State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2060

State of Minnesota,
Respondent,

vs.

Limmie Edward Varner,
Appellant.

Filed December 21, 2020
Affirmed
Florey, Judge

Benton County District Court
File No. 05-CR-19-860

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Philip K. Miller, Benton County Attorney, Michael J .G. Schnider, Assistant County
Attorney, Foley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Segal, Chief Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant challenges his conviction for felony domestic assault, arguing that he
received ineffective assistance of counsel based on several statements made by his defense

2
attorney during closing argument that contradic ted appellant’s trial testimony . Because
appellant has not shown that defense counsel’s performance was deficient or prejudicial,
we affirm.
FACTS
Respondent State of Minnesota charged appellant Limmie Edward Varner with two
counts of felony domestic assault. At the bench trial, appellant and victim L.S. testified to
different versions of the incident at issue. According to appellant, L.S. had been drinking
at a party and at some point became “drunk” and needed a ride home; thereafter, L.S.
became “radical” in the car —as was typical when she drank —accusing appellant of
looking at other women, throwing his phone out the window, and repeatedly grabbing the
wheel and forcing the moving car into park. When they arrived home, L.S. threw her purse
at appellant. Appellant tried to get L.S. to go inside but she refused to get out of the car .
Appellant maintains that it was only after they parked in the driveway that he noticed a
“scrape” on L.S.’s face . He was unsure what had happened but thought the injury might
have been caused by the sudden stops that L.S. had caused throughout their drive home.
L.S. testified that she wanted appellant to drive her home from the par ty because
she had a headache. She and appellant argued in the car about leaving the party. During
this argument, appellant punched her in the head and said, “Now you’re going to have a
reason for a headache.” She testified that she had consumed two drinks over the span of
several hours and was not inebriated. L.S. testified that after appellant hit her, she “blacked
out” and could not remember as clearly what happened next. L.S. recalled that once they
got home, appellant was angry and yelled at her to get out of the car. He came around the

3
car, opened the passenger door, grabb ed her purse and dump ed its contents outside , and
then tried to drag her out of the car by pulling on her arm. Eventually appellant “gave up
and left.” L.S.’s neighbor, E.W., called to check on L.S. after observing the fight. E.W.
called the police shortly thereafter.
E.W. testified that she saw the altercation in the driveway from her porch. She saw
appellant “hitting and punching and cho king [L.S.] and trying to pull her out of the car.”
E.W. heard appellant calling L.S. “drunk .” L.S. denied that she was drunk and accused
appellant of being high. E.W. saw appellant throw L.S.’s purse on the ground and order
her to get out of the car. E.W.’s young son also testified that he saw appellant attempt to
pull L.S.’s legs out of the car and heard L.S. yell out for help.
The three responding police officers also testifi ed at trial. Office r Saulter took
photographs of the abrasions on L.S.’s face and took her recorded statement . The state
introduced the photographs as evidence .1 L.S. told the officer that during the drive back
from the party, appellant became angry, accused her of throwing his phone out the window,
and struck her in the face. She also told the officer that, when they got home, she was upset
and refused to get out of the car . Appellant came around to the passenger side of the car
and told her to get out. He then grabbed her purse and threw it out of the car. After L.S.
still refused to get out, appellant got into another car and left. Officer Saulter could not
recall whether there was any evidence of alcohol inside L.S.’s home or whether there was
any odor of alcohol on L.S. But she did not believe L.S. was intoxicated at the time.

1 The state also introduced evidence of appellant’s prior domestic-assault conviction from
an incident several years earlier involving L.S.

4
Officer O’Leary did not recall whether there was any evidence that L.S. had been drinking.
The third responding office —Officer Anderson —took a statement from E.W. that was
generally consistent with E.W.’s trial testimony.
In his closing arguments, defense counsel stated:
I’m not saying that [L.S.] was drunk . In fact, the evidence
wouldn’t support that. There are some consistencies about
how much she had to drink, maybe that it affected her mood
and got her mad at my client because of her thinking that he
was going to cheat on her or something like that.

The district court found appellant guilty of both count s. The district court found
that L.S. was “very direct in her answers, very sincere, [and] very earnest” and observed
that the photographs of her injuries were consistent with her testimony of what had
happened. The district court also found E.W. and her son’s testimony to be “very di rect
and consistent as well.” The court recognized that “there are some inconsistencies, but that
is to be expected in any type of a situation where people recall things differently.” Finally,
the court found appellant’s testimony to be “rambling, nonresponsive, and not credible .”
The court noted that “[i]f you are to believe [appellant’s] version of events he did absolutely
nothing wrong on this day, and all of the blame belongs to [L.S.]. While when [L.S.]
testified it was the good and the bad of her behavior on that day.” This appeal follows.
D E C I S I O N
Appellant asserts that he received ineffective assistance of counsel because defense
counsel’s closing argument purportedly contradicted his trial testimony. “To succeed on
an ineffective assistance of counsel claim, a defendant must show that (1) his attorney’s
performance fell below an objective standard of reasonableness, and (2) a reasonable

5
probability exists that the outcome would have been different, but for counsel’s errors.”
State v. Luby, 904 N.W.2d 453, 457 (Minn. 2007) (quotation omitted); see also Strickland
v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984). A failure
to establish either prong is fatal to an ineffective-assistance-of-counsel claim. Andersen v.
State, 830 N.W.2d 1, 10 (Minn. 2013).
“When defense counsel concedes the defendant ’s guilt without his consent,
counsel’s performance is deficient and prejudice is presumed.” Luby, 904 N.W.2d at 457
(quotation omitted) . “ We apply a two -step analysis to ineffective -assistance claims
involving an alleged unauthorized concession of guilt.” Id. We first conduct a de novo
review of the record “to determine whether defense counsel made a concession of guilt,”
and if so, we then determine whether the defendant “acquiesced in that concession.” Id.
“A concession may be express or implied.” Id. In assessing whether defense
counsel implied a concession of guilt, we consider the challenged statements in the context
of the whole trial. Dukes v. State , 660 N.W.2d 804, 813 (Minn. 2003) . A court should
conclude that defense counsel’s statements constituted an implied concession of guilt “only
where a reasonable person viewing the totality of the circumstances would conclude that
counsel conceded the defendant[’]s guilt.” Torres v. State, 688 N.W.2d 569, 573 (Minn.
2004) (quotation omitted).
In his closing statements, defense counsel argued:
And when we think about [L.S.’s] injuries, they are not
consistent with the second statement whatsoever, and that’ s
really, I think, where the problem lies, is that [E.W.] testified
that my client hit [L.S.] – I think she said 10 to 15 times in the
face.

6
If my client did that to the alleged victim we would have
– the injuries would be much more substantial, and they would
not be isolated to one area, which is much more consistent to
something happening in the car.
So I don’t think her testimony is credible at all. If there
was any sort of grabbing around the neck we would see a sign
of it, kicking, hitting. It does not make sense, especially when
we look at it in light of what the alleged victim said . Nothing
happened. Those don’t make sense.
I’m not saying that she was drunk. In fact, the evidence
wouldn’t support that. There are some consistencies about
how much she had to drink, maybe that it affected her mood
and got her mad at my client because of her thinking that he
was going to cheat on her or something like that.
There is no indication, that I can see, as to why these
stories could be so completely different.

Based on these statements, a ppellant argues that his attorney detrimentally conceded a
material fact —that L.S. was not intoxicated—to which his credibility and therefore his
innocence hinged. Appellant maintains that defense counsel’s statements amounted to an
implied concession of guilt.
Reviewing the challenged statements within the context of the entire closing
argument and the trial as a whole , we conclude that appellant has not shown that his
attorney implicitly conceded his guilt. First, we observe that defense counsel’s statement
that there were “consistencies about how much [L.S.] had to drink” was consistent with the
evidence and did not contr adict appellant’s own testimony. L.S. stated that she had two
cans of spritzers. Appellant also testified that he and L.S. bought two drinks the morning

7
of the incident.2 And as defense counsel argued, these drinks could have “affected [L.S.’s]
mood and got her mad at [appellant] because of her thinking that he was going to cheat on
her.” Defense counsel’s remark regarding the negative impact of alcohol on L.S.’s mood
is consistent with appellant’s testimony that L.S.’s demeanor changed when she drank and
that her behavior on the drive home caused her injuries.
Second, we conclude that counsel’s initial remark —“I’m not saying that she was
drunk. In fact, the e vidence wouldn’t support that.” —viewed in context of the trial as a
whole, does not amount to an implied concession of guilt. See Dukes, 660 N.W.2d at 812
(Minn. 2003) (“[W]e must be cautious in defining an ‘implied admission’ to not allow the
semantics of every questioned word, statement or misstatement of counsel by inadvertence,
negligence or perhaps cleverness to be an automatic ground for a new trial.” ). While this
statement, in isolation, may not have been artfully worded, and perhaps even a
misstatement, the challenged statements do not negate appellant’s purported explanation
that L.S. injured herself during the short drive home due to behavioral is sues caused by
drinking alcohol. There was no implied concession of guilt.
Having concluded that defense counsel did not implicitly concede appellant’s guilt,
we also conclude that appellant has not demonstrated that defense counsel’s performance
here was objectively deficient. See Luby , 904 N.W.2d at 457 (requiring appellant to

2 Appellant further testified that he “really [did]n’t know what she was drinking,” just that
he was sure L.S. was “drunk” because that is the only reaso n he would have driven her
home. This statement by appellant also does not necessarily contradict the two-drinks-
consumed testimony by the other witnesses at trial.

8
establish that defense counsel’s performance fell below an “objective standard of
reasonableness” (quotation omitted)).
Further, appellant has also failed to establish prejudic e because these isolated
statements had no reasonable impact on the outcome of his bench trial. See Strickland, 466
U.S. at 691-92, 104 S. Ct. at 2067. Appellant argues that defense counsel’s statements
conceding that L.S. was not drunk undermined his credibility with the factfinder (here the
district court) because he testified L.S. was “drunk” and because her disorderly behavior
was crucial to hi s version of events . But the district court m ade extensive findings on
witness credibility and, as respondent observes on appeal, “had ample other bases upon
which it assessed credibility.” Moreover, there was significant evidence presented at
trial—beyond the conflicting testimony of L.S. and appel lant—to establish appellant’s
guilt, including two eyewitnesses to a portion of the assault, a history of domestic abuse by
appellant against L.S., and photographs of the injuries consistent with L.S.’s version of
events. In sum, appellant has not met his burden of establishing ineffective assistance of
counsel and is not entitled to a new trial.
Affirmed.