An unpublished opinion of the North Carolina Court of Appeals does not constitute 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