IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-443

Filed 19 March 2024

Onslow County, No. 21 CRS 54283

STATE OF NORTH CAROLINA

v.

NATHAN JOSEPH TEMPLETON

Appeal by Defendant from Judgment entered 15 September 2022 by Judge G. 

Frank Jones in Onslow County Superior Court. Heard in the Court of Appeals 7 

February 2024.

Attorney General Joshua H. Stein, by Assistant Attorney General Jodi L. 

Regina, for the State.

Castle, Peterson & Naylor, P.C., by Paul Y.K. Castle, for Defendant-Appellant.

HAMPSON, Judge.

Factual and Procedural Background

Nathan Joseph Templeton (Defendant) appeals from a Judgment entered 

pursuant to jury verdicts finding him guilty of felony Fleeing to Elude Arrest with a 

Motor Vehicle and Speeding in Excess of Eighty Miles Per Hour. The Record before 

us, including evidence presented at trial, tends to show the following:

On 5 September 2021 at approximately 3:43 a.m., Sergeant Keith Whaley with 

the Onslow County Sheriff's Office saw a motorcycle travelling at a “high rate of 
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speed” while parked in an unmarked patrol car off Highway 258. Using a radar, 

Sergeant Whaley clocked Defendant’s speed at 114 miles per hour. Sergeant Whaley

activated his blue lights and siren and began to pursue Defendant. 

Defendant made several turns before making a U-turn in a yard and passing 

in front of Sergeant Whaley’s car. Soon thereafter, Defendant nearly hit a marked 

patrol vehicle driven by Deputy Kyle O’Connor parked at the entrance to the 

subdivision Defendant was exiting. This marked patrol car had its lights and sirens 

activated. At trial, Defendant testified he immediately saw the “Sheriff” marking on 

the patrol vehicle. Defendant then led both Sergeant Whaley and Deputy O’Connor

on a high-speed chase that lasted approximately thirty minutes. While attempting 

to make a turn, Defendant laid down his motorcycle, allowing Sergeant Whaley to 

catch him. Defendant continued his efforts to stand the motorcycle back up until he 

was finally held at gunpoint and forced to lay the bike back down. Defendant was 

subsequently arrested.

On 1 March 2022, Defendant was indicted for one count of felony Fleeing to 

Elude Arrest with a Motor Vehicle, one count of Speeding in Excess of Eighty Miles 

Per Hour, one count of Reckless Driving to Endanger, and one count of Carrying a 

Concealed Weapon Without a Valid Permit. The trial court determined it did not 

have jurisdiction with respect to the Concealed Weapon charge, and the charge was 

consequently dismissed.

Defendant’s case came for trial on 13 September 2022. At the close of the 
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State’s evidence, Defendant moved to dismiss all charges for insufficient evidence. 

The trial court denied the motion.

Defendant then testified as to his account of the incident. Defendant claimed 

earlier in the evening on the night of the incident at issue, members of a motorcycle 

gang threatened Defendant while he was out riding. During the charge conference, 

Defendant requested the jury be instructed on the defense of necessity. The trial 

court stated, having viewed the evidence “[i]n the light most favorable to the 

defendant . . . in the exercise of discretion, the Court finds that the defendant failed . 

. . to demonstrate no other acceptable choices were available.” Accordingly, the trial 

court declined to instruct the jury on the defense of necessity.

On 15 September 2022, the jury returned verdicts finding Defendant guilty of 

felony Fleeing to Elude Arrest with a Motor Vehicle and Speeding in Excess of Eighty 

Miles Per Hour, and found Defendant not guilty of Reckless Driving to Endanger. 

The trial court consolidated the charges and sentenced Defendant to four to fourteen 

months of imprisonment, then suspended execution of the sentence and placed 

Defendant on supervised probation for twelve months. Defendant timely filed Notice 

of Appeal on 23 September 2022.

Issue

The sole issue on appeal is whether the trial court erred by denying 

Defendant’s request to instruct the jury on the defense of necessity.

Analysis
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“It is the duty of the trial court to instruct the jury on all substantial features 

of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 

549 (1988) (citation omitted). “When determining whether the evidence is sufficient 

to entitle a defendant to jury instructions on a defense or mitigating factor, courts 

must consider the evidence in the light most favorable to [the] defendant.” State v. 

Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988) (citations omitted). We review 

challenges to the trial court’s decisions regarding jury instructions de novo. State v. 

Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). “However, an error in 

jury instructions is prejudicial and requires a new trial only if ‘there is a reasonable 

possibility that, had the error in question not been committed, a different result 

would have been reached at the trial out of which the appeal arises.’ ” State v. 

Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009) (quoting N.C. Gen. 

Stat. § 15A-1443(a) (2007)).

The burden of “raising and proving affirmative defenses” is on the defendant 

in a criminal trial. State v. Hageman, 307 N.C. 1, 27, 296 S.E.2d 433, 448 (1982). 

Where there is insufficient evidence to support each element of a defense, “the trial 

judge need not give a requested instruction on that point.” State v. Partin, 48 N.C. 

App. 274, 285, 269 S.E.2d 250, 257 (1980). 

To establish a defense of necessity, a defendant must prove: (1) defendant’s 

action was reasonable; (2) defendant’s action was taken to protect life, limb, or health 

of a person; and (3) no other acceptable choices were available to the defendant. State 
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v. Hudgins, 167 N.C. App. 705, 710-11, 606 S.E.2d 443, 447 (2005). Defendant did 

not establish his actions were reasonable nor that there were no other acceptable 

choices available to him.

First, Defendant had ample time and opportunity to realize the vehicles 

pursuing him were law enforcement. The pursuit began only after DefendantAppellant sped past Sergeant Whaley’s parked patrol car at over 100 miles per hour, 

which then activated both lights and sirens. The chase took approximately thirty 

minutes. Although Defendant claimed at trial his fear stemmed from threats made 

to him by a motorcycle gang, a reasonable person would have realized he was being 

pursued by cars, not motorcycles. 

Defendant analogizes this case to State v. Whitmore, an unpublished opinion 

of this Court. 264 N.C. App. 136, 823 S.E.2d 167 (2019). Although unpublished 

opinions are not controlling legal authority, N.C.R. App. P. Rule 30(e)(3) (2023), this 

case is instructive. In Whitmore, we held the trial court did not err by failing to 

instruct the jury on the defense of necessity because there was not substantial 

evidence of each element of the defense. Id. at *5. There, the defendant fled in a 

vehicle after being shot in an altercation at a barber shop, although no one was 

pursuing him. Id. at *1. One to two miles from the barber shop, the defendant ran 

two red lights while travelling at twice the speed limit and struck another vehicle, 

killing the driver. Id. This Court concluded the defense of necessity did not apply 

because the defendant had “ample opportunity to realize he was not being pursued 
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in the one or two miles he traveled” before the collision, therefore there was not 

evidence presented there were no acceptable alternatives available to the defendant. 

Id. at *5. 

Here, although Defendant was, in fact, being followed, he had ample 

opportunity to realize the vehicles pursuing him were law enforcement. Unlike the 

defendant in Whitmore, whose flight was at most two miles, Defendant’s chase took 

thirty minutes—more than enough time for a reasonable person to realize the 

vehicles in pursuit were law enforcement. Moreover, the pursuit began only after 

Defendant sped past a parked car which then activated lights and sirens. 

Additionally, while the defendant in Whitmore had been shot, Defendant in this case 

had at most received vague threats from a motorcycle gang, making his reasons for 

fleeing from patrol cars less compelling. 

This case is also distinguishable from State v. Miller, in which this Court 

concluded the trial court erred by not instructing the jury on the defense of necessity. 

258 N.C. App. 325, 344, 812 S.E.2d 692, 704-05 (2018). In Miller, the defendant was 

convicted of driving while impaired after fleeing from a bar where a patron 

threatened him and his wife with a gun, driving a golf cart on a highway. Id. at 326, 

812 S.E.2d at 694. In Miller, witnesses testified specifically as to why alternative 

routes were not an option and the defense presented evidence that an alternative 

driver was likely also intoxicated at the time. Id. at 342-43, 812 S.E.2d at 703-04. 

The defendant also presented evidence that his actions were reasonable based on real, 
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present threats made with a deadly weapon. Id. at 339-40, 812 S.E.2d at 702-03. 

Here, Defendant has presented no such evidence on the lack of acceptable 

alternatives or the reasonableness of his actions. Again, Defendant passed a marked 

police car with lights and sirens activated during the chase, and the chase continued 

for a significant amount of time thereafter. Unlike the threat described in Miller, 

Defendant in this case did not present evidence to support the reasonableness of his 

belief he was being chased by a motorcycle gang. Defendant did not explain why he 

believed the patrol cars’ lights and sirens belonged to motorcycles, nor why he failed 

to notice the pursuing vehicles had two headlights each rather than one, as is typical 

of motorcycles. Knowing the second car was a law enforcement vehicle marked 

“Sheriff,” Defendant clearly had an alternative to fleeing. Thus, Defendant did not 

establish his actions were reasonable nor that he had no acceptable alternative 

available. Therefore, the defense of necessity did not apply. Consequently, the trial 

court did not err by not instructing the jury on the defense of necessity.

Conclusion

Accordingly, for the foregoing reasons, we conclude there was no error at 

Defendant’s trial and affirm the Judgment.

NO ERROR.

Judges MURPHY and ARROWOOD concur.