☢ test - Í

evidence that victim was aggressor in parties’ confrontation. “Although Brown argues that he and the victim were engaged in mutual combat, that circumstance does not raise a defense of justification. McKee v. State, 280 Ga. 755, 756(2) (632 S.E.2d 636) (2006).” State v. Bunn, 288 Ga. 20, 701 S.E.2d 138 (September 20, 2010). In defendant police officer’s murder prosecution, trial court properly found that defendant proved immunity by a preponderance of the evidence. “[T]he trial court expressly found that Bunn reasonably would have held the perception that the driver of the vehicle would not stop, and that he posed an imminent threat to his life and physical well-being. The only effective means [Bunn] had to attempt to stop or pre-empt the danger was his weapon. [Bunn] fired his service weapon in his own self-defense at the driver and was justified in doing so.” “Nothing in this [preponderance of the evidence] standard requires the elimination of all fact disputes as a matter of law. Rather, ‘[t]he standard requires only that the finder of fact be inclined by the evidence toward one side or the other.’ Murray v. State, 269 Ga. 871, 873(2) (505 S.E.2d 746) (1998).” Evidence that driver didn’t actually intend to threaten officer with his vehicle is irrelevant: “the law is well-established that the subjective intent of a defendant is irrelevant to the assessment of a claim of justification. See Lewis v. State, 270 Ga. 891, 893(2) (515 S.E.2d 382) (1999) (justification defense assessed on whether circumstances would have ‘excited the fears of an objective reasonable person’). Likewise, fact questions regarding what the occupants of the Tahoe knew and what Bunn's partner (who admitted he tripped over a curb, fell and completely missed what occurred during the pertinent time period) may or may not have seen clearly have no relevance under the facts in this case to a determination whether Bunn himself reasonably believed at the time he fired his service weapon that his action was necessary to prevent death or great bodily injury to himself or his partner. OCGA § 16-3-21(a).” Benham dissents. Morgan v. State, 303 Ga.App. 358, 693 S.E.2d 504 (January 25, 2010). At defendant’s trial for kidnapping, aggravated assault, and related offenses committed against his girlfriend, trial court properly declined to give defendant’s requested charge on justification. “ Morgan argues that his actions were justified because he was trying to prevent M.S. from using methamphetamine, which could cause harm to herself and their unborn baby. At trial, evidence was submitted that M.S. had used methamphetamine during a prior pregnancy (including seven days before the baby's due date), that both she and her daughter tested positive for methamphetamine after the baby was born in March 2006, and that her first child was removed from M.S.'s custody by the Department of Family and Child Services (‘DFCS’) as a result and ultimately adopted after M.S. failed to comply with her case plan. Pretermitting whether M.S.'s methamphetamine use was relevant, Morgan points to no evidence that she used or threatened to use methamphetamine while she was pregnant with his child or to otherwise harm herself or the baby. Because there was no evidence of any imminent threat of harm, the trial court did not err in refusing to give a jury charge on justification.” Powell v. State, 286 Ga. 14, 685 S.E.2d 79 (October 19, 2009). At defendant’s trial for murder of his wife, trial court properly excluded evidence of victim’s alleged extramarital affairs. “Contrary to defendant's assertion, evidence of a prior extramarital affair does not constitute evidence of a previous difficulty or encounter. See McWilliams v. State, 280 Ga. 724, 725(3) (632 S.E.2d 127) (2006). Moreover, unless a defendant can show that he killed his wife under a violent, sudden impulse of passion due to his wife's adultery, the evidence is irrelevant and inadmissible. Compare Culmer v. State, 282 Ga. 330, 335(4) (647 S.E.2d 30) (2007) (adulterous conduct can give rise to sufficient provocation if it occurred immediately prior to killing in such a way as to incite sudden irresistible passion) with Burger v. State, 238 Ga. 171 (231 S.E.2d 769) (1977) (adulterous conduct alone does not justify killing of spouse).” Brower v. State, 298 Ga.App. 699, 680 S.E.2d 859 (July 2, 2009). At defendant’s trial for kidnapping and terroristic threats, trial court properly granted State’s motion in limine prohibiting defendant from contending that his actions were “justified … as a last resort to correct a grave injustice done by the [victim] attorney when he represented Brower in the criminal case ten years ago. Brower alleged he was sent to prison [fn] because of the attorney's ‘gross malfeasance.’ Thus, he asserted that he was entitled to cross-examine the attorney about his prior representation, offer testimony claiming justification and his reasons for it, offer documentary evidence supporting his claims, include justification in his opening statement and closing argument, and receive jury instructions on the principles of justification.” Defendant contended that this explanation could constitute justification under OCGA § 16-3-20(6) which allows the claim to be made “[i]n all other instances which stand upon the same footing of reason and justice as those enumerated in this article,” i.e., self-defense, actions in loco parentis, actions in making a lawful arrest, etc. Held, defendant’s explanantion of his actions didn’t amount to a justification defense. “Subsection (6) is included because the legislature apparently realized ‘that justice might need wider berth than the legislature could articulate prospectively.... This allows the defense of justification in circumstances unparticularized by the legislature but instead left to the jury, with the limitation that it be of the same quality as the enumerated instances. That is, the instance must stand on “the same footing of reason and justice” as those