in the Court of Appeals 2 October 2017.
by Defendant from judgment entered 8 April 2016 by Judge
Michael R. Morgan in Superior Court, Wake County, No. 14 CRS
Attorney General Joshua H. Stein, by Assistant Attorney
General David D. Lennon, for the State.
Chetson Hiltzheimer, PLLC, by Damon Chetson, for Defendant.
Brief Factual Background
William Miller ("Defendant") and his wife, Heather
Miller ("Heather") drove their golf cart (the
"golf cart") from their house (the
"house") to a nearby bar called Bones' Place
("Bones") on the evening of 1 March 2014 to hear a
band. According to the evidence taken in the light most
favorable to Defendant, there was a path between the house
and Bones that permitted the drive to be conducted without
travelling on any public roadways. At approximately midnight,
Heather decided she wanted to leave Bones. Defendant went
outside while Heather went to the restroom, and an
altercation occurred between Defendant and some men in the
Bones parking lot (the "parking lot"). When Heather
walked out of Bones and onto the parking lot, she witnessed
the altercation. The situation escalated and one of the men
drew a handgun and threatened Defendant, causing Defendant
and Heather to get into the golf cart, and Defendant then
drove away from the parking lot.
County Sheriff's Deputy Joshua Legan ("Deputy
Legan") was on patrol shortly after midnight on 2 March
2014, when he observed the golf cart heading toward him.
Deputy Legan testified that the golf cart was being driven
without lights and was straddling the center line on Old U.S.
Highway 1. Deputy Legan immediately turned around and drove
to intercept the golf cart. By the time Deputy Legan
activated his lights and caught up to the golf cart, it had
turned off of the highway onto a dirt path. Deputy Legan
noticed the odor of alcohol emanating from Defendant and that
Defendant's speech was slurred and his eyes were
"red and bloodshot[.]" Additional deputies arrived
at the scene. Defendant was administered tests for impairment
and, based upon all the factors Deputy Legan observed,
Defendant was arrested for driving while impaired and driving
left of the center line.
was found guilty of driving while impaired and responsible
for driving left of center in district court on 11 June 2015,
and he appealed to superior court. Defendant was tried before
a jury at the 6 April 2016 session of Wake County Superior
Court, and was again found guilty of driving while impaired
and responsible for driving left of center. Defendant
appeals. Additional relevant facts will be discussed in the
analysis portion of this opinion.
Defendant's sole argument, he contends the trial court
erred by refusing to instruct the jury on the defense of
necessity when the evidence presented at trial supported
giving the instruction. We agree.
affirmative defense of necessity is available to defendants
charged with driving while under the influence
("DWI"). State v. Hudgins, 167 N.C.App.
705, 710606 S.E.2d 443, 447 (2005). As an affirmative
defense, "the burden rests upon the defendant to
establish this defense, unless it arises out of the
State's own evidence, to the satisfaction of the
jury." State v. Caddell, 287 N.C. 266, 290, 215
S.E.2d 348, 363 (1975). It is well established:
A trial court must give a requested instruction if it is a
correct statement of the law and supported by the evidence.
"Any defense raised by the evidence is deemed a
substantial feature of the case and requires an
instruction." For a particular defense to result in a
required instruction, there must be substantial evidence of
each element of the defense when viewing the evidence in
a light most favorable to the defendant.
"Substantial evidence is 'such relevant evidence as
a reasonable mind might accept as adequate to support a
State v. Brown, 182 N.C.App. 115, 117-18, 646 S.E.2d
775, 777 (2007) (citations omitted) (emphasis added).
However, "'a trial court is not obligated to give a
defendant's exact instruction so long as the instruction
actually given delivers the substance of the request to the
jury.'" State v. Holloman, 369 N.C. 615,
625, 799 S.E.2d 824, 831 (2017) (citations omitted). Further,
a trial judge's jury charge shall "give a clear
instruction which applies the law to the evidence in such
manner as to assist the jury in understanding the case and in
reaching a correct verdict." For that reason, "the
judge has the duty to instruct the jury on the law arising
from all the evidence presented." In instructing the
jury with respect to a defense to a criminal charge,
"the facts must be interpreted in the light most
favorable to the defendant."
Id. at 625, 799 S.E.2d at 831 (citations omitted)
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 710-11, 606 S.E.2d at 447.
The rationale behind the defense is based upon the public
policy that "the law ought to promote the achievement of
higher values at the expense of lesser values, and [that]
sometimes the greater good for society will be accomplished
by violating the literal language of the criminal law."
"[I]f the harm which will result from compliance with
the law is greater than that which will result from violation
of it, [a person] is justified in violating it."
State v. Thomas, 103 N.C.App. 264, 265, 405 S.E.2d
214, 215 (1991) (citations omitted) (alterations in
question before this Court, which we review de novo,
is whether, when viewed in the light most favorable to
Defendant, substantial evidence was presented at trial that
Defendant took "(1) reasonable action, (2) taken to
protect life, limb, or health of a person, and (3) no other
acceptable choices [were] available" to Defendant.
Hudgins, 167 N.C. App.at 710-11, 606 S.E.2d at 447.
Therefore, if the evidence presented at trial, viewed in the
light most favorable to Defendant and ignoring all
contradictory evidence, was sufficient to permit the jury to
reasonably infer the existence of these three
elements, the trial court was required to give the
instruction on necessity. It would then be the sole province
of the jury to determine whether, based upon those facts,
Defendant had met his burden of proving necessity to the
satisfaction of the jury:
[Our appellate] cases enunciate and reiterate the rule -
established in our law for over one hundred years, - that
when the burden rests upon an accused to establish an
affirmative defense . . . the quantum of proof is to
the satisfaction of the jury - not by the greater weight of
the evidence nor beyond a reasonable doubt - but simply
to the satisfaction of the jury. Even proof by the
greater weight of the evidence - a bare preponderance of the
proof - may be sufficient to satisfy the jury, and the jury
alone determines by what evidence it is satisfied.
State v. Freeman, 275 N.C. 662, 666, 170 S.E.2d 461,
464 (1969) (citations omitted).
address a potential issue that arises from the present
appeal. During the charge conference, Defendant requested
that the trial court give an instruction on necessity and
duress, but specifically requested N.C. P.I. Crim. 310.10,
the instruction for "Compulsion, Duress, or
Coercion." In North Carolina, there is no pattern jury
instruction that expressly addresses the defense of
necessity. At the charge conference, both Defendant and the
State discussed a recent unpublished opinion of this Court,
State v. Badson, 242 N.C.App. 384, 776 S.E.2d 364,
2015 WL 4430202 (2015) (unpublished). In Badson, this
Court stated: "Although the defenses of duress and
necessity were 'historically distinguished' under
common law, '[m]odern cases have tended to blur the
distinction[.]' State v. Monroe, 233 N.C.App.
563, 565, 756 S.E.2d 376, 378 (2014). Thus, for purposes of
this opinion, the two defenses are discussed
interchangeably." Badson, 242 N.C.App. 384, 776
S.E.2d 364, 2015 WL 4430202 at *3. We note that the language
quoted from Monroe is language discussing federal
law, not the law of North Carolina. Monroe, 233 N.C.
App.at 565, 756 S.E.2d at 378 (2014). Further, in
Badson this Court quotes Hudgins for the
proposition that the "defense of necessity is available
in a DWI prosecution[, ]" Badson, 2015 WL
4430202 at *4 (citation omitted), and sets forth the elements
of necessity as found in Hudgins: "(1)
reasonable action, (2) taken to protect life, limb, or health
of a person, and (3) no other acceptable choices
available." Id. (citation omitted).
elements of duress have been stated as follows:
"In order to successfully invoke the duress defense, a
defendant would have to show that his 'actions were
caused by a reasonable fear that he would suffer immediate
death or serious bodily injury if he did not so
act.'" Furthermore, a defense of duress "cannot
be invoked as an excuse by one who had a reasonable
opportunity to avoid doing the act without undue exposure to
death or serious bodily harm."
State v. Smarr, 146 N.C.App. 44, 54-55, 551 S.E.2d
881, 888 (2001) (citations omitted). The pattern jury
instruction for compulsion, duress, or coercion states,
partially tracking the language of Smarr and other
opinions involving duress:
310.10 COMPULSION, DURESS, OR COERCION.
There is evidence in this case tending to show that the
defendant acted only because of [compulsion] [duress]
[coercion]. The burden of proving [compulsion] [duress]
[coercion] is upon the defendant. It need not be proved
beyond a reasonable doubt, but only to your satisfaction. The
defendant would not be guilty of this crime if his
actions were caused by a reasonable fear that he (or another)
would suffer immediate death or serious bodily injury if he
did not commit the crime. His assertion of [compulsion]
[duress] [coercion] is a denial that he committed any crime.
The burden remains on the State to prove the defendant's
guilt beyond a reasonable doubt.
N.C. P.I. Crim. 310.10 (emphasis added).
no binding precedent supporting the proposition that duress
and necessity have ceased to be distinct defenses in North
Carolina. In recognizing the availability of the
necessity defense in trials for DWI, this Court in
Hudgins held that the defense of necessity was
available based in part on the fact that other "common
law defenses are available in DWI prosecutions."
Hudgins, 167 N.C.App. at 709, 606 S.E.2d at 447.
Countering the State's argument that the necessity
defense should not be allowed, this Court held:
The State's argument cannot be reconciled with decisions
of this Court indicating that common law defenses are
available in DWI prosecutions. This Court recently held that
"[i]n appropriate factual circumstances, the defense of
entrapment is available in a DWI trial." This Court has
also implicitly acknowledged that the defense of
duress would be appropriate in a DWI trial. See
State v. Cooke, 94 N.C.App. 386, 387, 380 S.E.2d 382,
Moreover, courts in other jurisdictions have specifically
held that the defense of necessity is available in a DWI
prosecution. We likewise hold that the defense of necessity
is available in a DWI prosecution.
Id. at 709-10, 606 S.E.2d at 447 (citations omitted)
(emphasis added). If necessity and duress have ceased to be
distinct defenses in North Carolina, this Court in
Hudgins could have simply cited Cooke as
having implicitly established the viability of the merged
necessity/duress defense instead of relying on
Cooke's implicit acceptance of the duress
defense, along with this Court's explicit recognition of
the defense of entrapment, in order to hold that the defense
of necessity is also available to defendants on trial for
DWI. In addition, reference to the acceptance of necessity as
a defense to DWI in other jurisdictions would have been
superfluous. We hold the defense of necessity is recognized
as a defense separate and distinct from the defense of duress
(compulsion or coercion).
present case, both parties and the trial court, while
discussing the elements of the requested instruction at the
charge conference, solely discussed the elements of necessity
as set forth in Badson - and thus Hudgins.
However, the elements in Hudgins do not track the
language in N.C. P.I. Crim. 310.10, the pattern jury
instruction for duress. The State argued the required
elements as follows: "That it first must be a reasonable
act taken to . . . protect the life, limb, or health of a
person..... And to the third action, that [there] must be no
other acceptable choices available." The State then
suggested that this Court's opinion in Cooke
recognized a fourth element: "That [D]efendant
[continued to face] threatening conduct of any kind at the
time the officer saw him while driving while
the fact that the elements discussed by the parties at the
hearing were those for necessity, the trial court, clearly
relying on language from N.C. P.I. Crim. 310.10, denied
Defendant's request to instruct the jury on the defense
of necessity based upon its determination that no evidence
had been presented demonstrating that Defendant was in actual
"fear" at the time he drove the golf cart on the
[THE COURT:] While the issue appears on it sure to be quite
detailed and involved really, a look at the
instruction makes it fairly simple in terms of the
resolution here. The instruction 310.10 reads in pertinent
part to the extent that it influences the decision here,
. . . .
 [D]efendant would not be guilty of this crime if his
actions were caused by a reasonable fear that he or
another would suffer immediate death or serious bodily injury
if he did not commit the crime. Unquote.
Of course there is reasonable dispute concerning the length
of time that was involved here in terms of when that fear
still is recognized by the law to be present and existent in
terms of the length of time or the length of participation as
to where there was a fear that began as opposed to the point
where it was still ...