A former security guard has decided to let Pima County Superior Court Judge Christopher Browning decide if he was legally prohibited from carrying the gun he used to shoot and paralyze a suspected shoplifter.
Joshua Kosatschenko and Nicholas Kagas were working security at a south-side convenience store last June when Tucson police say four young men grabbed burritos and Cheetos, ran outside and got into a car.
Kagas fell to the ground with his feet under the car while trying to detain one of the men, and Kosatschenko shot the driver when he refused to stop, paralyzing him from the waist down.
The Pima County Attorney's Office opted not to seek an indictment against Kosatschenko pertaining to the shooting. However, prosecutors persuaded grand jurors to indict Kosatschenko on a charge of possession of a deadly weapon by a prohibited possessor, which carries a maximum sentence of 3.75 years in prison.
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Because Kosatschenko has a juvenile criminal record, he no longer has a right to carry firearms.
Kosatschenko and his attorney, Brad Roach, were in court Tuesday to ask Browning to dismiss the case.
Roach argued the Arizona Department of Public Safety granted Kosatschenko a license to work as an armed and unarmed security guard.
Deputy Pima County Attorney Kellie Johnson said Kosatschenko left pertinent information off his permit application and a "reasonable" person would have investigated further if they knew about Kosatschenko's criminal history.
Browning told the attorneys he didn't believe it would be appropriate for him to dismiss the case and that a jury ought to decide if DPS' involvement in the case is an affirmative defense.
After conferring, Roach and Kosatschenko announced they wanted Browning to decide Kosatschenko's guilt or innocence.
The trial is scheduled for Nov. 30.
Court records show Kosatschenko pleaded guilty to possession of a deadly weapon on school grounds at the age of 11 and to two counts of aggravated assault with a deadly weapon at age 13. He was placed on probation both times.
Shortly after turning 18 in 2007, Kosatschenko applied to have his rights restored and his juvenile records destroyed, but his requests were denied.
He successfully obtained his weapons permit because DPS background searches only bring up adult convictions.
