                       THE STATE OF SOUTH CAROLINA 

                            In The Supreme Court 


             The State, Petitioner,

             v.

             Theodore Manning, Respondent.

             Appellate Case No. 2015-000204



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS


                           Appeal From Richland County
                      G. Thomas Cooper, Jr., Circuit Court Judge

                               Opinion No. 27664 

                  Heard November 4, 2015 – Filed September 7, 2016 


                                      REVERSED


             Attorney General Alan McCrory Wilson and Assistant
             Attorney General William M. Blitch, Jr., both of
             Columbia, for Petitioner.

             Luke Adcock Shealey, of The Shealey Law Firm, LLC,
             and Elizabeth Fielding Pringle, both of Columbia, for
             Respondent.


ACTING JUSTICE TOAL:                    We granted the State's petition for writ of
certiorari to consider the court of appeals' decision, State v. Manning, Op. No.
2014-UP-411 (S.C. Ct. App. filed Nov. 19, 2014), holding the trial court erred in
failing to conduct an evidentiary hearing to determine whether the immunity
provision of the Protection of Persons and Property Act (the Act)1 applied and
remanding the case to the trial court to conduct a full hearing. We reverse.



1
    Relevant to this appeal, the Act provides:

         (A) A person is presumed to have a reasonable fear of imminent peril 

         of death or great bodily injury to himself or another person when 

         using deadly force that is intended or likely to cause death or great 

         bodily injury to another person if the person:
	

         (1) against whom the deadly force is used is in the process of 

         unlawfully and forcefully entering, or has unlawfully and forcibly 

         entered a dwelling, residence, or occupied vehicle, or if he removes or 

         is attempting to remove another person against his will from the 

         dwelling, residence, or occupied vehicle; and 


         (2) who uses deadly force knows or has reason to believe that an 

         unlawful and forcible entry or unlawful and forcible act is occurring 

         or has occurred. 


         (B) The presumption provided in subsection (A) does not apply if the 

         person: 


         (1) against whom the deadly force is used has the right to be in or is a 

         lawful resident of the dwelling, residence, or occupied vehicle
	
         including, but not limited to, an owner, lessee, or titleholder . . . . 

         ...


         (C) A person who is not engaged in an unlawful activity and who is 

         attacked in another place where he has a right to be . . . has no duty to 

         retreat and has the right to stand his ground and meet force with force, 

         including deadly force, if he reasonably believes it is necessary to 

         prevent death or great bodily injury to himself or another person or to 

         prevent the commission of a violent crime . . . . 


S.C. Code Ann. § 16-11-440 (2015).
                       FACTS/ PROCEDURAL BACKGROUND

       Theodore Manning (Respondent) was charged with murder following the
death of his girlfriend, Mikki McPhatter (the victim). The victim died after being
shot in the back of the head in Respondent's home. It is undisputed that the victim
was unarmed. Another of Respondent's girlfriends, Kendra Goodman, led police
to the victim's abandoned and burned vehicle, where her charred skeletal remains
were discovered in the trunk.

       Respondent sought immunity from prosecution under Act and in the
alternative claimed he shot the victim in self-defense. At a pre-trial hearing,
Respondent's counsel relied upon Respondent's statement to police, introduced as
an exhibit by the State, to support his immunity claim. In the statement,
Respondent maintained he had taken a gun away from the victim during an
argument, but ultimately "pulled the trigger to show her to stop playing":

      It was a disagreement between the two of us. I was disregarding some
      of her questions when it came to the relationship . . . which turned into
      an argument that got heated. [The victim] picked up the firearm,
      pointed it at me. I asked her what the hell was she thinking. She asked
      me was I still serious, referring to whether or not I wanted to have
      kids with her. I told her that it was just friends with benefits, which
      made her even madder. I told her to stop playing and took the gun
      from her. I grabbed her hands and just took it from her. Then I pointed
      it at her and asked her "Are you fucking crazy[.]" I told her that "You
      can't be mad at me because when I came up to see you last you were
      asking me if I wanted to be friends with benefits." She was still
      talking about whether I was serious. The whole time she was crying . .
      . even when she was pointing the gun at me she was crying. She hit
      the gun and I asked her again "Are you fucking crazy[?]" She told me
      "You're just like everybody else. You said that you were going to be
      there for me and you hurt me just like everybody else." She went to
      take a step like motioned toward me, but she pivot [sic] when she did
      it and I pulled the trigger to show her to stop playing. I didn't see
      where the bullet went.
        Based on this statement, and considering it as an undisputed recitation of the
facts, the trial judge heard arguments on the immunity motion from both sides.
Respondent's counsel argued the statement constituted a "prima facie" showing,
rebuttable by the State, that Respondent was entitled to immunity under the Act
because the incident occurred in Respondent's home and the victim "pulled a gun
on [Respondent]," Respondent "then disarmed her, and she came at him and he
pulled the trigger." The State argued that because Respondent's statement
indicated that the victim was unarmed when he shot her, Respondent was not in
fear of great bodily injury or death at that time. Further, the State argued that the
victim was a guest in Respondent's home, and therefore, she did not unlawfully or
forcibly enter the residence, which is required to invoke the Act's presumption of
reasonable fear of imminent peril.

      After considering Respondent's statement to police and hearing arguments
from counsel for both sides, the trial court denied Respondent's pretrial motion for
immunity. The matter then proceeded to a jury trial. Respondent was convicted of
voluntary manslaughter and sentenced to thirty years in prison.

       Respondent appealed, and the court of appeals found, inter alia, that the trial
court was required to grant Respondent a full evidentiary hearing prior to
determining whether the immunity provision applied, and therefore the court of
appeals remanded the case for a full hearing. See State v. Manning, Op. No. 2014-
UP-411 (S.C. Ct. App. filed Nov. 19, 2014). We granted the State's petition for a
writ of certiorari to decide whether this was in error.

                                   LAW/ANALYSIS

      The State argues that the court of appeals erred in finding the trial court is
required to conduct a complete testimonial evidentiary hearing prior to ruling on
whether the immunity provision of the Act applies. We agree.

     In State v. Duncan, this Court interpreted the plain language of section 16-
11-450(A) of the South Carolina Code2 to require that the immunity determination

2
 See S.C. Code Ann. § 16-11-450(A) (providing "[a] person who uses deadly force
as permitted by the provisions of this article or another applicable provision of law
be made pre-trial. 404, 410, 709 S.E.2d 662, 665 (2011). More specifically, the
Court stated:

      [By] using the words "immune from criminal prosecution," the
      legislature intended to create a true immunity, and not simply an
      affirmative defense. We also look to the language of the statute that
      provides, "the General Assembly finds that it is proper for law-abiding
      citizens to protect themselves, their families, and others from intruders
      and attackers without fear of prosecution or civil action for acting in
      defense of themselves and others." We agree with the circuit court
      that the legislature intended defendants be shielded from trial if they
      use deadly force as outlined under the Act. Immunity under the Act is
      therefore a bar to prosecution and, upon motion of either party, must
      be decided prior to trial. Accordingly, we find the trial court properly
      made a pre-trial determination of respondent's immunity.

Id. The Court further explained that the appropriate standard of review in pre-trial
determination would be a preponderance of the evidence. Id. at 411, 709 S.E.2d
662, 665.

        Neither the Act, nor Duncan, sets forth a specific type of hearing or
procedure to be followed when a criminal defendant claims immunity under the
Act. See State v. Curry, 406 S.C. 364, 375 n.3, 752 S.E.2d 263, 268 n.3 (2013)
(noting "the Act is silent on the procedure to follow when an accused seeks
immunity and "Duncan interprets the Act to require a pretrial determination by the
trial court"). Rather, all that is required under the Act and Duncan is that the court
makes the immunity determination prior to trial.

       Respondent urges this Court to add the gloss of a full evidentiary hearing to
the statutory language. In considering his request, we find instructive State v.
Wessinger, 408 S.C. 416, 759 S.E.2d 405 (2014), which interpreted section 44-48-

is justified in using deadly force and is immune from criminal prosecution and civil
action for the use of deadly force, unless the person against whom deadly force
was used is a law enforcement officer acting in the performance of his official
duties and he identifies himself in accordance with applicable law or the person
using deadly force knows or reasonably should have known that the person is a law
enforcement officer.").
30(2) of the Sexually Violent Predator Act (SVP Act).3 Subsection o of that
section permits the trial judge to make a determination of whether the crime for
which a person is charged qualifies as sexually violent even when it is not
specifically enumerated under the SVP Act.4 In Wessinger, this Court considered
whether a criminal defendant is entitled to a full evidentiary hearing prior to the
judge making this determination, and held "that the scope and necessity of a
separate evidentiary hearing is to be determined on a case-by-case basis." 408 S.C.
at 420, 759 S.E.2d at 407. Moreover, the Court found "no error in the procedure
utilized here where the circuit court's decision was based on the uncontested facts
in the record, all of which were specifically acknowledged by appellant under
oath." Id. at 421, 759 S.E.2d at 407. We agree with the State that this flexible
approach is likewise desirable in immunity determinations under the Act. Not only
does this approach permit the trial judge to tailor the hearing to the needs of each
case, but it serves to save precious judicial resources in cases like this one where
an extensive hearing is simply unnecessary.5

       We review immunity determinations under an abuse of discretion standard.
Curry, 406 S.C. at 370, 752 S.E.2d at 266; see also State v. Douglas, 411 S.C. 307,
316, 768 S.E.2d 232, 237 (Ct. App. 2014) ("An abuse of discretion occurs when
the trial court's ruling is based on an error of law or, when grounded in factual
conclusions, is without evidentiary support." (quoting State v. Pittman, 373 S.C.
527, 570, 647 S.E.2d 144, 166–67 (2007))). Here, the undisputed facts support a

3
    See S.C. Code Ann. § 44-48-30(2) (Supp. 2013).
4
  See S.C. Code Ann. § 44-48-30(2)(o).
5
  To this end, we find unpersuasive Respondent's argument that because Duncan
imposes a preponderance of the evidence standard on the trial court, the immunity
determination is distinguishable from determinations made under the SVP Act. As
the evidentiary hearing standard is a flexible one, there may be times that a trial
court requires more evidence, be it testimonial or otherwise, to make the immunity
determination. This is not that case. Here, Respondent's counsel asserted that the
evidence submitted to the trial court, in the form of Respondent's statement, set
forth a prima facie showing of immunity. Further, counsel did not ask to call any
witnesses in support of his position, did not object to the trial court's hearing the
motion without the calling of witnesses, and did not ask to proffer additional
testimony or indicate to the trial court the additional testimony he would have
presented had he been entitled to a full testimonial evidentiary hearing.
denial of immunity under subsections (A) and (C) of section 16-11-440. First, the
victim was an invited guest in Respondent's home, meaning Respondent was not
entitled to the presumption of immunity under subsection (A). See Curry, 406 S.C.
at 370, 752 S.E.2d at 266 ("Section 16–11–440(A), the main thrust of the Act,
provides a presumption of reasonable fear of imminent peril of death or great
bodily injury to a person who uses deadly force if he is attacked by or attempting
to remove another from a dwelling, residence, or occupied vehicle. However, the
presumption of subsection (A) does not apply if the victim has an equal right to be
in the dwelling or residence. S.C. Code Ann. § 16–11–440(B). Because Collins
was a social guest and rightfully in the apartment, subsection (A) is inapplicable to
Appellant, and he is therefore defaulted into subsection (C), which deals with the
use of force by one who is attacked in another place where he has a right to be.").
Further, the victim was unarmed at the time she was shot, meaning we cannot say
that the trial judge abused his discretion in denying Respondent immunity under
subsection (C). See S.C. Code Ann. § 16-11-440(C) (providing "[a] person who is
not engaged in an unlawful activity and who is attacked in another place where he
has a right to be . . . has no duty to retreat and has the right to stand his ground
and meet force with force, including deadly force, if he reasonably believes it is
necessary to prevent death or great bodily injury to himself or another person or to
prevent the commission of a violent crime . . . ." (emphasis added)). Because these
essential facts were undisputed and the trial judge heard legal arguments from both
sides on the applicability of these subsections in Respondent's case, we agree with
the State that the trial judge heard and considered all that was necessary to make
the immunity determination by a preponderance of the evidence. As a result,
Respondent received the pre-trial determination he was entitled to under Duncan,
and the trial court did not abuse its discretion in making that ruling without first
conducting a full testimonial evidentiary hearing.6




6
  Because we find the hearing here was sufficient, we need not address the State's
alternative argument that the court of appeals erred in remanding the case to the
trial court instead of reviewing the trial court's determination that Respondent was
not entitled to immunity under the Act under a harmless error analysis. See Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999).
                                   CONCLUSION

        Accordingly, the court of appeals' decision remanding this case to the trial
court for a full evidentiary hearing is

REVERSED.

BEATTY, KITTREDGE and HEARN, JJ., concur. PLEICONES, C.J.,
dissenting in a separate opinion.
CHIEF JUSTICE PLEICONES: I respectfully dissent and would affirm the
unpublished decision of the Court of Appeals that remanded this matter to the
circuit court for an evidentiary hearing on respondent's claim for immunity
pursuant to the Protection of Persons and Property Act (the Act).

A defendant claiming immunity under the Act must establish his entitlement to this
relief by a preponderance of the evidence in a pretrial "determination." State v.
Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011); see also State v. Curry, 406 S.C.
364, 752 S.E.2d 263 (2013). The majority holds today that in making this pretrial
determination the circuit judge need not always hold a full evidentiary hearing, but
rather may limit the defendant's right to present evidence entitling him to immunity
in order "to save precious judicial resources." 7 The majority then proceeds to
"review" the merits of the trial court's denial of respondent's immunity claim under
an abuse of discretion standard. What the majority glosses over, however, is that
the trial judge held that the Act did not apply and therefore denied respondent's
request for an evidentiary hearing on the merits of his immunity claim,
compounding his earlier refusal to allow respondent to call a forensics and
ballistics expert to testify in support of respondent's self-defense theory. While the
trial judge neither heard evidence8 nor made a pre-trial determination that
respondent was not entitled to immunity under the Act, the majority nonetheless
states it is upholding the pre-trial determination under an abuse of discretion

7
  The majority's reliance on State v. Wessinger, 408 S.C. 416, 759 S.E.2d 405
(2014) and the statutory scheme for determining whether a defendant should be
designated a sexually violent predator (SVP) is misplaced. In making this
determination, the trial/plea judge is vested with complete discretion to decide
whether a crime is sexually violent, without any requirement that the State actually
request such a finding, much less that it meet any burden of proof. Since the SVP
designation rests completely in the trial judge's discretion, it is not surprising that
the decision whether to hold an evidentiary hearing is made on a case-by-case
basis. The Act, on the other hand, requires a motion by a party, and places on the
defendant the burden of proving entitlement to immunity by a preponderance of
the evidence. Duncan, supra. In my opinion, the majority errs in relying on the
SVP procedure to decide the process due a defendant under the Act.
8
  The trial judge's ruling was based solely on the argument of counsel and the
solicitor's reading of excerpts from respondent's statement to the police. It is
axiomatic that arguments of counsel are not evidence. E.g., Sosebee v. Leeke, 293
S.C. 531, 362 S.E.2d 22 (1987).
standard, finding "the hearing here was sufficient." The record belies the fact that
there was any evidentiary hearing afforded to respondent, much less a "sufficient"
one.

In my opinion, the Court of Appeals properly remanded this case in order to permit
respondent an opportunity to present evidence in support of his claim of immunity
under the Act.
