Yesterday the North Carolina Court of Appeals published a unanimous opinion
affirming a lower court's conviction of a Durham woman who stabbed her dog to death after it bit her finger.
Nesta Gerberding, who was convicted for felonious animal cruelty
and given probation, had claimed she was justified in the killing because the pit bull, Tank, was vicious, and she wanted to protect her family and the people an animals in the neighborhood.
She also contended that during her trial last year, the judge offered improper jury instructions by using non-applicable hypothetical examples of crime justifications that had nothing to do with animal cruelty, and prejudiced the jury by suggesting she acted with malice, which is the factor that separates felonious animal cruelty from misdemeanor animal cruelty.
In its opinion yesterday, the appellate court disagreed with Gerberding's first argument. Gerberding, the judges argued, citing case law, "ignores the rule of law that the trial judge is 'not required to parrot the instructions or to become a mere judicial phonograph for recording the exact and identical words of counsel.' "
On Gerberding's second point — that the judge prejudiced the jury by suggesting Gerberding acted with malice — the judges split.
During jury deliberations during Gerberding's trial, the jury asked the judge a question: were the four elements of malice—namely hatred, ill will, spite and intent—all necessary for a felony conviction? The judge responded that any one of those elements, standing alone, could satisfy the definition of malice. Gerberding argued that intent, standing alone, should not automatically denote malice. "Just because I killed the animal doesn't mean I did it with ill will," she said in an interview earlier this year.
Judges Rick Elmore and Wanda Bryant disagreed with Gerding, opining that the jury was free to convict Gerberding for felony or misdemeanor animal cruelty. But in a separate opinion, Judge Sam Ervin sided with Gerberding on this point. However, Ervin concluded that the trial judge's error didn't rise to the level to necessitate relief from Gerberding's conviction.
The case highlights a rise in animal cruelty felony charges in the state. In 2013, 191 North Carolinians were charged with felonies, more than twice the number from a decade ago.