State of Indiana, Appellant-Plaintiff v. Varian Dennis Foster, Appellee-Defendant (2026)

MEMORANDUM DECISION

[1] The State of Indiana appeals the trial court's discovery sanction—exclusion of evidence—in its prosecution of Varian Dennis Foster on the charge of battery by means of a deadly weapon as a level 5 felony. The State asserts that the court abused its discretion. We reverse and remand.

Facts and Procedural History

[2] On December 17, 2024, Indianapolis Metropolitan Police officers were dispatched to an apartment on North Edmondson Avenue on a report of shots fired. Officers were informed that a male had been shot in an apartment but had jumped off the balcony and fled in a vehicle. Officers entered the apartment and located a female, C.S., inside the apartment. Officers observed blood “all over the walls and floors” and located a “fired cartridge and a firearm on the balcony.” Appellant's Appendix Volume II at 18.

[3] Officers subsequently located R.M. at Community North Hospital receiving medical treatment for a gunshot wound “to the back and left arm.” Id. R.M. reported that he was at C.S.’s apartment when another male entered, demanded R.M.’s money, and shot him. The two men struggled, R.M. was able to disarm the male, and the male left the apartment. R.M. did not know the shooter's identity.

[4] Police interviewed numerous witnesses at the apartment complex, none of whom could identify the shooter. One of the officers observed a vehicle in the parking lot with its taillights on and “ran the plate, which came back to [Foster].” Id. at 20. In February 2025, officers obtained Foster's cellphone records which placed Foster's cellphone in the area of the shooting when it occurred. In August 2025, the Combined DNA Index System (“CODIS”) matched Foster's DNA profile with the DNA profile recovered from the gun found at the scene.

[5] On August 25, 2025, the State charged Foster with battery by means of a deadly weapon as a level 5 felony based upon shooting R.M. On September 22, 2025, the State provided substantial discovery to Foster's counsel. At pretrial conferences held on October 7 and November 6, 2025, the State noted that it was still waiting on confirmatory DNA testing. On November 20, 2025, Foster requested an early trial. The trial court set the early trial deadline for January 29, 2026, and scheduled a jury trial for January 27, 2026. A final pretrial conference was held on December 30, 2025. On January 8, 2026, the State filed a notice of supplemental discovery compliance regarding the DNA analysis, more specifically a lab report containing “CODIS CONFIRMATION” that was completed on October 15, 2025. Id. at 76. On January 20, 2026, the State filed a notice of supplemental discovery compliance which included the “AUDIO STATEMENT” of Foster's custodial police interrogation conducted on September 2, 2025. Id. at 81.¹ On January 21, 2026, Foster filed an emergency motion to exclude evidence and request for hearing. The State filed a response indicating that the late disclosure was unintentional, that it acted in good faith to comply with the court's discovery order, and that the defense suffered no prejudice due to the late disclosure. On January 23, 2026, the trial court held a hearing, after which the court granted the motion to exclude. The State filed a motion to reconsider that same date, and the trial court entered a written order denying the motion on January 26, 2026. Thereafter, the State dismissed the charge against Foster and, on January 27, 2026, filed a notice of appeal.²

Discussion

[6] The State asserts that the trial court abused its discretion by excluding the State's evidence as a discovery sanction for its late disclosure of two items of evidence. A trial court has broad discretion to manage discovery, and we presume the court acted fairly and equitably. Luckett v. State, 223 N.E.3d 1170, 1176 (Ind. Ct. App. 2023). This court will reverse a trial court's ruling on late disclosed evidence only where the trial court has committed clear error resulting in prejudice. Id.

[7] The Indiana Supreme Court has explained:

Trial Rule 37 authorizes courts to impose sanctions for discovery violations through “such orders in regard to the failure as are just,” Ind. Trial Rule 37(B)(2), including orders prohibiting a party “from introducing designated matters in evidence,” T.R. 37(B)(2)(b); see also Fields v. State, 679 N.E.2d 1315, 1319 (Ind. 1997). For sanctions addressing a party's late disclosure of evidence, our cases have long recognized three governing principles: (1) we generally treat late disclosures the same whether the State or the defendant committed the discovery violation; (2) the two typical remedies are to continue the trial or to exclude the evidence; and (3) we exclude evidence only if (a) that is the sole remedy available to avoid substantial unfair prejudice, or (b) the discovery violation was intentional, flagrant, in bad faith, or otherwise reprehensible. Wiseheart v. State, 491 N.E.2d 985, 988-92 (Ind. 1986); see also Armstrong v. State, 499 N.E.2d 189, 191 (Ind. 1986) (discussing the exclusion of evidence for discovery violations which are “flagrant and deliberate,” “misleading,” or in “bad faith”); Thompson v. State, 492 N.E.2d 264, 274 (Ind. 1986) (discussing violations which are “grossly misleading” or “demonstrate[ ] bad faith”).

State v. Lyons, 211 N.E.3d 500, 505-506 (Ind. 2023) (footnotes omitted). “Courts exclude evidence only as a last resort because that remedy frustrates a trial's truth-seeking function.” Id. at 506. Thus, “[w]hile sanctions for failure to comply with discovery are within the trial court's discretion, the primary factors which a trial court should examine are whether the breach was intentional or in bad faith and whether substantial prejudice has resulted.” Id. (quoting Wiseheart, 491 N.E.2d at 988).

[8] Here, the record reveals that the deputy prosecutor alerted both defense counsel and the court immediately when he became aware of the evidence at issue. During the brief hearing on the motion to exclude, the prosecutor explained that the “CODIS hit” on Foster's DNA did not occur until late August 2025, and that the confirmatory DNA test, although completed in October, was not obtained by the prosecutor until January 8, 2026. Transcript Volume II at 12. He explained that the State simply “did not get notification that it was completed.” Id. at 15. As for Foster's recorded statement, the prosecutor stated that he was not made aware of the statement until he “was prepping” one of the police detectives for trial and that he provided it to defense counsel “the same day [he] learned of its existence.” Id. at 13-14. He stated, “I couldn't tell you for an exact reason why that was not initially sent over to us.” Id. Foster did not argue that the State acted intentionally, flagrantly, or in bad faith, conceding that there was not “enough information to know whether it was intentional.” Id. at 10. Significantly, the trial court did not find that the State acted intentionally, flagrantly, or in bad faith; rather, the court simply concluded that the State failed to provide “any reasonable excuse for its failure to timely turn over” the evidence. Appellant's Appendix Volume II at 97. This is not the same as a flagrant and deliberate refusal to comply with the court's discovery order. We cannot say that there was any evidence or reasonable inferences to be drawn therefrom that would indicate that the State's discovery violation was intentional or demonstrative of bad faith.

[9] As for whether the delayed disclosure of the evidence created a substantial risk of unfair prejudice, our thoughts are two-fold. Regarding the DNA confirmation test results, the record indicates that defense counsel was informed during pretrial conferences that such testing was in process, that the results were pending, and the results would be forthcoming. Moreover, the results confirmed the CODIS DNA match of which defense counsel was already aware and, although late, defense counsel received the confirmation results almost three weeks before trial. Under the circumstances, we cannot say that Foster was substantially and unfairly prejudiced by the delayed disclosure of the DNA confirmation test results.

[10] Regarding the disclosure of the audio from Foster's hour-long police interview, we agree with the State that, “as the subject of the interview, Foster would have been uniquely aware of the interview's existence and contents.” Appellant's Brief at 14. However, we are mindful that Foster's knowledge of the existence of the evidence and his counsel's timely acquisition of such evidence through discovery so as to avoid prejudice in his trial preparation and strategy are different things. Indeed, the prosecutor admitted during the exclusion hearing that the interview “could potentially change the [de]fendant's strategy.” Transcript Volume II at 14. Thus, we agree with Foster that, in light of his quickly approaching trial date, the late disclosure created a substantial risk of unfair prejudice.

[11] Even so, it is well settled that a trial court should exclude evidence only if that is the “sole remedy” available to avoid substantial unfair prejudice. Lyons, 211 N.E.3d at 506. In this case, continuance of trial was an available remedy despite Foster's early trial request. Pursuant to Criminal Rule 4(B), a trial must commence “no later than seventy calendar days” from the date of the defendant's early trial request unless the defendant “is released from jail before the expiration of the seventy-day period.” Ind. Criminal Rule 4(B)(2); Williams v. State, 631 N.E.2d 485, 486 (Ind. 1994) (observing “[t]he purpose served by [Ind. Criminal Rule 4(B)] is to prevent a defendant from being detained in jail for more than 70 days after requesting an early trial”). Accordingly, rather than excluding the evidence, to remedy any potential prejudice from the late disclosed evidence, the trial court could have released Foster from custody and continued the trial.³ See Lyons, 211 N.E.3d at 506 (holding that any prejudice from the State's discovery violation was cured by releasing the defendant from custody and continuing the trial). The trial court's exclusion of evidence in this case, when it was not the sole available remedy, “frustrates the trial's truth-seeking function.” See id.

[12] In sum, the record before us does not establish that the State's late disclosure of evidence was intentional, flagrant, in bad faith, or otherwise reprehensible conduct for which exclusion was the sole remedy available. Accordingly, we find that the trial court abused its discretion and committed clear error when it excluded the evidence.

[13] For the foregoing reasons, we reverse the trial court's order excluding the State's evidence as a discovery sanction and remand for further proceedings.

[14] Reversed and remanded.

FOOTNOTES

1.   The record indicates that, on January 16, 2026, the State provided a notice of supplemental discovery compliance regarding medical records that are not at issue in this appeal.

2.   The State appeals the trial court's order as a matter of right pursuant to Ind. Code § 35-38-4-2(a)(5) which provides that the State may appeal “an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution of one (1) or more counts of an information or indictment.” Both parties agree that exclusion of the DNA confirmatory test precludes further prosecution of Foster and thus, the court's exclusion order is appealable as a matter of right. See State v. Tyree, 237 N.E.3d 685, 690-691 (Ind. Ct. App. 2024) (holding that Ind Code § 35-38-4-2(a)(5) authorizes the State to appeal a trial court's decision to exclude evidence as a discovery sanction if the ultimate effect of the order is to preclude further prosecution), trans. denied.

3.   As observed by the State, in its denial of the State's motion to reconsider, the trial court cited its preference not to release Foster from custody “on his own recognizance while this cause is pending” as one of its reasons for excluding the evidence rather than releasing him and granting a continuance. Appellant's Appendix Volume II at 97. However, “[i]ronically, by excluding the State's evidence, the trial court forced the State to dismiss the case, which lead [sic] to Foster's release from custody.” Appellant's Brief at 16.

Brown, Judge.

Bailey, J., and Weissmann, J., concur