Dillard, Chief Judge.Diante Jermaine Smith was indicted on charges of aggravated assault and reckless conduct. Smith filed a motion to dismiss the charges on grounds of immunity from prosecution, which the trial court granted following a hearing. The State appeals from the dismissal, arguing that the trial court erred by (1) hearing Smith’s motion after the start of trial and (2) granting the motion when there was no evidence that Smith defended himself within the meaning of OCGA § 16-3-21. For the reasons set forth infra, we affirm. Viewing the record in the light most favorable to the trial court’s ruling,[1] the evidence shows that, on the day in question, Smith returned to ex-girlfriend Rashell Merrell’s family home. Rashell had given Smith permission to come by the house to pick up some of his belongings while her family was away.[2] Upon his arrival, Smith parked his vehicle on the street, to one side of the driveway’s entrance. Smith had been at the home for approximately twenty minutes when he heard the family’s distinctively loud utility van nearing the residence, and he immediately exited the house and started walking toward his vehicle. The van approached the home as Smith neared his vehicle, and one of Rashell’s four brothers, Dillon Merrell, exited the van and ran toward Smith, who in turn sprinted the remaining distance to his car.[3] But Smith reached his vehicle first, got inside, and locked the doors. The two men had a strained history.During his time with the Merrell family, Smith had been employed by the father, and he had witnessed Dillon shove his father in extreme anger over work-related disagreements. Dillon had also previously shoved Smith in an incident years earlier. Additionally, Smith was aware that Dillon had a reputation for being “[v]ery aggressive, angry, [and] crazy.” And as a result of this knowledge and these prior altercations, Smith felt “[v]ery unsafe” by Dillon’s approach, feared that the situation “was going to get ugly[,]” and intended to leave. But after Smith entered and locked his vehicle, Dillon planted himself directly in front of the hood of the car. Smith tried to wave Dillon off, telling him that he wished to leave, but Dillon refused to move and remained in front of the car. According to Smith, Dillon appeared to be “ hostile[,]” “ tensed up,” “extremely angry,” and “puffed up,” and he was certain that Dillon would attack him if he exited the vehicle. Meanwhile, according to Rashell, another one of her brothers—with whom Smith also had a previous physical altercation—was standing nearby in the yard.Smith started his vehicle and Dillon then jumped on top of its hood, grabbing hold of the space between the hood and windshield. At this point, Smith put the car into gear, but Dillon still did not get off the vehicle, so Smith proceeded to accelerate. Smith then left the subdivision by way of the exit known to him, driving up the street in a linear path. In doing so, Smith made only a few necessary turns until he reached the end of the subdivision, where he stopped the vehicle. Dillon then dismounted from the hood and angrily punched the driver’s side window before Smith drove away.Smith was subsequently indicted on charges of aggravated assault and reckless conduct. Then, on October 23, 2017, Smith filed a motion to dismiss the indictment, contending that he was immune from prosecution and entitled to the defense of justification under OCGA §§ 16-3-24.4 and 16-3-21. Following a hearing, the trial court granted Smith’s motion on October 27, 2017, dismissing the indictment with prejudice. This appeal by the State follows. 1. We first address the State’s argument that the trial court erred in hearing and ruling upon Smith’s motion to dismiss after a jury was struck and, thus, after the beginning of trial.[4] We disagree. OCGA § 16-3-24.2 provides, in relevant part, that “[a] person who uses threats or force in accordance with [OCGA §] 16321 . . . shall be immune from criminal prosecution therefor . . . .” And in Fair v. State,[5] the Supreme Court of Georgia determined that this Court had correctly construed and applied OCGA § 16-3-24.2 in a previous decision,[6] concluding that a trial court must rule pre-trial on a defendant’s motion that asserts entitlement to immunity.[7]Here, in granting Smith’s motion, the trial court explained that the motion had been filed “just prior to the jury being struck” on the first day of trial, and that the hearing on the motion was conducted the following day, October 24, 2017, “after the jury was struck due to the State’s witness, observer Rashell Lee Merrell (‘Merrell’), not being available before the jury was struck.” The court went on to note that “Merrell and Smith testified” and that “[n]o physical evidence was tendered by either party during this hearing.”The State concedes on appeal that it did not object to this procedure in the trial court and that, therefore, this enumeration of error has been waived. Nevertheless, the State urges us to reverse by finding plain error.[8] And in order to demonstrate plain error, each of the following four prongs must exist:First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.[9] In this case, assuming without deciding that the State satisfies the first two prongs, it cannot demonstrate the third prong—i.e., that its substantial rights were affected. Indeed, as the trial court explained in its order, the hearing was conducted “after the jury was struck due to the State’s witness . . . not being available before the jury was struck.”[10] If anything, the State benefitted from the case proceeding as it did, and it cannot now complain about the timing of the hearing on Smith’s motion, which was filed before the jury was struck. Accordingly, this enumeration of error is without merit.2. Next, the State argues that the trial court erred in granting the motion when there was no evidence Smith defended himself by using threats or force within the meaning of OCGA § 16-3-21. Again, we disagree. As explained supra, OCGA § 16-3-24.2 provides that “[a] person who uses threats or force in accordance with [OCGA §] 16321 . . . shall be immune from criminal prosecution therefor . . . .” And it is well established that a defendant “bears the burden of demonstrating entitlement to immunity from prosecution under OCGA § 16324.2 by a preponderance of the evidence.”[11] Finally, when we review a trial court’s ruling on such a motion, we must view the evidence in the light most favorable to the ruling, and the trial court’s findings of fact and credibility determinations must be accepted if there is any evidence to support them.[12] With these guiding principles in mind, we will now consider the State’s argument.Here, Smith claimed that he used threats or force in accordance with OCGA § 16-3-21, and the trial court agreed. OCGA § 16-3-21 provides, in relevant part, that[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in [OCGA §] 16323, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.[13] The State maintains that Smith failed to meet his burden of proof because he “never testified that he had used any force against Dillon,” apparently taking issue with Smith’s testimony that he did not wish Dillon harm and only wanted to leave, and with the testimony regarding (and the trial court’s finding) that Smith drove the vehicle after Dillon jumped on it and did so at a normal, safe speed. Likewise, the State also contends there was no evidence to support a finding that any use of force by Smith was necessary to defend himself.Contrary to the State’s assertions on appeal, there is ample evidence to support the trial court’s conclusions. After hearing the testimony presented by Smith and Rashell, the trial court accepted Smith’s description of the encounter (as detailed supra) over that provided by Rashell, who testified that Dillon did not have time to move out of the vehicle’s path. Rashell also testified that she was “not saying [Smith] hit Dillon” but that when Smith’s car “took off, Dillon ended up on the car because he didn’t have time to move to either side” and thus “fell over the car[.]” She explicitly denied that Smith “ drove into him and was like trying to kill him or anything,” and also denied that Smith swerved the vehicle as he drove off with Dillon on top, testifying that she only saw the vehicle drive straight. The trial court concluded that Dillon jumped onto the hood of the vehicle after Smith started it (but prior to acceleration), and discounted Rashell’s testimony to the contrary, determining that her contention that “Dillon had nowhere to go and did not have time to move [was] not borne out by the evidence.” Then, based upon both Smith and Rashell’s testimony, the court concluded that Smith drove at a normal, safespeed; that he did not swerve; and that there was no danger of Dillon being thrown from the hood. Accordingly, the court also determined there was no evidence the vehicle was used in a way likely to cause death or great bodily harm.[14] Instead, the court found that Dillon was and remained the initial aggressor and that Smith used his vehicle to protect himself in the manner that he reasonably believed necessary.[15] And because there is evidence to support the trial court’s conclusions, we affirm.[16]Judgment affirmed. Doyle, P. J., and Mercier, J., concur.
