Kitsap County prosecutors charged Douglas Bauer because he owns the pistol his girlfriend's son took to Armin Jahr Elementary. It fired through the boy's backpack, critically wounding Amina Kocer-Bowman in a classroom. Amina spent six weeks in a hospital and endured numerous surgeries for internal injuries caused by the shooting.
Bauer's lawyer, Wayne Fricke, told the judges on Monday that the case shouldn't proceed because Bauer did nothing to cause the assault.
Guest Judge C.C. Bridgewater asked the prosecution how Bauer could possibly have caused the assault. Deputy Prosecutor Jeremy Morris replied that Bauer allowed the boy to "sleep in a room of loaded guns" and that without that access, the shooting couldn't have happened.
The Kitsap Sun reports the appeals court will decide whether prosecutors can go ahead with the assault charge. A written decision could take months.
The boy pleaded guilty to reckless endangerment and was sentenced to counseling and had to write a letter of apology to Amina.
The boy's mother, Jamie Lee Chaffin, pleaded guilty to unlawful possession of a firearm as a felon.
In exchange for her guilty pleas, the court dropped an assault charge against her and she will likely testify against Bauer if his case goes to trial.