Kevin S. Varner, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Just hours after Kevin Varner shot and killed Danielle Brown in Lake County, Varner fled a routine traffic stop and led police on a high-speed chase in Benton County. During the chase, Varner fired the murder weapon through the back window of his vehicle in the direction of the officer pursuing him. Varner ultimately was captured and convicted in Benton County of attempted aggravated battery, possession of a firearm by a serious violent felon, and criminal recklessness. He was also found to be a habitual offender and to qualify for a firearms sentencing enhancement.

[2] Varner appeals these convictions and enhancement, raising a variety of claims that we ultimately find unpersuasive. We therefore affirm his Benton County convictions in this appeal. In a separate decision issued today, we also affirm his convictions arising from the murder prosecution in Lake County.

Facts

[3] Varner killed Brown in Lake County using a Draco firearm. The gun was capable of firing the same ammunition as an AK-47 rifle and could penetrate police body armor. After the killing, Varner fled the scene and was driving in Benton County when he failed to make a complete stop at a stop sign. Benton County Sheriff's Department Deputy Paden Clements began following Varner's vehicle, which quickly pulled into a gas station and parked at a gas pump. When Deputy Clements pulled in behind Varner's vehicle and opened the door of his marked police vehicle, Varner drove away from the gas station and ran a red light. Deputy Clements activated his emergency lights and pursued Varner at speeds reaching approximately 100 miles per hour.

[4] During the pursuit, Deputy Clements observed Varner reaching into the passenger side of his vehicle. Varner then raised his arm over the headrest, pointing backward toward Deputy Clements’ vehicle. Deputy Clements heard gunshots and saw Varner's back window explode outward. Deputy Clements also heard bullets “whizzing” past his vehicle and described the sound as “very close.” Tr. Vol. III, p. 47. The gunfire caused Deputy Clements to swerve his vehicle and make a “hard turn” over a concrete barrier before he could renew his pursuit.

[5] The chase moved from the highway onto county roads. When Deputy Clements temporarily lost sight of Varner's vehicle around some turns, Varner threw the gun from his vehicle onto the road. As Deputy Clements navigated the turns, he discovered Varner's vehicle wrecked in a ditch. Varner had fled on foot, but other responding officers soon apprehended him nearby. When Deputy Clements retraced the pursuit route, he recovered the gun that Varner had thrown onto the road. Shell casings fired from that weapon were found inside Varner's vehicle.

[6] The State charged Varner with attempted murder, attempted aggravated battery, possession of a firearm by a serious violent felon, criminal recklessness, and reckless driving. The State also alleged that two firearm sentencing enhancements and a habitual offender enhancement applied.

[7] Varner, who represented himself at trial, admitted to the jury that he fired the shots but claimed he did not intend to kill or injure Deputy Clements. The jury acquitted Varner of attempted murder and reckless driving but found him guilty of attempted aggravated battery, possession of a firearm by a serious violent felon, and criminal recklessness. The jury also determined that Varner was a habitual offender and that the two firearms sentencing enhancements applied. At sentencing, the trial court vacated the criminal recklessness conviction and one firearm enhancement based on double jeopardy concerns, and ultimately imposed an aggregate sentence of 61 years. Continuing to represent himself on appeal, Varner challenges all his convictions.

Discussion and Decision

[8] On appeal, Varner purports to raise 11 issues, which we restate as follows:

I. Whether Varner is entitled to discharge under Indiana Criminal Rule 4(B)?

II. Whether the trial court properly refused to dismiss charges against Varner?

III. Whether the trial court abused its discretion and showed bias toward Varner in admitting in his Benton County trial evidence of his testimony in the Lake County murder trial?

IV. Whether the trial court abused its discretion in rejecting Varner's proffered instruction on the continuing crime doctrine?

V. Whether the State proved beyond a reasonable doubt Varner's commission of aggravated battery?

VI. Whether alleged irregularities in the habitual offender proceeding justify reversal?

We conclude that Varner has failed to establish any reversible error and we therefore affirm his convictions.

I. Varner Is Not Entitled To Discharge Under Criminal Rule 4(B)

[9] Varner contends he is entitled to discharge under Criminal Rule 4(B), which specifies:

A defendant held in jail on a pending charge may move for an early trial. If such motion is filed, a trial must be commenced no later than seventy calendar days from the date of such motion except [under circumstances not relevant here] ․

If a defendant is held beyond the time limit of this section and moves for dismissal, the criminal charge against the defendant must be dismissed.

[10] This issue turns on whether Varner's pro se “Motion for Early Trial” was properly rejected by the court. Although Varner first was represented by counsel in this prosecution, Varner filed a pro se “Notice of Intent to Proceed Pro Se and Waiver of Right to Counsel” on March 16, 2023. The trial court set the motion for hearing on April 17, 2023. But a week before that hearing, Varner filed his pro se “Motion for Early Trial,” which sought trial within the next 70 days under Criminal Rule 4(B). The trial court denied this motion, ruling that it was not required to consider the pro se motion because Varner was still represented by counsel.

[11] Varner's counsel independently moved to continue the hearing on Varner's motion to proceed pro se, which the trial court rescheduled to April 25, 2023. Varner failed to appear for the April 25 hearing because he was incarcerated in Lake County, and no transport order had been issued to bring him to Benton County for the hearing. The hearing was then reset for June 6, 2023.

[12] After the hearing, the trial court granted Varner's motion to proceed pro se and appointed his existing counsel as standby counsel. The court then set a trial date of August 8, 2023. Varner objected to this date, arguing that his trial should occur no later than June 26, 2023, due to his pro se request for early trial. The trial court overruled Varner's objection. Varner then filed a “Motion for Relief from Judgment,” which the court also denied. Varner's trial commenced August 8, 2023.

[13] On appeal, Varner's argument for discharge rests on the premise that his pro se “Motion for Early Trial” filed April 10, 2023, started the Rule 4(B) clock. As his trial began more than 70 days after April 10, 2023, Varner claims he is entitled to discharge.

[14] Varner's argument is unavailing because he was represented by counsel when he filed his “Motion for Early Trial.” A trial court need not respond to a pro se early trial request from a defendant represented by counsel. Black v. State, 7 N.E.3d 333, 338 (Ind. Ct. App. 2014). In such circumstances, the defendant speaks to the court through counsel, as he is not entitled to a hybrid form of representation. Id.

[15] Although Varner's motion to proceed pro se was pending at the time that he filed his Rule 4(B) motion, Varner remained represented by counsel until the trial court granted his motion to proceed pro se. The delay in the hearing on this motion—a fact on which Varner focuses—is irrelevant. Until the trial court could ascertain whether Varner was validly waiving his right to counsel and it permitted him to proceed pro se, Varner was represented by counsel. While he was represented by counsel, his pro se filings were properly rejected. Id.

[16] By his own admission, Varner did not file a new Rule 4(B) motion once he was in sole control of his own defense. Appellant's Amended Reply Br., p. 13. Accordingly, the Rule 4(B) clock never started running, and Varner was not entitled to discharge.

II. Varner Was Not Placed in Double Jeopardy

[17] Varner claims the trial court erred in denying his motion to dismiss the charges against him because they violated the prohibition against double jeopardy. We generally review a trial court's denial of a motion to dismiss for an abuse of discretion. Brittingham v. State, 208 N.E.3d 669, 672 (Ind. Ct. App. 2023). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before it. Id. When, as here, the motion presents a pure question of law, we apply a de novo standard of review. Id.; Wadle v. State, 151 N.E.3d 227, 247 n.20 (Ind. 2020), modified by A.W. v. State, 229 N.E.3d 1060 (Ind. 2024) (noting that “each substantive double-jeopardy claim turns on a unique set of facts, which—along with the applicable statutory offenses—an appellate court reviews de novo”).

[18] In his motion to dismiss, filed after the jury was sworn, Varner alleged that the criminal recklessness and attempted aggravated battery charges were improper because they were lesser included offenses of the attempted murder charge. He also alleged that the two firearms enhancements violated double jeopardy because they arose from a single episode of criminal conduct. Finally, he asserted he could not be charged with possession of a firearm by a serious violent felon in Benton County because he was charged with and partially tried for the same offense in Lake County.

[19] As to his first two claims, Varner essentially contends that the State was required to charge greater and lesser included offenses alternatively. But prosecutors have “absolute discretion” in charging. Jones v. State, 438 N.E.2d 972, 975 (Ind. 1982). Although a multiplicity of convictions may be subject to constitutional and statutory constraints, these constraints apply only when there has been a former prosecution or a conviction, not merely charges. See, e.g., Ind. Code § 35-41-4-3 (barring a prosecution only if “there was a former prosecution of the defendant based on the same facts and for commission of the same offense” and certain other conditions are met); see also Ind. Const. art. 1, § 14 (providing that “[n]o person shall be put in jeopardy twice for the same offense”).

[20] In Wadle, our Supreme Court recognized that “[t]he Indiana Double Jeopardy Clause protects only against successive prosecutions for the same offense” and that substantive double jeopardy prohibits a court from “convicting and punishing a defendant in a single trial beyond what the statutes clearly permit.” 151 N.E.3d at 247 (emphasis added). The lesser included offense statute provides that “judgment and sentence may not be entered against the defendant” for both an offense and an “included” offense. Ind. Code § 35-38-1-6 (emphasis added).

[21] Consistent with absolute prosecutorial discretion, none of these authorities prohibit the State in the same prosecution from charging a defendant with both the greater and lesser offenses in a single prosecution or alleging a firearm enhancement as to multiple offenses. Charges that violate double jeopardy—such as those filed for the same crime and same act for which the defendant was convicted or acquitted in a previous prosecution—are subject to dismissal. The mere filing of charges that could result in double jeopardy violations if the convictions are prosecuted to conviction and sentencing does not generate a double jeopardy violation in and of itself. Varner's arguments to the contrary—which cite double jeopardy decisions out of context—fail.

[22] We therefore turn to Varner's only remaining double jeopardy claim: that his prosecution for possession of a firearm by a serious violent felon in Benton County was barred by double jeopardy because the same charge in Lake County had been dismissed with prejudice through his plea agreement in the midst of his Lake County trial. Varner provides no analysis of this claim. He simply cites two appellate decisions—one state (applying an outdated double jeopardy analysis) and one federal—and asserts a double jeopardy violation under the federal constitution and under Wadle. Varner offers no more explanation or argument, and we will not make them on his behalf. He therefore has waived this successive prosecution claim by failing to provide cogent argument. See Ind. Appellate Rule 46(A)(8)(a) (requiring the appellant's brief to “contain the contentions of the appellant on the issues presented, supported by cogent reasoning”).

III. The Trial Court Did Not Err in Its Handling of the Evidence of the Lake County Killing

[23] Varner contends the trial court erroneously admitted evidence of the Lake County killing during his Benton County trial. In a related claim, he argues that the trial court, while discussing this evidence, “expressed improper opinions of the controversy over which the judge was presiding, gave the State of Indiana legal advice, and/or was not an impartial judge.” Appellant's Amended Br., p. 38. We find no evidentiary error and no judicial impropriety.

A. No Evidentiary Error

[24] Indiana Evidence Rule 404(b) prohibits admission of evidence of a “crime, wrong, or other act” solely to prove the defendant's character “in order to show that on a particular occasion the person acted in accordance with the character.” Evid. R. 404(b)(1). But the Rule does not preclude admission of evidence if offered “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Evid. Rule 404(b)(2). Even if the requirements of Rule 404(b) are met, “[t]he court may exclude the evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Ind. Evidence Rule 403.

[25] When reviewing evidence admitted under Rule 404(b), we engage in a two-step analysis. We first determine whether, consistent with Evidence Rule 404(b)(2), the challenged evidence is relevant to a matter at issue other than the defendant's propensity to commit the charged crime. Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019). If this hurdle is cleared, we must then consider, consistent with Evidence Rule 403, whether “the evidence's probative value is not ‘substantially outweighed’ by the danger of unfair prejudice.” Fairbanks, 119 N.E.3d at 568 (quoting Evidence Rule 403).

[26] Varner challenges the trial court's admission of the testimony of a detective who recounted some of Varner's testimony during the Lake County trial. The trial court limited the admission of this evidence to the issue of motive. The detective ultimately testified that during Varner's trial in Lake County, Varner admitted to shooting the murder victim multiple times with the Draco firearm on February 12, 2023—the same day that Varner fired at Deputy Clements in Benton County. On cross-examination, the detective noted that Varner alleged in the Lake County trial that he acted in self-defense.

[27] Varner first claims this evidence of his prior testimony was inadmissible hearsay. But he has waived this claim by failing to support it with cogent argument or citation to supporting authority. See App. R. 46(A)(8)(a).

[28] Varner also argues that the challenged evidence was not relevant and that it was offered only to prove the forbidden inference: that Varner's violent propensities reflected in the Lake County murder made it more likely that he acted in conformity with his bad character in Benton County later that day. See Evid. R. 404(b)(1). But “ ‘[e]vidence of motive is always relevant in the proof of a crime[.]’ ” Davis v. State, 186 N.E.3d 1203, 1212 (Ind. Ct. App. 2022) (quoting Ross v. State, 676 N.E.2d 339, 346 (Ind. 1986)).

[29] Varner's testimony in Lake County was highly probative of his motive in committing the Benton County offenses. Varner was fleeing the Lake County murder when he fired the murder weapon at Deputy Clements. The Lake County murder evidence supported the State's theory that Varner's motive in firing at Deputy Clements was to prevent the officer's pursuit and apprehension of him for the earlier killing.

[30] Varner alternatively claims that this evidence of the Lake County killing was inadmissible under Evidence Rule 403 because its probative value was substantially outweighed by its potential for unfair prejudice, confusing the issues, and misleading the jury. Although the trial court otherwise excluded evidence of the murder, it found Varner's admissions at the Lake County trial “highly probative in terms of motive” and that evidence of those admissions had been “stripped down as much as possible” to limit prejudice. Tr. Vol. III, p. 36. The court also instructed the jury that it could consider this evidence only on the issue of motive.

[31] The probative value of Varner's prior admissions at the Lake County trial was great: Varner admitted to the killing and stated that while fleeing, he shot at Deputy Clements. See D.R.C. v. State, 908 N.E.2d 215, 224 (Ind. 2009) (ruling that “[t]he value of specific acts evidence to prove motive rests on the strength of proof that the defendant in fact committed that other act”). Although the evidence was prejudicial, Varner has failed to show how it confused the issues or misled the jury. Moreover, this prejudice was curtailed by the trial court's substantial narrowing of the scope of the detective's testimony and the court's limiting instruction. Weisheit v. State, 109 N.E.3d 978, 989 (Ind. 2018) (concluding that the jury is presumed to follow the instructions). Under these circumstances, the trial court properly determined that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury.¹

B. No Judicial Bias

[32] Varner claims the judge showed bias and expressed opinions adverse to him when determining the admissibility of the 404(b) evidence. He alleges that this resulted in a denial of due process and an unfair trial, as a “trial before an impartial judge is an essential element of due process.” S.E. v. State, 929 N.E.2d 1281, 1287 (Ind. 2010).

[33] Varner focuses on an exchange between the deputy prosecutor and judge about the State's planned use of the 404(b) evidence. A review of that exchange shows that the judge did not state an opinion, offer advice, or show impartiality during that discussion. In fact, the judge's comments ensured that the State's presentation of evidence fell within the scope of the motion in limine that the court granted at Varner's request. We find no error.

IV. The Court Did Not Abuse Its Discretion in Rejecting Varner's Proposed Jury Instruction

[34] Varner claims the trial court abused its discretion and denied him the opportunity to present a defense when it refused his proposed jury instruction, which provided:

The continuous crime doctrine is a category of Indiana's prohibition against double jeopardy. It provides that, under such circumstances, a defendant cannot be charged multiple times for the same offense.

App. Vol. III, p. 12.

[35] “A claim of error in instructing a jury is usually reviewed for an abuse of discretion.” Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024). When evaluating the propriety of an instruction, we consider: (1) whether the instruction correctly states the law; (2) if there is evidence in the record supporting the instruction; and (3) whether the substance of the instruction is covered by other instructions. Torrence v. Gamble, 124 N.E.3d 1249, 1251 (Ind. Ct. App. 2019).

[36] We first note that Varner has waived this issue by making bald assertions, without accompanying analysis, that the requirements for admission were met. See App. R. 46(A)(8)(a). Waiver notwithstanding, Varner's claim fails because his proffered instruction misstates the law.

[37] “The continuing crime doctrine essentially provides that actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action to constitute a single transaction.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010). The continuing crime doctrine “reflect[ed] a category of Indiana's prohibition against double jeopardy.” Id. at 736. But Wadle and Powell changed application of the continuing crime doctrine.

[38] The continuing crime doctrine is “the only common-law rule that survived” our Supreme Court's adoption of a new substantive double jeopardy test in Wadle and in its companion decision, Powell v. State, 151 N.E.3d 256 (Ind. 2020). Hill v. State, 157 N.E.3d 1225, 1229 (Ind. Ct. App. 2020). But the continuing crime doctrine exists “only as part of the new [double jeopardy] tests, not as a separately enforceable double-jeopardy standard.’ ” Id.

[39] Although many problems with Varner's proffered instruction exist, we focus on its misstatement of the law. The instruction wrongly suggests the continuing crime doctrine is a stand-alone doctrine applicable to Varner's offenses, contrary to Hill. The trial court therefore did not abuse its discretion in rejecting the instruction.

V. The Evidence of Attempted Aggravated Battery Was Sufficient

[40] Varner claims the State did not prove beyond a reasonable doubt that he committed attempted aggravated battery. We find the evidence sufficient to support his conviction.

[41] Appellate courts reviewing a sufficiency claim consider only the probative evidence and reasonable inferences supporting the verdict without reweighing the evidence or assessing witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id.

[42] For Varner's conviction of attempted aggravated battery to stand, the evidence must show beyond a reasonable doubt that Varner knowingly or intentionally engaged in conduct that constituted a substantial step toward the commission of aggravated battery. See Ind. Code § 35-41-5-1(a). Aggravated battery, in turn, is committed when a person knowingly or intentionally inflicts injury on another person that creates a substantial risk of death or causes “serious permanent disfigurement,” “protracted loss or impairment of the function of a bodily member or organ,” or “the loss of a fetus.” Ind. Code § 35-42-2-1.5. “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).

[43] Varner acknowledges firing the shots from his vehicle while Deputy Clements pursued him. But Varner claims “there is no evidence that establish[es] that [Varner] knowingly or intentionally attempted to inflict injury” on Deputy Clements when Varner fired the shots. Appellant's Amended Br., p. 52. On the contrary, the record shows that Varner, while fleeing Deputy Clements, picked up the weapon that Varner used to kill Brown and fired through the back window of his vehicle. Deputy Clements's vehicle was directly behind Varner's vehicle at the time. The trajectory of the shots was such that Officer Clements heard the “whizzing noise” of bullets moving “very close” to him. Tr. Vol. III, p. 47. This evidence was sufficient to show Varner had the requisite intent to inflict injury on Deputy Clements when Varner fired.

VI. Varner's Habitual Offender Claim Is Without Merit

[44] Varner's final claim concerns the habitual offender proceedings. Varner's exact claim is difficult to determine. He appears to suggest that he was denied the right to counsel or that he received ineffective assistance of counsel because he did not receive notice of the habitual offender allegation until trial. He also appears to challenge the trial court's denial of his motion to continue the habitual offender matter, although he does little to advance that argument.

[45] The foundation for most of these claims is Varner's purported lack of notice of the habitual offender allegation. But as Varner concedes, he received a copy of the habitual offender allegation about a week before he moved to represent himself and five months before his trial. Although Varner did not have an initial hearing until the first day of trial, he had long known of the habitual offender allegation and admittedly waited, for strategic reasons, until after his trial began to challenge the lack of an earlier initial hearing. If he needed to consult his standby counsel about the habitual offender allegation or required more information about it, he could have taken action at any time during the five months between service of the allegation and his trial. We find this claim meritless.

[46] Varner's remaining claim is that he did not waive his right to counsel in the habitual offender proceeding. Varner already had waived his right to counsel before the jury began hearing his case and never requested that standby counsel take over his representation. Varner appears to suggest that after the verdicts, but before the habitual offender proceeding began, the trial court was required to ascertain anew whether he was waiving his right to counsel. But as Varner offers no support for that specific proposition, his claim fails. See App. R. 46(A)(8)(a).

[47] As Varner has failed to establish any grounds for reversal, we affirm the trial court's judgment.²

FOOTNOTES

1.   Varner also challenges the trial court's failure to grant him a continuance or mistrial once it decided at trial to admit limited evidence of the Lake County murder. Varner argues that the court's decision to admit this evidence at trial left him unable to present rebuttal evidence without a continuance or mistrial. But we need not address the merits of this claim because its factual premise is faulty.Varner was well aware before trial that the State intended to introduce evidence of the Lake County murder. He filed motions in limine in an attempt to block that effort, and the trial court conducted contested hearings on those motions. Therefore, Varner knew before trial that the State might present such evidence and could have marshalled any evidence before trial to rebut it. He does not argue that his own neglect justified a continuance or mistrial.

2.   We do not address Varner's remaining arguments because they are frivolous or lack sufficient cogency to allow appellate review.

Weissmann, Judge.

Judges Vaidik and Foley concur. Vaidik, J., and Foley, J., concur.