The opinion
An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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].”
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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
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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,
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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.”
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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.”
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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
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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
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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.
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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.
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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
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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
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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).