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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.


NO. COA03-1485

Filed: 4 January 2005

1.    Criminal Law_defenses_necessity_driving while impaired

    An instruction on the defense of necessity should have been given in a DWI trial. The defense remains available even though DWI is a strict liability offense, and a trial judge is not relieved of the duty to give a correct instruction, there being evidence to support it, merely because the request was not altogether correct. There was substantial evidence of the defense in that defendant said he jumped behind the wheel of the moving truck and steered it to prevent collisions with another vehicle and a house and injuries to others. Credibility is for the jury.

2.    Evidence_prior crimes or bad acts_opportunity to stipulate_use despite stipulation

    In an action reversed on other grounds, the trial court erred by introducing an exhibit listing defendant's prior convictions before arraigning him on an habitual DWI charge and giving him an opportunity to stipulate to the prior convictions. Introducing the prior convictions on the charge of driving with a revoked license was also error; the State offered no justification for admission of the prior convictions in addition to license suspensions (to which defendant had stipulated).

    Appeal by defendant from judgments entered 4 June 2003 by Judge Zoro J. Guice, Jr. in Yancey County Superior Court. Heard in the Court of Appeals 17 June 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Hal F. Askins and Assistant Attorney General Patricia A. Duffy, for the State.

    L. Jayne Stowers for defendant-appellant.

    GEER, Judge.

    Defendant Milas Kennedy Hudgins appeals from his conviction of habitual driving while impaired and driving while license revoked. Because the evidence at trial supported an instruction on the defense of necessity, we hold that the trial court erred in failing to give such an instruction. We accordingly reverse defendant's convictions and remand for a new trial.

    The State's evidence tended to show the following. In the early evening hours on 3 September 2002, Joe Austin and a friend were standing next to Austin's house when they heard "something coming off the hill real fast" and saw a white Toyota pickup truck barreling down a steep hill behind Austin's house. The Toyota hit an old truck cab that Austin had parked on the hill and another vehicle parked in front of the house and came to rest in Austin's driveway. Austin ran to the truck and saw defendant lying on top of Benny Maney on the floorboard with defendant on the driver's side and Maney on the passenger side. Austin testified that the truck was still running, and his friend reached in and turned it off. Austin ran to his house and told his wife to call an ambulance. About fifteen minutes later, before the ambulance arrived, defendant got out of the truck and started walking toward his house.
    When Trooper Rocky Dietz of the North Carolina Highway Patrol arrived, Austin told him that defendant had left to walk to his house. Dietz went to defendant's house, where defendant answered the door. Dietz noticed that defendant had a strong odor of alcohol coming from his person. Dietz asked defendant if he had been in a motor vehicle accident, and defendant replied that he had not, but agreed to accompany Dietz to the accident scene. Dietz placed defendant in his patrol car and administered Miranda warnings.
At the accident scene, Austin identified defendant as the person he had seen in the driver's seat of the truck, and defendantapologized to Austin for what had happened. Dietz placed defendant under arrest and transported him to the Yancey County Sheriff's Department, where he informed defendant of his Intoxilyzer rights and administered an Intoxilyzer test. The test indicated that defendant had a breath alcohol concentration of .26.
    Toward the end of the State's case-in-chief, the trial court admitted into evidence State's Exhibit 6, consisting of defendant's record of convictions for violations of motor vehicle laws, a notice of an alcohol-related suspension of defendant's North Carolina driver's license, and defendant's DMV driver's record. Following admission of this evidence, defendant was arraigned outside the presence of the jury on the charge of habitual driving while impaired. Defendant then admitted having three prior convictions involving impaired driving within the past seven years and confirmed that he had signed a stipulation that his license was revoked on the date of the accident. The signed stipulation was admitted into evidence as State's Exhibit 7. At that point, the State rested.
    Defendant offered evidence that he began drinking at approximately 1:00 p.m. on 3 September 2002 and drank six or seven beers over the course of the afternoon. His friend Benny Maney picked him up in a white Toyota pickup truck to take him to Maney's house for supper. Denise Sturgill, the fiancée of defendant's brother, testified that she saw defendant get into the passenger side of Maney's truck. According to defendant, he was still riding as a passenger when the two men stopped on the side of the road to examine a dead tree and decide how best to cut it down for wood. Maney's truck was parked on the unpaved shoulder of the road, facing traffic. Defendant looked back and saw that the truck was rolling. He ran to the truck, jumped in the passenger door, slid over to the driver's side, and unsuccessfully tried to stop the truck by pumping the brakes. Maney followed through the passenger side and pulled the emergency brake, but the truck just rolled faster. Defendant testified that the truck was traveling on the wrong side of the road with defendant attempting to steer although the truck's power steering was not working. As they approached a sharp curve, defendant saw an oncoming car and steered the truck across the road to the opposite bank. According to defendant, the truck went over an embankment, then hit Austin's truck cab and a parked car and headed straight towards Austin's house. Defendant testified that he "tried to do the best [he] could to keep from hitting that house below [them]." The truck came to rest in Austin's driveway. Defendant testified that had he not jumped in the truck and ultimately steered it down the driveway, it would "have went right through [the] house."
    Defendant "busted [his] head over the windshield coming down through there" and "was kind of addled." After the ambulance came and took Maney to the hospital, defendant got out and waited a time for the state trooper to come, then returned to his house. Trooper Dietz arrived about ten minutes later.
    The jury convicted defendant of driving while impaired ("DWI") and driving while his license was revoked ("DWLR"), but found him not guilty of displaying a fictitious license plate. He was sentenced to 120 days imprisonment on the DWLR conviction and 19 to23 months for a habitual DWI conviction based on his stipulation to the prior DWIs. From his convictions and sentences, defendant appealed to this Court.
    [1] At trial, defendant requested the following jury instruction on the defense of necessity:
        I instruct you that North Carolina recognizes the defense of "necessity." A person is excused from criminal liability if he acts under a duress of circumstances to prevent some serious event from happening, and if he has no other acceptable choice. The law ought to promote the achievement of higher values at the expense of lesser values and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law. If you find that [defendant] had no other acceptable way in which to prevent possible injury to occupants and property damage and only drove to steer the truck away from houses, the defense of necessity requires you to find him not guilty.

Defendant contends that it was reversible error for the trial court to refuse to give his requested instruction on the defense of necessity.
    "A trial court must give a requested instruction if it is a correct statement of the law and is supported by the evidence." State v. Haywood, 144 N.C. App. 223, 234, 550 S.E.2d 38, 45, appeal dismissed and disc. review denied, 354 N.C. 72, 553 S.E.2d 206 (2001). Even in the absence of a request, "[f]ailure to instruct upon a substantive or 'material' feature of the evidence and the law applicable thereto will result in reversible error . . . ." State v. Ward, 300 N.C. 150, 155, 266 S.E.2d 581, 585 (1980). Any defense raised by the evidence is deemed a substantial feature of the case and requires an instruction. State v. Smarr, 146 N.C. App44, 54, 551 S.E.2d 881, 888 (2001), disc. review denied, 355 N.C. 291, 561 S.E.2d 500 (2002).
    For a jury instruction to be required on a particular defense, there must be substantial evidence of each element of the defense when "the evidence [is] viewed in the light most favorable to the defendant . . . ." State v. Ferguson, 140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000), disc. review denied, 353 N.C. 386, 547 S.E.2d 25 (2001). "Substantial evidence" is evidence that a reasonable person would find sufficient to support a conclusion. State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Whether the evidence presented constitutes "substantial evidence" is a question of law. State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982).
    A.    Availability of Necessity Defense in DWI Prosecution