An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1236
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA


      v.                                      New Hanover County
                                              No. 12 CRS 52513
TRACY LYNN KAPEC




      Appeal by defendant from judgment entered 23 July 2013 by

Judge W. Allen Cobb, Jr., in New Hanover County Superior Court.

Heard in the Court of Appeals 4 March 2014.


      Attorney General Roy Cooper by Special                    Deputy     Attorney
      General Neil Dalton for the State.

      Richard J. Costanza for defendant-appellant.


      STEELMAN, Judge.

      Where defendant presented evidence of all the elements of

the   defense    of   necessity,     the    trial   court    erred    in   denying

defendant’s request for a jury instruction concerning necessity

as a defense to the charge of impaired driving.

                  I. Factual and Procedural Background.
                                         -2-
    On 15 March 2012 Carolina Beach Police Officer James Mobley

was patrolling the northern part of Carolina Beach. At around

2:30 a.m., Officer Mobley was dispatched to 1216 Canal Drive in

response to a call from Jesse Cayson, reporting that Tracy Lynn

Kapec   (defendant)      was    impaired       and   had    left    the     residence

operating a motor vehicle. Officer Mobley drove in the direction

indicated by Mr. Cayson.

    A short time later, Officer Mobley encountered defendant

stopped at an intersection about three blocks from Mr. Cayson’s

home.   He   activated    his    blue    lights.     When    defendant       did    not

respond, he activated his siren. Defendant pulled into a parking

lot about two and a half blocks from where Officer Mobley first

activated his blue lights. After defendant stopped, she started

to exit her vehicle. Officer Mobley saw that defendant’s gait

was unsteady and directed her to return to her vehicle. Officer

Mobley “noticed she had red glassy eyes, a strong alcoholic

beverage     [odor]    coming    from    her    breath      and    mildly    slurred

speech.” Defendant was unable to produce her driver’s license or

registration.    She     was    crying    and    appeared      upset,     and      told

Officer Mobley “that she had had a few drinks but did not want

to be driving” and that “the reason she was driving is because

she wanted to get away from [Mr. Cayson].”
                                          -3-
      Officer Mobley took defendant into custody. The chemical

analysis performed at the police station showed that defendant

had   a   .17    blood    alcohol      level.    Defendant      was    arrested       for

driving while impaired and driving without a license.                            On 18

February 2013 she was tried in district court, where she was

found     not    responsible     for    the     infraction     of     not    having   an

operator’s       license,    but    was    convicted     of    impaired        driving.

Defendant appealed the conviction to Superior Court, and was

tried at the 22 July 2013 session of Criminal Superior Court for

New Hanover County. At trial, the State presented testimony from

Officer     Mobley.       Defendant       offered     testimony        from     several

witnesses, which is summarized below.

      Officer Steven Baize had previously responded to domestic

violence calls involving Mr.               Cayson, whom he described as a

large man. At about 2:45 a.m. on 24 February 2012, about three

weeks before defendant was arrested, Officer Baize responded to

a call regarding an assault on defendant by Mr. Cayson. When he

arrived on Canal Street, defendant was “walking down the street,

her shirt was visibly ripped and torn,” and she “was crying and

upset”     and   walking    briskly       as    if   “trying    to    get     somewhere

quick.” Defendant did not want to press charges                             and Officer

Baize observed that she was “obviously scared of [Mr. Cayson]”

“throughout       the    whole     [encounter.]”      Officer       Baize     described
                                     -4-
another incident in which defendant “was staying with a friend

off Carolina Beach Avenue” and “had her vehicle parked at her

friend’s house,” when she and the friend reported “[Mr. Cayson]

coming up, throwing a brick through the sliding glass door of

that residence and also ripping the top on her convertible that

she had at the time, and I believe he keyed her car as well and

did lots of damage to the vehicle.”

      Defendant testified that she had separated from her husband

in November 2011 and moved from Winston-Salem to Carolina Beach,

where she rented a house from a friend, Michelle Steele. She met

Mr. Cayson after she moved to Carolina Beach, and began a dating

relationship. Initially, Mr. Cayson “seemed to be a kind person,

a nice person” but after several months defendant “found out . .

. he wasn’t really who he portrayed himself to be[.]” Mr. Cayson

used cocaine and alcohol and underwent a personality change when

he was intoxicated. His behavior was “okay until he would have a

few   drinks   or   some   other   substance   and   then   he   would   just

totally turn into someone else and just get angry and violent.”

Mr. Cayson was also “very jealous.”

      On one occasion, defendant was in a parking lot when Mr.

Cayson “came rushing up and shoved [her] into the car” and she

“hit the side of the windshield[.]” Prior to this incident, Mr.

Cayson had been drinking and using cocaine. On other occasions,
                               -5-
Mr. Cayson had “thrown [defendant] out the back door of his

condo onto the deck.” On 24 February 2012 defendant and Mr.

Cayson were at his residence and Mr. Cayson became angry at

defendant. When defendant tried to gather her belongings and

leave, Mr. Cayson “took [her] by the throat with his right hand

and threw [her] down on the bed,” and then “picked [her] back up

off the bed with [her] shirt and ripped it off and threw [her]

in the floor and was kicking [her,]” after which he “threw [her]

out the back door.” Defendant called 911, and Officer Baize

responded to the call. The next day, defendant filed “a police

report,” but she was scared to press charges, because Mr. Cayson

had told her that he “was on probation for stealing a van” and

that if she caused him trouble, she “would be sorry” because “he

wasn’t going to go to jail over [her].”

    Mr. Cayson was never violent towards defendant when he was

sober, but when he drank alcohol, he became hostile and abusive.

Defendant learned “the warning signs that . . . another assault

was imminent,” in that Mr. Cayson “would start getting loud,

start yelling” and “his whole face changed, so his expressions

let [her] know that it was coming.” He was more likely to become

violent if defendant spoke with another man, “whether it be a

friend or just a stranger just trying to be friendly.”
                                       -6-
       On the night of her arrest, defendant went out with Mr.

Cayson and two of his friends. During the evening, she drank

beer and became “very intoxicated.” Later, defendant and Mr.

Cayson were at his residence, sitting outside on the steps. Mr.

Cayson became angry and defendant observed “the look on his face

and    his   demeanor    changed   and    his    voice    raised,”     which   were

warning signs of an impending assault. Defendant became “nervous

about what could happen” and told Mr. Cayson that she “wanted to

leave” but he stood in front of her on the stairs trying to

block her exit. Defendant was able to get into her vehicle and

lock the doors. As she started the vehicle, defendant called Ms.

Steele and told “her I had to go, I was going, please just pick

me up. I was going to go a little ways, just pick me up.” Ms.

Steele said to “just stop and pull over” and she would pick her

up.    Ms.   Steele    suggested   that       defendant   drive   “a     couple   of

blocks” and wait for her to arrive. When she called Ms. Steele,

defendant was “very upset and scared” and “didn’t know what to

do.” Although Mr. Cayson had not assaulted her on this occasion,

defendant was “in fear for her safety” because she had “seen it

before.”     She      “didn't   want     to    hang   around      [Mr.    Cayson’s

residence] to see what was going to happen next” and intended to

“go a couple of blocks down and have [Ms. Steele] pick [her]

up.”
                                        -7-
    Ms.     Steele    testified    that       she   and    defendant     had   been

friends for 28 years. She described Mr. Cayson as “great when

he’s not impaired,” but said that when he drank he “gets very

agitated”     and   was   likely   “to    fight      and    to    bow   up.”    When

defendant     began   dating   Mr.      Cayson,      Ms.    Steele      was    “very

concerned for her safety.” She recalled the incident in which

Mr. Cayson “pushed [defendant] into a car.” On the night that

defendant called 911 and Officer Baize brought defendant to her

house, defendant’s shirt was torn and she “had marks on her

neck” and appeared “terrified.” Defendant obtained a restraining

order   the   following     day.   On    the    night      that   defendant     was

arrested for impaired driving, she called Ms. Steele and said

that “she had been at [Mr. Cayson’s residence] and that she was

scared and he was angry.” Ms. Steele told defendant to “get far

enough away from him, pull over to the side of the road, take

the keys out of the ignition” and wait for her. Ms. Steele

believed that defendant needed to               “get out of the situation

immediately for her safety,” and that defendant’s driving a few

blocks away “was the only safe option.” Within a “matter of

minutes” defendant was stopped by officer Mobley, before Ms.

Steele had time to get dressed and get into her vehicle.

    On 23 July 2013 the jury returned a verdict of guilty of

driving while impaired. The trial court sentenced defendant to a
                                             -8-
term   of     60    days,    which    was    suspended     on    the     condition    that

defendant be placed on twelve months of unsupervised probation.

       Defendant appeals.

                                         II. Analysis

                                A. Standard of Review

       Defendant argues on appeal that the trial court erred by

denying her request for a jury instruction concerning necessity

as a defense to the charge of driving while impaired. We agree.

       “The    law     is    well    settled    that   a    judge        is   required   to

instruct on all substantial features of the case. . . . Where an

instruction is requested by a party, and where that instruction

is supported by the evidence, it is error for the trial court

not to instruct in substantial conformity with the requested

instruction.” State v. Rose, 323 N.C. 455, 458, 373 S.E.2d 426,

428 (1988) (citing State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d

649 (1982), and State v. Hairr, 244 N.C. 506, 94 S.E. 2d 472

(1956)). “[I]t is equally settled that defenses raised by the

evidence           constitute        substantial       features           requiring      an

instruction.” State v. Jones, 300 N.C. 363, 366, 266 S.E.2d 586,

587 (1980) (citing State v. Dooley, 285 N.C. 158, 203 S.E. 2d

815 (1974)).

       Necessity       has    long    been     recognized       as   a    “defense    that

confesses the act charged, and seeks to avoid the consequences
                                      -9-
by showing some excuse recognized by the law as sufficient to

relieve it of its criminal character.” State v. Rogers, 119 N.C.

793, 794, 26 S.E. 142, 142 (1896). “The violation of the letter

of the law has been excused in criminal cases generally on no

other ground except that a human being was thereby saved from

death or peril, or relieved from severe suffering.” State v.

Brown, 109 N.C. 802, 807, 13 S.E. 940, 942 (1891) (citations

omitted).

                                   B. Discussion

    In State v. Hudgins, 167 N.C. App. 705, 606 S.E.2d 443,

(2005),    the   defendant      appealed    from    convictions   of   habitual

driving while impaired and driving while license revoked. At

trial, the defendant presented evidence that he had driven in

order to bring a runaway truck under control. This Court held

“that     the    defense   of     necessity    is     available   in    a   DWI

prosecution” and that a “defendant must prove three elements to

establish the defense of necessity: (1) reasonable action, (2)

taken to protect life, limb, or health of a person, and (3) no

other acceptable choices available.” Hudgins, 167 N.C. App. at

710-711, 606 S.E.2d at 447 (citing State v. Thomas, 103 N.C.

App. 264, 265, 405 S.E.2d 214, 215 (1991)). We ruled that the

defendant was entitled to a new trial based on the trial court’s

failure to instruct concerning the defense of necessity.
                              -10-
    We reach the same result in the present case. The evidence

pertinent to the defense of necessity included the following:

         1. Officer Baize responded to a 911 call
         from defendant about three weeks before her
         arrest; on that occasion, defendant’s shirt
         was torn, and she was upset and appeared
         frightened of Mr. Cayson.

         2. Defendant testified that (a) on a number
         of prior occasions Mr. Cayson had physically
         assaulted her after drinking alcohol, (b)
         she had learned to recognize the warning
         signs of an impending attack, (c) on the
         night of her arrest she drove away from Mr.
         Cayson’s house because she was afraid for
         her safety, and (d) she called Ms. Steele
         when she got into her car and arranged for
         Ms. Steele to pick her up as soon as she had
         driven a safe distance from Mr. Cayson.

         3. Defendant was stopped by Officer Mobley
         within five minutes of leaving Mr. Cayson’s
         house, and just a few blocks from that
         location. There is no evidence that she had
         driven any great distance, or that she
         intended to do so.

         4. When Officer Mobley stopped defendant,
         she was crying and upset, and immediately
         told him that she “didn’t want to be
         driving” and was only driving to “get away
         from [Mr. Cayson].”

         5. Ms. Steele testified that defendant had
         called her on the night of her arrest, that
         Mr. Cayson had engaged in physical violence
         against defendant, and that she believed
         defendant’s only reasonable way to protect
         herself on the night she was arrested was to
         drive a few blocks away and wait for Ms.
         Steele to pick her up.
                                                 -11-
We     hold    that        the    evidence        was        sufficient       to     require    an

instruction on the defense of necessity, and that the trial

court erred by denying defendant’s request for the instruction.

In reaching this conclusion, we have considered and ultimately

rejected the State’s arguments for a contrary result.

       During       the    charge        conference,         the   trial      court    indicated

that    it     was    denying           defendant’s          request    because       the     court

believed       that,       at     the    time     defendant        drove       away    from     Mr.

Cayson’s house, she had a reasonable alternative available of

dialing       911    and    waiting        for    the    arrival        of    law    enforcement

officers.      In     making       this    determination,           the      trial     court    was

necessarily resolving issues of fact regarding the credibility

of     defendant’s          evidence,        the        degree     of        immediate      danger

presented       by    Mr.        Cayson,    and        the    likelihood        of    her     being

assaulted       while       she    waited        for    law     enforcement          officers   to

respond to her call. In                    Hudgins, we          emphasized that factual

determinations pertinent to the defense of necessity were in the

purview of the jury:

               Although the State argues that defendant’s
               testimony was “an elaborate fabrication,”
               that   argument   presents   a  question  of
               credibility   that   is  solely  within  the
               purview of the jury. “All defenses presented
               by the defendant’s evidence are substantial
               features of the case, even if that evidence
               contains discrepancies or is contradicted by
               evidence from the state. This rule reflects
               the principle in our jurisprudence that it
                                           -12-
             is the jury, not the judge, that weighs the
             evidence.” . . . Whether jumping into the
             truck to attempt to stop the vehicle was
             reasonable   under  the   circumstances  and
             whether defendant had any other acceptable
             options were questions for the jury. The
             State argues that . . . there was no need
             for defendant to get behind the wheel. It
             was, however, up to the jury to decide
             whether the situation involved a split-
             second decision in an emergency situation
             that rendered defendant’s actions reasonable
             and necessary.

Hudgins at 711, 606 S.E.2d at 447-48 (quoting State v. Norman,

324   N.C.   253,      267,     378   S.E.2d      8,   17    (1989)    (Martin,     J.,

dissenting)        (internal    citation      omitted)).       Similarly,      in   the

present case the factual issues for the jury’s determination

included     the    credibility       of    the   witnesses      and     whether    the

believable evidence established the elements of the defense of

necessity. We also conclude that it was a question of fact for

the jury whether defendant’s driving two and a half blocks after

Officer Mobley turned on his blue light constituted impaired

driving    that     was   not    excused     by    any      necessity,    or   whether

defendant was simply finding the nearest safe place to pull off

the road.

      Finally, we do not agree with the State that the result in

this case is controlled by State v. Cooke, 94 N.C. App. 386, 380

S.E.2d 382 (1989). In Cooke, the defendant was stopped by police

after “he had been driving on different public highways for
                                   -13-
about thirty minutes.” We held that although the “evidence tends

to show that defendant was justifiably in fear for his safety

when he drove away from his pedestrian pursuers,” there was no

evidence that “he was still justifiably fearful thirty minutes

later   after   his   pursuers   had   been   left   many   miles   behind.”

Cooke, 94 N.C. App. at 387, 380 S.E.2d at 382. In this case,

defendant was stopped by Officer Mobley about three blocks from

Mr. Cayson’s house and within five minutes of leaving. Cooke is

factually distinguishable and does not control the outcome of

the present case.

    We hold that the trial court erred by denying defendant’s

request that the jury be instructed on the defense of necessity,

and that defendant is entitled to a new trial.

    NEW TRIAL.

    Judges McGEE and ERVIN concur.

    Report per Rule 30(e).
