               IMPORTANT NOTICE
         NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4}(C},
THIS OPINl01'1 IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                               RENDERED: FEBRUARY16, 2017
                                                      NOT TO BE PUBLISHED

               juprtmt filnurf nf ~tnfurku
                              2016-SC-000089-MR


TEVIN DEVON WRIGHT                                                    APPELLANT


                 ON APPEAL FROM FAYETIE CIRCUIT COURT
V.               HONORABLE KIMBERLYN. BUNNELL, JUDGE
                            NO. 14-CR-00436


COMMONWEALTH OF KENTUCKY                                                APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, Tevin Wright, conditionally pled guilty to first-degree

manslaughter, tampering with physical evidence, and being a first-degree

persistent felony offender. He was sentenced to 38 years' imprisonment and

now appeals as a matter of right, Ky. Const.§ 110(2)(b). At trial, Appellant

claimed immunity from prosecution pursuant to KRS 503.085 (which provides

criminal and civil immunity for the use of permitted force). However, the trial

court found probable cause existed to conclude Appellant used unlawful deadly

           '
physical force. In entering his guilty plea, Appellant reserved his right to

appeal the immunity claim. Appellant now raises that claim as the sole issue

on appeal to this Court. For the reasons that follow, we affirm.
                               I. BACKGROUND

      One evening, Appellant patronized Diva's Gentlemen's Club with several

friends. Curtis Simmons was also at the club with friends, including Eric

Adams.

      At some point in the night, Appellant encountered Adams in the

bathroom. Appellant sold cocaine, and he allowed Adams a sample as a

prospective buyer. After arguing over the cocaine's quality, Adams robbed

Appellant of the drugs at gunpoint. It is unclear exactly what happened

thereafter, but an altercation apparently ensued in the club between Appellant,

Adams, Simmons, and others. Diva's bouncers ejected Appellant and his

friends, who then drove to a different gentlemen's club across town.

      However, Appellant did not stay away. Instead, he and his friends

returned to Diva's a few hours later, near closing time in the early-morning

hours. Shortly before Appellant's return, surveillance footage showed Adams

and his girlfriend exit the club and enter their car. The footage then showed

Appellant parking his car next to a black SUV and exiting his car. It turned

out Simmons had parked in front of the same SUV, as the footage next shows

Simmons leaving the club and approaching his car. Appellant and Simmons

appeared to exchange words, and Simmons took off his jacket and placed it on

the hood of his car.

      Appellant can then be seen on the footage holding a handgun and

moving behind the black SUV in a crouched position. He rounded the SUV and

shot at Simmons, who retreated behind his own car. Appellant followed and

                                       2
continued shooting until Simmons collapsed behind his car. Appellant and his

friends then returned to Appellant's car and left the parking lot.

      In the meantime, Adams left his car and crouched by the fallen

Simmons. Adams then shot a handgun toward Appellant's fleeing car.

      Simmons died from the gunshot wounds.

      Appellant was arrested about two weeks later in Muncie, Indiana. He

spoke with investigators and was charged with shooting and killing Simmons

and disposing of the gun.

      He claimed self-defense and sought immunity from prosecution under

KRS 503.085. The trial court conducted a hearing on his motion to dismiss the

indictment. At this hearing, the Commonwealth called the lead investigator,

Detective Franz Wolff, to testify and introduced the video surveillance footage of

the shooting. The Commonwealth also played portions of the audio recording

of Appellant's statements to police. Following the hearing, the court found

probable cause existed to believe Appellant's use of deadly force was unjustified

and denied the motion to dismiss.

      Appellant entered a conditional guilty plea to first-degree manslaughter,

tampering with physical evidence, and being a first-degree persistent felony

offender, and the court sentenced him to a total of 38 years' imprisonment.

The guilty plea was conditioned on his retaining the right to appeal the trial

court's ruling on his claim to immunity under KRS 503.085. He now appeals

that ruling to this Court as a matter of right. See Ky. Const.§ 110(2)(b).



                                        3
                                 II. ANALYSIS

      When a claim of immunity is raised under KRS 503.085, the prosecution

may proceed if the court believes "there is probable cause to conclude that the

force used was not legally justified" under the controlling provisions of KRS

Chapter 503. Rodgers v. Commonwealth, 285 S.W.3d 740, 754 (Ky. 2009). The

standard of review of such a determination is whether the trial court had a

"substantial basis" for finding probable cause that the defendant's use of force

was unlawful. Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014).

      Probable cause is "a fluid concept-turning on the assessment of

probabilities in particular factual contexts-not readily, or even usefully,

reduced to a neat set of legal rules." Rlinois v. Gates, 462 U.S. 213,232

(1983). It has been defined as "reasonable grounds for belief, supported by less

than prima facie proof but more than mere suspicion."     Commonwealth v.

Jones, 217 S.W.3d 190, 200 (Ky. 2006) (quoting United States v. Bennett, 905

F.2d 931, 934 (6th Cir. 1990)) (internal quotation marks omitted). Judges

must consider the totality of the circumstances then known to determine

whether probable cause exists to conclude that a defendant's use of force was

unlawful. Rodgers, 285 S.W.3d at 754-55.

      Based on the evidence of record, the trial court had a substantial basis

for finding probable cause existed to believe Appellant's use of force was not

legally justified. The video-surveillance evidence alone provided a substantial

basis for the trial court's finding. It showed Appellant acting as the apparent

initial aggressor and shooting at Simmons, who appeared on the footage to be

                                        4
unarmed. Even after Simmons retreated, the footage showed Appellant follow

and shoot him several more times before returning to his car and leaving the

Diva's parking lot in haste. This video evidence alone provides the necessary

basis for upholding the trial court's denial of Appellant's motion to dismiss.

That basis is only strengthened by the evidence of the altercation between the

parties earlier that night and Appellant's apparent post-shooting flight to

Indiana.

      Although Appellant highlights other evidence he maintains supports his

immunity claim, he cites no authority mandating that we rule in his favor. We

see no need to list that evidence in detail, other than to note that, at best, it

may support an inference that Simmons had also been armed with a handgun

in the parking lot, thus supporting Appellant's self-defense claim. (There was

other evidence refuting this inference as well.)

      As this Court made clear in Rodgers, the immunity determination under

KRS 503.085 is to be made based on the then-existing evidence of record, with

the burden being on the Commonwealth to establish probable cause to believe

the defendant's use of force was unlawful. 285 S.W.3d at 755. Furthermore,

Rodgers directly rejected the argument that the statute created a right for the

defendant to counter the Commonwealth's probable-cause showing with his

own proof supporting his claim that the use of force was justified. Id. In other

words, once the Commonwealth meets its probable-cause burden under

KRS 503.085, that ends the inquiry and the prosecution may go forward.



                                         5
Because the trial court had a substantial basis for finding that burden met

here, we uphold its rejection of Appellant's claim to immunity.

                                 III. CONCLUSION

      Because the Fayette Circuit Court had a substantial basis for finding

that Appellant's use of deadly physical force was unlawful, it correctly

overruled Appellant's motion to dismiss under KRS 503.085. The judgment of

conviction and sentence on Appellant's conditional guilty plea is therefore

affirmed.


      All sitting. All concur.




COUNSEL FOR APPELLANT:

Robert Chung-Hua Yang
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

James Daryl Havey
Assistant Attorney General




                                        6
