I concur in part and dissent in part. I agree with the majority that the Protection of Persons and Property Act (Act) creates a statutory immunity but leaves intact the common law defenses of habitation, of others, and of self-defense. While a criminal defendant is entitled to have the issue of statutory immunity decided prior to trial by a judge, once the case goes to trial a defendant’s right to a jury charge on these defenses is determined under common law principles. I therefore agree that appellant was not entitled to a jury charge on the presumption created by S.C.Code Ann. § 16-11-440(C) (Supp.2012). However, since that charge was given, and since it was hopelessly confusing when viewed in light of the charge on common law self-defense, and since the trial judge, acting without benefit of our decision in State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011), denied appellant’s immunity request under an incorrect standard,6 I would reverse his convictions and remand for a new trial.
. The trial judge held that appellant was not entitled to immunity using the directed verdict standard of "any evidence” to deny the request rather than asking whether appellant had proven immunity by a preponderance of the evidence.