Additionally, prosecutors met the burden to believe Fortney “had a firearm on or about his person or under his control while committing the offense of reckless homicide and displayed the firearm, brandished the firearm, indicated that he possessed the firearm, or used it to facilitate the offense,” the ruling states.
A hearing date was not mentioned in the ruling. Prosecutors and the defense attorney both filed documents on the case in March.
Brooks, a former Miamisburg High School football player, died about 11 a.m. that day after being me at the door of of Fortney’s North Riverview Avenue and being wounded in the chest by a bullet, court records show.
Both defense and prosecutors agreed that Fortney’s DNA was found on spent casings and swabs of gun. They also agreed that documents show the defendant got “his gun to show Calob when he knew there was no safety” switch on the black semi-automatic handgun, according to court records.
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Fortney first told police Brooks “brought the gun to his house, and that Calob accidentally shot himself,” according to a filing by the Montgomery County Prosecutor’s Office.
Prosecutors then said Fortney told police that he was holding the gun when it fired, fatally wounding the victim, court records show. Police found the gun over a nearby levee, where Fortney said he hid it, court records state.
Defense attorney Jon Paul Rion said in recent court filings the facts “are much more in line with the negligence definition” than reckless homicide.
“As Gavin went to show Calob the gun, it went off. It happened very quickly,” Rion stated. “Gavin was then frozen in fear as he looked at his friend, who had just been accidentally shot.
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“A mere failure to perceive or avoid risk, because of lack of due care, does not constitute reckless conduct….to establish recklessness, one must recognize the risk of the conduct and proceed with a perverse disregard for that risk,” according to Rion’s filing.
A Miami Valley Regional Crime Lab expert testified “the only way this firearm would discharge a bullet was for the firearm to be loaded and for the trigger to be pulled by a finger,” court records show.
Fortney “acted recklessly in causing the death” of Brooks,” according to filings from prosecutors.
They said the defendant had used marijuana before the shooting, knew the gun was loaded and knew the weapon had no safety switch.
Fortney “wasn’t evidencing concern and panic due to the serious injury he inflicted on Calob,” court records state. “He instead took a the few minutes before police arrived to remove and conceal not only the gun, but also his marijuana and his money, before police arrived.”
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