photo by: Chris Conde/Journal-World

Dawson Edward Paine appears at his preliminary hearing on May 16, 2024, in Douglas County District Court. Paine was bound over for trial on one count of second-degree murder in connection with the shooting death of 18-year-old Davin Kerr on March 5, 2024.

A Topeka man accused of killing a teenager has been ordered to stand trial in Douglas County District Court after a witness testified that the man was playing with a gun and pointing it at people before pulling the trigger.

The defendant, Dawson Edward Paine, 21, faces one felony count of second-degree murder in the shooting death of Davin Kerr, 18, of Lawrence, on March 5 in the 2900 block of Crestline Drive.

A witness to the shooting, Hunter Gaines, 18, testified during a preliminary hearing on Thursday that he, Paine and Kerr were in Kerr’s grandmother’s house that evening. He said he and Kerr were playing video games — Kerr on the computer and Gaines using the TV — and Paine was “f–ing around” with a 9mm pistol, pointing it at both Gaines and Kerr.

Deputy District Attorney Joshua Seiden asked if Gaines thought it was a big deal that Paine was handling the gun that way, to which Gaines said “it was a little startling” but that it wasn’t out of the ordinary.

“It wasn’t a first-time occurrence,” Gaines said.

He said the three of them had passed the gun around that evening, and he noted that it was loaded and activated the gun’s safety before passing it to Kerr, who then passed it back to Paine, who began “playing with it.”

“He was pointing the gun and it went off,” Gaines said. The bullet struck Kerr in the lower abdomen.

He said Paine said “Oh sh–t” before apologizing to Kerr several times. Gaines said he told Paine he was calling the police, and Paine left.

The court then listened to a 911 call by Gaines in which a low, nearly constant moan could be heard in the background while Gaines explained to the dispatcher that his friend had been shot. A number of people attending Thursday’s hearing began crying when the audio was played.

Gaines said during the call that he did not know who had fired the gun, but he testified that he later told investigators it was Paine. He told Seiden he had lied to the dispatcher because he didn’t know at that point if Kerr would die.

At one point during the call Gaines said he was getting upset because paramedics were taking too long. He asked the dispatcher to forgive him in case he said anything mean to her.

“I don’t know what’s taking so long. My best friend is dying in my arms,” Gaines cried to the dispatcher.

The dispatcher coached Gaines on tending the wound in Kerr’s abdomen until paramedics arrived.

Gaines testified that he believed the incident was an accident.

After the call was played, Judge Amy Hanley recessed the court for 10 minutes for upset attendees to gather themselves. Many of them went out to the hallway and continued to weep.

Lawrence Police Detective Nathan Haig then testified about an interview with Paine days after the shooting at the Topeka Police Department after Paine was arrested. Haig reviewed an audio recording of that interview with the court.

In the interview Paine never denied having shot Kerr. He said he had been drinking that day from a half-gallon bottle of vodka. His story was similar to Gaines’ story about the three of them hanging out.

He said that he and Kerr had been together most of the day and had taken the gun shooting at another friend’s house. He said that he and Kerr had been “talking sh–t” with each other and that he pointed the gun “jokingly” at Kerr after Kerr said something insulting but that he thought he had unloaded the weapon.

Paine said that before pointing it at Kerr he had pulled out the magazine and “racked” the gun. He said that racking the gun was the only way to get the chambered round out of the gun.

“I took the clip out and racked it, but I think I did it too fast. The bullet never came out,” Paine said.

Paine said Kerr was conscious right after the gun went off and that he spoke with him briefly before leaving the scene.

Paine then walked near Holcomb Park before getting a ride to Topeka, he said during the interview. He initially told police he was picked up by an “older woman who offered him a ride,” but later in the interview he admitted that he had lied and that he was picked up by a friend.

When Haig asked where the gun came from, Paine first said he bought it from a “friend of a friend” but later admitted that he had borrowed it from a friend.

In Topeka, Paine said he spent the night in a park before meeting up with a friend. He said that while in Topeka he bought some Xanax, which he snorted, and he stashed the weapon at his friend’s house. He said he gave his phone to a friend to get rid of.

Paine told police he fled the scene because he was afraid to get in trouble.

Paine’s attorney, Michael Clarke, argued that the evidence at the hearing amounted only to involuntary manslaughter, not the murder charge the state was pursuing. He said that Paine tried to unload the gun before pointing it and while his actions were reckless, he did make an effort to make the gun safe.

Seiden argued that Paine’s actions amounted to extreme indifference to human life.

“There is hardly anything that could be more reckless than pointing a firearm at someone without checking if it was loaded, then pulling the trigger,” Seiden said.

Hanley found probable cause to order Paine to stand trial for second-degree murder and scheduled him to be arraigned on July 10. Clarke asked for the date to be at least 45 to 60 days out so that he could engage in negotiations with the state to work out a possible plea.

Paine is also facing a count of felony criminal threat for an unrelated incident on March 3. He was also on probation at the time of the shooting for a 2022 incident in which he was convicted of two misdemeanor counts of endangerment of a child. He had been sentenced in that case in February.

— This story has been corrected to reflect that Paine is from Topeka.