ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
Phipps, Senior Appellate Court Judge.
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. 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
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 S.E.2d
242) (2015), quoting Bunn v. State, 284 Ga. 410, 413
(3) (667 S.E.2d 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 S.E.2d 138) (2010) (citation
and punctuation omitted); see also Sifuentes v.
State, 293 Ga. 441, 444 (2) (746 S.E.2d 127) (2013).
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
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 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.
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 "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.
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.
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.
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
(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 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
Barron v. State, 219 Ga.App. 481 (465 S.E.2d 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 from the definition of this term."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 S.E.2d 487) (1988) (a defendant
who attacked his mother to ...