Friends and family members of the victim listened and frequently cried Thursday afternoon during testimony in the preliminary hearing for a Topeka man accused of shooting and killing 18-year-old Davin Gregory Kerr earlier this spring.

Dawson Edward Paine, 21, was bound over for trial to face one charge of second-degree murder in connection with Kerr’s death on March 5. Testimony during the hearing indicated that Paine and Kerr were with another Lawrence man, Hunter Gaines, when Kerr was unintentionally shot.

On Thursday, Gaines testified that the three friends were playing video games just after 10:30 p.m. in Kerr’s bedroom at his grandmother’s house in the 2900 block of Crestline Drive.

Gaines said Paine pulled a 9mm Ruger pistol from his pocket, and the three passed the gun around before Gaines and Kerr returned to their games.

“At one point he was pointing it at me and Davin,” he said. “I was a little shocked. Davin said ‘don’t do that,’ but it wasn’t a big deal. Dawson has had guns and pointed them at people in the past.”

Gaines testified that while he was holding the gun he could see it had a loaded magazine, which means bullets were in the gun. He said the safety was not engaged when the gun was handed to him, but he turned it on before handing it back to Paine.

Defense attorney Michael Clarke asked Gaines to demonstrate how Paine was holding the gun prior to the shooting. Gaines extended his right arm and pointed his finger right and then left across the courtroom.

“He was pointing the gun and it went off,” Gaines said.

Kerr was shot in the abdomen, according to testimony. Gaines said he immediately told Paine to leave and then called 911 for help.

Deputy District Attorney Joshua Seiden played a recording of the call during the hearing. More than a dozen family members and friends wept audibly as they listened to Gaines frantically explain what had happened to the 911 operator.

Throughout the five-minute call, Kerr can be heard in the background quietly moaning. Gaines attempts to answer questions from the operator, but as Kerr’s moans grow quieter Gaines becomes agitated.

“I’m getting upset,” Gaines says to the operator on the recording. “I don’t know what’s taking so long. My friend is dying in my arms.”

During cross examination, Gaines testified that there was no animosity and there had been no disagreements among the three men prior to the shooting. He also said the three were not playing any type of game with the gun.

Gaines told Clarke that he couldn’t recall Paine saying anything before the shot was fired. Gaines said the sound of the gun surprised him, and that Paine seemed startled as well as he said an expletive. Gaines said Paine spoke to Kerr as he took the gun and ran from the house.

“He was also very apologetic toward Davin,” Gaines said. “He was just saying sorry.”

Lawrence Police Detective Nathaniel Haig testified that he interviewed Paine in Topeka after police there arrested him in connection with the shooting.

During questioning Paine admits to shooting Kerr, but is caught lying about how he returned to Topeka, where he had stayed after he arrived, and how he acquired the gun. After Paine is made aware that Haig has information conflicting with what he has been saying, Paine confirms Haig’s information, including that the gun was stolen from a friend several days before Kerr’s shooting.

Paine tells Haig during the interview that he had “racked the slide” of the gun to empty bullets from the chamber, but it was possible that one bullet hadn’t fully ejected.

“I pulled the trigger and it went off,” Paine tells Haig in the recording.

After the two witnesses’ testimony, Seiden asked Douglas County District Judge Amy Hanley to find that there was enough evidence to send the case to trial. Defense attorney Clarke said the state had met its burden for the case to move forward, just not for second-degree murder.

Clarke told Hanley that a charge of second-degree murder required the state to show that a person acted with “extreme recklessness” and “disregard for human life.”

He said a game of Russian roulette would qualify for second-degree murder because there would be knowledge of a bullet in the chamber. He also said shooting at targets set up in front of an occupied school yard would qualify for the charge. In this case, Clarke said, there is no indication that Paine knew the gun was still loaded.

Seiden disagreed.

“There is hardly anything that would show less regard for human life than pointing a gun at someone without knowing whether there’s a bullet in the chamber,” he said. “And then pulling the trigger.”

Hanley found that there was enough evidence to move forward, and said arguments regarding the specific charge should be made to a jury. Hanley set Paine’s next court date for July 10, at which time Paine will also be arraigned on a charge of criminal threat that alleges that Paine threatened to commit violence toward another person on March 3.

A second-degree murder conviction carries a penalty of up to 41 years in prison. Criminal threat carries a penalty of up to 17 months in prison.

Paine remains in custody at the Douglas County jail without bond. He is currently serving a 12-month sentence for endangerment/recklessly exposing to danger of great bodily harm or death, and child endangerment. A plea agreement offering probation in that case was signed on Feb. 22, but Paine’s probation was revoked after his arrest in connection with the criminal threat charge.

After the hearing, Kerr’s mother, Brandy Kerr, said she wanted justice for her son, “who didn’t get to live his life.” However, she said, she wanted the penalty to be fair.

“I don’t want the guy to spend the rest of his life in prison,” she said. “I believe in rehabilitation, but there have got to be consequences.”

Andrea Albright (she/her), reporter, can be reached at aalbright (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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