Janina Carrigan was in district court Oct. 16, 2019, for a case against her neighbor, Marcus L. Nates, who allegedly shot a duck that Carrigan claims is her pet. This altered photograph shows the duck with a bullet wound. The duck later died. The unaltered photo was entered into evidence at the preliminary hearing in Saxonburg.

SAXONBURG — The fatal shooting of a duck caused a legal flap during a preliminary hearing Wednesday at the office of District Judge Sue Haggerty.

On one side, the prosecution argued the duck was a pet and the alleged shooter — Marcus L. Nates, 48, of Clinton Township — should face a felony cruelty charge.

On the other side, the defense countered the duck was no pet, and his client should face lesser charges covered under the state's game law.

“Just because someone calls a duck a pet, it's still a duck, and a duck is covered under the game laws,” said Nates' attorney, Thomas Babinsack of Tarentum. He said the game law, in this case, supercedes the crimes for which Nates is charged, while denying the defendant shot the duck.

Following testimony from the duck's owner and the investigating trooper, Haggerty ordered Nates held for court on a felony charge of aggravated cruelty to an animal and a misdemeanor charge of animal cruelty.

Janina Carrigan said she was awakened by the sound of gunfire the morning of Aug. 25 at her home on Cannon Hill Road where she lives with her mother. It didn't cause any immediate concern.

She and her mother later went outside to feed their two dogs and four ducks.

“He apparently had reloaded,” she said of Nates, her next-door neighbor, “and came back over and shot again. That's how one of my ducks got shot.”She told prosecutor Ben Simon, a Butler County assistant district attorney, that she saw the defendant shoot the male duck on her property.Simon asked if the duck that was shot had a name. She said all of the ducks had names, but she appeared to have trouble naming the one that was shot.“I think that one was 'Runner,' ” Carrigan said.The injured animal appeared to be “in shock,” she said, and it was bleeding.“It had a through-and-through bullet wound,” said Trooper Tyler Dubovi, who was called to investigate that morning. “It appeared its kidney or some other organ was hanging out of the duck.”The animal was alive, but it was “noticeably shaken,” he said.“It was hard to approach the duck,” Dubovi testified. “It didn't want any kind of human contact. It was trying to hide under the porch.”The duck survived for about 24 hours before succumbing to its injuries the next day, according to testimony.Dubovi said that on the morning of the shooting, he spoke to Nates at his house.

“He related to me that he had been outside target shooting earlier in the day with his .22 (caliber) pistol,” the trooper said.The defendant also admitted that before that, he had chased the ducks off his property.But Dubovi told Simon that the target Nates claimed to be shooting at was in the opposite direction of the duck.“The duck in question,” the trooper said, “would have been 15 yards behind him to the right, across the property line.”Carrigan said she and Nates have been neighbors for about two years. Up until around the time of the incident, she described him as a good neighbor.“He would have (my) dogs come over there for ice cream treats and stuff like that,” she testified.He also fed her ducks bread.The neighborly relationship changed in August, she told Simon.“He wanted to go out,” she said, “and I kind of shot that down.”After that, she noted, “he didn't want anything to do with the animals.”But on cross-examination by Babinsack, Carrigan admitted that she and his client in July had exchanged texts of a “personal” nature, and she agreed with Babinsack's assertion that she wanted to have sex with Nates.

Dubovi recounted that another trooper was called to Nates' home about two weeks before the duck was shot. He wanted to talk about ducks coming onto his property, and “nipping” at his dog.The defendant asked what kind of legal recourse he had, and told police that he would shoot at the ducks if necessary.But that trooper advised him that “he could only shoot at the ducks if they were harming him or his dogs,” Dubovi said, and not just because they were on his property.Following testimony, Babinsack told Haggerty that the charges against his client were not applicable.“There are more appropriate charges that should have been filed under the game law,” he said, calling a duck a “game animal” regulated by the state Game Commission.But Simon dissented.“These are pets, your honor; these are not wild fowl,” he said.Babinsack countered, “It's not a pet. It's a duck. It's not fenced in. (Carrigan) didn't even know the duck's name. If it was such a pet, you think she would have known the name and kept it in her house.”Nates remains free on $5,000 unsecured bond.