TOPEKA, Kan. (WIBW) -- The shooting death of Ashley Usher, an 18-year-old, was "an unfortunate accident," and Auston Michael Shane McNeely didn't intend to shoot Usher, his girlfriend, nor kill her, defense attorney Gary Conwell told a Shawnee County District Court judge on Friday.
Don't bind over McNeely, 17, to face trial for murder, Conwell said.
Shawnee County Deputy District Attorney Brett Watson argued that McNeely recklessly killed Usher on August 17, that McNeely last said he was struggling with Usher when the 9mm semiautomatic pistol discharged. Watson urged District Court Judge David Debenham to bind over McNeely on a murder count.
The judge bound over McNeely on one charge of reckless second-degree murder, interference with a law enforcement officer, theft of a firearm, and criminal use of a firearm.
McNeely will be tried starting on June 29, the judge said. The judge entered "not guilty" pleas on McNeely's behalf on the four charges.
McNeely's case started in juvenile court, but on September 13, McNeely formally was charged as an adult with reckless second-degree murder in the fatal shooting of his girlfriend.
On September 12 after a hearing, District Court Judge Darian Dernovish waived McNeely to adult court to stand trial.
The shooting of Usher occurred inside 2229 S.E. Ohio, the home where Usher's mother and siblings lived. McNeely and Usher were in a serious relationship, Usher's mother testified in juvenile court.
On Friday, a forensic pathologist testified that Usher was shot once, but the round entered her left breast, exited below the breast and re-entered her abdomen, striking her liver, spleen, pancreas and a kidney.
Usher died shortly after surgery, the pathologist said.
Topeka Police Aaron Bulmer testified, "She said to me that it was an accident."
Police Sgt. Kerry Connell said she heard Usher say McNeely accidentally shot her.
Connell asked Usher who shot her, and Usher looked back to the kitchen where McNeely was, the sergeant testified.
"Am I going to die?" Usher asked Connell.
The charges McNeely faces are the same as those he faced in juvenile court, but the penalties for convictions as an adult carry much longer terms of incarceration than juvenile convictions.
If a juvenile is convicted of felonies and juvenile jurisdiction of the youth is extended, that jurisdiction generally expires when the defendant turns 22 years and 6 months old. That includes the murder conviction.
However, if a juvenile is convicted as an adult, he faces the sentencing grid any other adult defendant faces.
For example, a reckless second-degree murder conviction carries a prison sentence ranging from nine years and one month to 41 years and one month, depending on the defendant's earlier criminal convictions.
After Usher was shot, McNeely twice tossed the pistol outside and also threw away the shell casing ejected from the pistol when she suffered the fatal wound.
Hiding the gun and shell casing show criminal sophistication for a teen and is "frightening" to the judge, Dernovish said.
In juvenile court, McNeely earlier testified that he stole the pistol three weeks before Usher was shot and he test-fired one of the two bullets in the firearm. McNeely testified he carried the pistol, which had one bullet, for protection. On Aug. 17, McNeely took the pistol from his waistband and handed it to Usher, he retrieved it from her to show her how to operate it, and as he was handling it, it discharged, striking her, according to his testimony.