Horse cruelty trial

Seizure Unlawful, Judge Rules

BY JOHN PATTERSON
SALISBURY POST

A judge Wednesday afternoon ruled that Rowan County Animal Control officers twice unlawfully seized malnourished horses that belonged to a Salisbury woman on trial for neglecting the animals.

District Court Judge Ted Blanton agreed with defendant Carolyn Nance's attorneys - Bob and James Davis - that Animal Control officers in December took Nance's horses without following proper procedure. Officers on two occasions - Dec. 21 and Dec. 23 - took the horses from property Nance leased on Old Mocksville Road; on neither occasion did officers have a warrant or legal authority to be on Nance's land or to seize the animals.

More importantly for Nance, it now means that a number of state's witnesses - including animal control officers and volunteers who cared for the horses after a caller complained about the animals' condition on Dec. 18 - probably won't be allowed to testify during Nance's trial. That's because evidence offered by anyone that saw or came into contact with the horses at the request of animal control will also be considered unlawful.

It was a huge procedural victory for Nance - on trial for 16 counts of cruelty to animals - and a setback for prosecutors who will likely find it more difficult to secure a conviction.

Assistant District Attorney Cynthia Barnhill asked Blanton to postpone the trial. But after James Davis argued that it couldn't be postponed indefinitely, Blanton decided to resume the trial at 9 a.m. Friday.

Wednesday's turn of events started when the Davises filed a motion to suppress evidence obtained unlawfully during animal control's investigation about an hour before Nance's trial, which started around 2:30 Wednesday afternoon. In their motion, the Davises stated that ''animal control officers and others acting with ... said officers took ... animals in violation of the defendant's constitutional rights and against unlawful entry on defendant's lands and in violation of defendant's constitutional protection against unlawful searches and seizures and without due process of law.''

But in deciding in Nance's favor, Blanton turned to county rules that govern the conduct of animal control officers. In those provisions, animal control officers are allowed to enter private property without consent only if an ''imminent hazard exists.''

Despite testimony from Animal Control Officer Robin Cook that she saw ''ribs, hip bones ... and back bones'' and that one of the horses was ''down,'' Blanton ruled there was no imminent hazard - as defined by county rules - to the horses on Cook's first trip to Nance's property on Dec. 18.

Three days later, on Dec. 21, animal control officers and volunteers used horse trailers to load up nine horses and take them to the Rowan County Fairgrounds. And two days after that trip, officers and volunteers used trailers to take seven more horses to the fairgrounds.

On Dec. 21, Nance, in a written affidavit, said she received a call that someone was loading her horses and taking them away. Nance stated she drove to her property and tried to talk with the people that were loading her horses.

''I said this is private property, please get off and unload the horses,'' Nance said in the statement. ''Approximately six or eight people were standing around and nobody responded to what I had said.''

Nance called police to report the incident. When the policeman arrived, she said she explained to him that her horses were being taken without permission.

Nance said she didn't know warrants had been filed against her for the cruelty charges until she read it in the Post. That's when she contacted her attorney, she said.

Nance said she and her lawyer went to the Sheriff's Department on Dec. 28 to find out about the warrants. But, she stated, authorities could not find any warrants against her, and they told her to come back the next day.

The next day Nance and her lawyer went back to the sheriff's department and received the warrants. ''This was six days after the seven horses were taken,'' Nance stated.

The only people who took the stand Wednesday were Joyce Kirkpatrick, who called in the complaint about the horses on Dec. 18, Cook, James Gardner, a veterinarian, and Theodore Gelvin, who claims Nance tried to run over him with her Jeep on Dec. 21.

Nance was charged with assault with a deadly weapon and communicating threats after allegedly attempting to run over Gelvin.