One night nearly two years ago, Nesta Gerberding returned to her South Durham home after an evening out with her roommates: her boyfriend, Jack, and brother, Kevin. Also living in the house was an 18-month-old white pit bull named Tank.

The group tossed some Burger King bags onto the kitchen table and walked into the living room. Tank grabbed one of the hamburgers and started eating it. Gerberding entered the kitchen and put her hand in Tank’s mouth to retrieve it. Tank bit her, and she screamed. “He shredded my ring finger,” Gerberding, 32, recalled in an interview.

Convicted last year on felony animal cruelty charges, Gerberding took her case to the North Carolina Court of Appeals, which will consider it this week. 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.

As Gerberding attended to her bleeding finger, Tank continued growling and baring his teeth, she says. Jack took the dog outside and snapped him into a lead. A minute or two later, Gerberding walked into the yard, clutching a large kitchen knife. While Kevin pinned Tank to the ground, Gerberding stabbed the dog in the neck. When Tank did not die, she stabbed him in the neck two or three more times. Tank walked about 10 paces, and collapsed.

Gerberding’s appeal is based on the technical wording of a judge’s jury instructions, but it hinges on a single question: was she justified in the stabbing? Gerberding stands by her decision. Tank, she says, had slipped his lead on several occasions and was behaving viciously. “If the situation was presented to me again, I’d do the same thing,” she said. “Killing it was the only option I had.”

The morning after the stabbing, Gerberding was treated at a hospital for a broken finger, requiring six stitches. The men buried Tank on Gerberding’s step-father’s property. A Durham Animal Services officer, who offered Gerberding a rabies information packet, asked about Tank. Kevin escorted the officer to Tank’s burial site and exhumed him.

Four weeks later, Gerberding and Kevin were indicted. Last September, when Gerberding went to trial, she testified that she was scared for herself, Kevin, Jack, her neighbors, and all of the other animals in the neighborhood. Following is an excerpt from her testimony:

“I told my brother, I said, ‘I’m going to kill this dog.’ And he helped me; he pinned the dog down, one knee on his chest, one knee on his head, and I had a knife in my hand, and Ilike Detective Pinner described, over and over, I stabbed and then sliced. And in my world, when a dog bites, you kill it; that’s what happens. And then we all kind of go back inside [and] chat with each other.”

Gerberding was found guilty of felonious cruelty to animals and conspiracy to commit felonious cruelty to animals. She was sentenced to a term of five to 15 months, suspended for 18 months’ probation. Kevin later accepted a guilty plea deal.

According to Raleigh-based animal attorney Calley Gerber, who is not involved in the case, Gerberding had no justification in the killing. “I’ve never heard of anybody stabbing a dog because they thought he was dangerous,” said Gerber. “If she can’t control the dog, she has the duty to have him humanely euthanized. That doesn’t mean she can cruelly murder him.”

Gerberding grew up in West Virginia, where she watched her father, a butcher, slaughter cows. As a girl, she hunted raccoons, slit the throats of cows and deer, and killed hogs for barbecues. “For me to slit an animal’s throat,” she said, “it’s kind of second nature.”

Gerberding had lived with Tank, whom she describes as 75 pounds, for about six weeks before she killed him. Tank’s owner was technically Kevin’s ex-girlfriend, who had recently moved and left the dog behind. The dog wasn’t known to be particularly aggressive with others, though Gerberding claims Tank was unruly because of abuse by Kevin’s ex-girlfriend. Once, a neighbor called the police to complain when Tank slipped his lead and cornered her. On another occasion, when Tank was locked in the bathroom, he destroyed the door and wall.

Gerberding claims the girlfriend should be held accountable. In North Carolina it’s a Class 3 misdemeanor to leave a dangerous dog unattended in an unsecured area, and the owner of a dangerous dog whose unprovoked attack leads to medical bills in excess of $100 is guilty of a Class 1 misdemeanorplus possible civil liabilities.

“[The girlfriend] is the one who should have been on trial,” said Gerberding. “I should have sued her.”

Gerberding contends it wasn’t the bite that caused her to kill the dog, but rather his continuous growling afterward. “When a pit bull snaps and makes a decision to maul somebody, there’s no stopping it, short of killing it. I had no way of containing that dog safely. In my head 15 minutes was too long to wait.”

According to Stephanie Bell, a Seattle-based cruelty casework director for the People for the Ethical Treatment of Animals, felony animal cruelty charges are rising across the country following the recent passage of stiffer laws. “We’re seeing a direct link between cruelty to animals and human violence,” she said.

But Gerberding insists she killed Tank in self-defense. She wants a new trial.

“The judge instructed the jury that self-defense didn’t matter in this case,” she said. “That was out of bounds. Dog bit. Dog got killed. That sounds like self-defense. The judge must have been a fan of PETA.”

During its deliberation, the jury asked Superior Court Judge Paul Ridgeway about the definition of “without justification or excuse”an element of animal cruelty. Ridgeway offered examples of justification and excuse for crimes that, he conceded, were “not applicable to the evidence in this case.” Gerberding’s lawyer objected, arguing that Ridgeway seemed to suggest that no legitimate justifications applied to Gerberding’s case. The objection serves as Gerberding’s first point on appeal.

Gerberding’s second argument centers on malice, which separates felony and misdemeanor animal cruelty in North Carolina. During deliberation, the jury asked Ridgeway a second question. The judge had listed four elements of malice: hatred, ill will, spite and intent. Were all four elements necessary for a felony conviction? Ridgeway responded that any one of those elements, standing alone, could satisfy the definition of malice.

Gerberding argues that Ridgeway erroneously equated intent with malice, suggesting to the jury that any conviction must be felonious. “Just because I killed the animal doesn’t mean I did it with ill will,” she said.

Gerberding has previously owned several dogs, including Dobermans, Chows, an Australian shepherd and an English springer spaniel. All of them, she says, were well trained. “They painted this picture of me as this awful person when I’d be the first to stand up and defend an animal,” she said. “I’m an animal lover.”

Animal cruelty felonies, 2013

Durham County
11 charges, 2 convictions

Wake County
6 charges, 1 conviction

Orange County
2 charges, 0 convictions

Chatham County
0 charges, 0 convictions

Statewide
191 charges, 36 convictions

Tallies measure individual defendants and do not account for multiple charges. Annual charges and convictions do not
necessarily reference the same cases.

Source: Administrative Office of the Courts

This article appeared in print with the headline “Spite or self-defense?”