                            THIRD DIVISION
                           ELLINGTON, P. J.,
          BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      June 1, 2018




In the Court of Appeals of Georgia
 A18A0433. THE STATE v. MORGAN.

      PHIPPS, Senior Appellate Court Judge.

      After Daniel Morgan was charged with aggravated assault and family-violence

battery arising from a chokehold he applied to his pregnant wife, Morgan filed a

motion for immunity under OCGA § 16-3-24.2.1 After a hearing, the trial court

granted the motion. On appeal from this judgment, the State argues that the court

erred because Morgan cannot have been justified in using force in response to his

wife’s threat to put the couple’s dog out of their house. We agree and reverse.


      1
        That Code section provides in pertinent part that “[a] person who uses threats
or force in accordance with Code Section . . . 16-3-24 [in defense of property other
than a habitation] shall be immune from criminal prosecution therefor unless in the
use of deadly force, such person utilizes a weapon the carrying or possession of
which is unlawful by such person under [OCGA § 16-11-120 et seq., the Georgia
Firearms and Weapons Act].”
      “To avoid trial based on a justification defense presented at an immunity

hearing, ‘a defendant bears the burden of showing that he is entitled to immunity

under OCGA § 16-3-24.2 by a preponderance of the evidence.’” Cotton v. State, 297

Ga. 257, 258 (2) (773 SE2d 242) (2015), quoting Bunn v. State, 284 Ga. 410, 413 (3)

(667 SE2d 605) (2008). On appeal from a trial court’s grant or denial of pretrial

immunity, “we review the evidence in the light most favorable to the trial court’s

ruling, and we accept the trial court’s findings with regard to questions of fact and

credibility if there is any evidence to support them.” State v. Bunn, 288 Ga. 20, 23

(701 SE2d 138) (2010) (citation and punctuation omitted); see also Sifuentes v. State,

293 Ga. 441, 444 (2) (746 SE2d 127) (2013).

      Thus viewed in favor of the trial court’s judgment, the record shows that in late

2016, Morgan and his wife Tabitha shared a house in Rome with Tabitha’s daughter,

born in July 2016, and two dogs – Bella, an 8-pound Japanese Chin, and Pippin, a

“big” Great Pyrenees. Morgan considered Bella his dog, but Tabitha took care of both

dogs while he was at work during the day. After Morgan learned in late 2016 that he

was not the biological father of the daughter, the couple’s relationship deteriorated.

      On March 29, 2017, Tabitha was four months pregnant with her second child

and on doctor’s orders of mild bed rest. After Morgan arrived home from work that

                                          2
evening, the couple began an argument, during which Tabitha told Bella to stop

“digg[ing] her claws” into the couple’s leather couch. At this, Morgan became upset

and told Tabitha “not to tell his dog what to do.” When Tabitha asked Morgan to

leave the house, he responded that it was his house and that “she could leave.” When

Tabitha again asked that he leave, he responded that he was “not leaving without my

guns and my dog.” After Morgan again insisted that he would not leave the house,

Tabitha picked up Bella and began to walk toward the front door, saying, “Let’s go,

Dan, you know. Bella is going with or without you.” At this, Morgan exclaimed,

“[D]on’t touch my f***ing dog,” grabbed Tabitha by the hair, jerked her towards him,

and placed her in a headlock with the crook of his arm such that she could not speak.

When Tabitha struggled, Morgan testified that he “tighten[ed] [his] grip,” causing her

to see spots in front of her eyes, at which point she lost her hold on the dog and

Morgan released her. There was no evidence that the dog was harmed at any time

before or during the incident.

      The officer responding to Tabitha’s 911 call noticed a red mark extending from

“the bottom side of her chin on the right side of her face down her neck” towards her

collarbone. The officer testified at the hearing that the mark was of a “pretty

substantial size” and “had to [have been the result of] some kind of pressure” by

                                          3
“something that was pressed up against her neck,” such as “a headlock from behind.”

Tabitha suffered for some weeks afterward from premature contractions, bleeding,

and elevated blood pressure.

      Morgan was arrested for family-violence battery and was later charged with

aggravated assault as well. He then moved for immunity, arguing that he had been

“reasonably defending” his dog Bella against “tortious damage and criminal

interference” by the victim. After a hearing, the trial court filed an order finding in

relevant part that the victim had threatened to throw the dog out of the house and that

in attempting to prevent her from doing so, Morgan had pulled the victim’s hair and

had “put his arm around [the victim’s] neck and beg[u]n to squeeze,” rendering the

victim “disoriented.” The trial court then drew conclusions of law including that, by

a preponderance of the evidence, Morgan was “justified to respond with force” to

protect the dog; that his use of force, including placing his arm around the victim’s

neck and squeezing, was “reasonable and justified to prevent severe injury to his

dog”; and that Morgan “lacked the intent to commit any crime[.]” The trial court thus

concluded that Morgan was entitled to immunity under OCGA § 16-3-24.2.




                                          4
      1. On appeal, the State argues that the court erred in granting Morgan immunity

because his use of force against the victim was not reasonable or justified as a matter

of law. We agree.

      Morgan was charged with family-violence battery for grabbing the victim by

the shirt as well as aggravated assault for “placing [his] hands and arms around the

neck of” the victim “and squeezing,” which was “like[ly] to result in” her

“strangulation.” Morgan moved for immunity pursuant to OCGA § 16-3-24.2, which

provides in relevant part that “[a] person who uses threats or force in accordance

with” Code sections including OCGA § 16-3-24, concerning the use of force in

defense of property other than a habitation, “shall be immune from criminal

prosecution therefor. . . .” OCGA § 16-3-24 provides in relevant part:

      (a) A person is justified in threatening or using force against another
      when and to the extent that he reasonably believes that such threat or
      force is necessary to prevent or terminate such other’s trespass on or
      other tortious or criminal interference with . . . personal property: (1)
      [l]awfully in his possession[;] [or] (2) [l]awfully in the possession of a
      member of his immediate family . . . .


      (b) The use of force which is intended or likely to cause death or great
      bodily harm to prevent trespass on or other tortious or criminal
      interference with real property other than a habitation or personal

                                          5
      property is not justified unless the person using such force reasonably
      believes that it is necessary to prevent the commission of a forcible
      felony.


(Emphasis supplied.) And OCGA § 16-1-3 (6) defines a forcible felony as “any

felony which involves the use or threat of physical force or violence against any

person.”

      In Barron v. State, 219 Ga. App. 481 (465 SE2d 529) (1995), we held that a

trial court did not err in denying a defendant’s motion for directed verdict under

OCGA § 16-3-24 (a) when the evidence showed that the defendant had used

“physical force” to recover personal property taken from his car by his estranged wife

during his visit to the couple’s children at her house. Id. at 482-483. We observed that

“the affirmative defense contained in OCGA § 16-3-24 (a) was not available” to the

defendant because “the victim’s conduct in taking personal property from the lawful

possession” of the defendant “was neither tortious [n]or criminal interference within

the meaning of the statute.” Id. at 482-483. This was so, we said, because “the

personal property taken by the victim was not the ‘property of another’ within the

definition provided by OCGA § 16-1-8 (3)[,] which excludes property of a spouse




                                           6
from the definition of this term.”2 Id. at 483. Likewise, we noted, “the victim’s

conduct is not cognizable as tortious interference” because she was protected by “the

doctrine of interspousal tort immunity,” with no facts to justify any “deviation from

a strict application of the doctrine.” Id. For these reasons, we concluded that the

estranged husband was, as a matter of law, not entitled to assert the affirmative

defense of justification by reason of defense of property. Id.; see also Mitchell v.

State, 187 Ga. App. 40, 43 (2) (369 SE2d 487) (1988) (a defendant who attacked his

mother to prevent his dog from being put outside the house they shared was not

authorized to receive any further instruction on justification because “ensuring that

one’s dog gets to stay inside a house” does not justify the use of force as against “any

. . . situation enumerated in OCGA § 16-3-20 et seq.”).

      Here, it is undisputed that Morgan and the victim were married at the time of

the altercation at issue, that they lived in the house where the incident occurred

together, and that the victim routinely took care of Bella. Because the victim was

entitled to handle the dog, including putting it out of the house, the defense of

justification in the use of force for the purpose of resisting the victim’s attempt to do

      2
       OCGA § 16-8-1 (3) defines “property of another” as including “property in
which any person other than the accused has an interest,” but excludes “property
belonging to the spouse of an accused or to them jointly.”

                                           7
so was not available to Morgan. According to Morgan’s own testimony, moreover,

he reacted to the victim’s struggling against the chokehold by “tighten[ing his] grip,”

which was not justified in the absence of evidence that the victim was committing any

crime, let alone a forcible felony, concerning the dog. See OCGA § 16-3-24 (b)

(barring the use of deadly force against an intrusion on personal property “unless the

person using such force reasonably believes that it is necessary to prevent the

commission of a forcible felony”); Mitchell, 187 Ga. App. at 43 (2). Because there is

no evidence to support the conclusion that Morgan was entitled to use force against

his wife in order to protect the couple’s dog, the trial court erred when it granted

Morgan’s motion for immunity.

      2. Because Morgan was not entitled to a defense of justification in the use of

force in defense of personal property, he would not be entitled to a charge on the

subject in any subsequent proceedings on charges arising from these facts. Floyd v.

State, 277 Ga. App. 166, 167 (626 SE2d 149) (2006) (in light of Barron, a

defendant’s request for a charge on justification by reason of defense of property

concerning his use of force against his wife to recover the checkbook she took from




                                          8
his truck should have been denied); Mitchell, 187 Ga. App. at 43 (2).

      Judgment reversed. Elllington, P. J., concurs. Bethel, J., concurs specially.

*THIS     OPINION       IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2 (a).




                                         9
 A18A0433. THE STATE v. MORGAN.



      BETHEL, Judge, concurring specially.

      While the record in this case reflects that the Morgans were less than the

picture of domestic bliss, it is clear that they were lawfully married at the time of the

events in question. As such, I find no support for the notion that personal property

belonging to one spouse can be the subject of a trespass on or other tortious or

criminal interference by the other spouse for purposes of the provisions of OCGA §

16-3-24 or, by extension, OCGA § 16-3-24.2. See OCGA § 16-8-1 (3); Barron v.

State, 219 Ga. App. 481, 483 (465 SE2d 529) (1995). In my view, nothing more need

be analyzed.

      Simply stated you may not strangle or otherwise do violence to your spouse

because you object to the manner in which they are handling your personal property

and claim the protections of OCGA § 16-3-24.
