Whether Blake Christopher Tademy actually pulled the trigger of a 9mm Glock handgun won't make any difference to Nicole Lee Kerby, who died last November after being shot in the head.

But whether 3rd District Judge William Barrett believes Tademy pulled the trigger or simply held the gun that shot Kerby, may determine the severity of the charges Tademy faces in court.Defense attorney Sue Denhardt asked Barrett during a preliminary hearing Wednesday to bind Tademy over on a charge of negligent homicide, a class A misdemeanor. Tademy, 24, currently faces charges of manslaughter, possession of a dangerous weapon by a restricted person, and tampering with evidence, each a second-degree felony punishable by up to 15 years in prison and a $5,000 fine.

The penalty for a class A misdemeanor is one year in jail and a $2,500 fine.

Barrett's decision may hinge on how he interprets recklessness as worded in the manslaughter charge. Denhardt argued that Tademy's actions of holding the gun that shot Kerby over the left eyebrow did not rise "to the level of recklessness."

But, countered prosecutor Carlos Esqueda, "Pointing a gun is not simple negligence. That's a deliberate act."

Witness Andrea Lobato, 16, testified during the hearing that on Nov. 19 she and Kerby, 16, went to visit her sister, Althea Lobato, at her apartment, 771 S. 2000 East. While there, Andrea Lobato witnessed Tademy playing with the 9mm Glock.

"He was pointing the laser at everyone in the room," Andrea Lobato said. "I told him that if he was stupid enough to shoot himself in the leg a couple of years back, he was stupid enough to shoot somebody in the room."

Tademy told police after being arrested Nov. 22 that he had been "playing with the gun . . . popping rounds out of the top," testified Salt Lake police detective Thorsten Beger.

Tademy first told police he had been holding the gun with both hands in a "firing grip" when "it just went off," Beger said.

But later, Beger said he asked Tademy, "Did you deliberately pull the trigger?"

Tademy's response, according to a police transcript read in court. was "I must have, in order for it to go off."

Tademy was waiting to hear a "click" in the apparently defective trigger, which would tell him the gun was ready to fire, according to Beger's testimony.

"He said he didn't mean to do it. He was just playing with the gun and it went off," Beger said.

Neither Andrea Lobato nor her sister witnessed the shooting.

"Blake jumped up and he grabbed me and told me he'd shot her," Andrea Lobato said.

Althea Lobato said Tademy, the father of her three children, wanted to stay, but she urged him to leave.

En route to a friend's place, Tademy tossed parts of the dismantled 9mm Glock into two residential yards, Beger said. Tademy later helped police recover the pieces.

Tademy, who was on parole for a felony attempted theft charge, also told Beger he'd bought the 9mm Glock about a month before the shooting because he was concerned about his safety and the safety of his family, Beger said.