Liz Kellar

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February 4, 2011
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Ruling: Opossum killing no felony

Nevada County Superior Court Judge Candace Heidelberger found there was sufficient evidence to try 19-year-old Carter Livingston on a charge of cruelty to animals.

But she also decided the case would be more appropriately tried as a misdemeanor, rather than as the felony originally charged by the District Attorney's Office.

Livingston, of Lake of the Pines, allegedly posted a video on Facebook that showed him hitting an opossum 44 times with a meat cleaver as his 8-year-old brother and 10-year-old sister watched; his then-15-year-old sister was filming the incident.

The incident came to light in June 2010, after a woman who saw the video on Facebook reported it to the San Diego Humane Society; the Livingston family lived in Vista in San Diego County before moving to Lake of the Pines.

There was an arguable right for Livingston to kill the opossum, which had become a nuisance to the family, Heidelberger said at a hearing Friday afternoon. The manner in which Livingston killed the animal was the issue, she said.

Livingston's lawyer, Thomas Leupp, had urged the judge to reduce the felony charge to a misdemeanor, a move strenuously objected to by Nevada County Deputy District Attorney Oliver Pong.

Heidelberger said that she took several factors into account in holding Livingston to answer on the charge, including the fact that he planned the killing and videotaped it with his younger siblings looking on, and then posted the video on Facebook.

She also noted the tool used to dispatch the animal - a meat cleaver - and the comments being made by Livingston during the videotaped incident.

"The possum clearly suffered," Heidelberger said. "The video was disturbing to watch."

But some of Livingston's actions on the video could be construed in two very different ways, she said.

"Sometimes I saw enjoyment ... Sometimes I saw nervous laughter," Heidelberger said. "I predominantly heard, 'I feel horrible ... I feel weird.' I saw discomfort."

Heidelberger noted that Livingston took the video down before being contacted by law enforcement, acknowledged his "very poor" judgment, and has expressed remorse and shame.

She added that a psychological evaluation found no sign of mental disturbance or any likelihood he would repeat his actions.

Animal activists in the courtroom were clearly displeased at the judge's decision to reduce the charge to a misdemeanor, which still could carry a maximum penalty of one year in county jail. A felony charge would have carried a maximum penalty of three years in prison.

"We are very disappointed that this heinous crime has been reduced to 'just a young man's mistake,'" said Kathy Labelle, the director of the Coalition of Animal Welfare and Support. "It is hard to imagine that there could be a worse case of animal cruelty than this one."

"Judge Heidelberger outlined all the factors she carefully considered in reaching (that) conclusion," Livingston's attorney, Thomas Leupp, said. "We're very pleased."

Leupp added that Livingston is open to a negotiated plea that would involve community service, adding, "Carter's very anxious to embark on his two-year mission (as part of the Mormon church), which he was slated to begin in October."

Livingston pleaded not guilty in September and remains out of jail on his own recognizance; he is not allowed to be around animals without a responsible adult present. A pre-trial conference was set for 9 a.m. March 14.

To contact Staff Writer Liz Kellar, e-mail or call (530) 477-4229.

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The Union Updated Feb 4, 2011 11:06PM Published Feb 4, 2011 11:05PM Copyright 2011 The Union. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.