Murder charge dismissed against Phoenix man in son's death

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Kansas Lavarnia is no longer facing a first-degree murder charge. (Source: Maricopa County Sheriff's Office) Kansas Lavarnia is no longer facing a first-degree murder charge. (Source: Maricopa County Sheriff's Office)
Kansas Lavarnia, left, and Wendy Lavarnia, right. (Source: Maricopa County Sheriff's Office) Kansas Lavarnia, left, and Wendy Lavarnia, right. (Source: Maricopa County Sheriff's Office)
Kansas Lavarnia. (Source: Maricopa County Sheriff's Office) Kansas Lavarnia. (Source: Maricopa County Sheriff's Office)
Wendy Lavarnia, 28 (Source: Maricopa County Sheriff's Office) Wendy Lavarnia, 28 (Source: Maricopa County Sheriff's Office)
PHOENIX (AP) -

A murder charge against a Phoenix man in the shooting death of his 9-year-old son earlier this year has been dismissed at the request of prosecutors.

The county prosecutor's office said Tuesday that it concluded it could not prove all the elements of the first-degree murder charge against Kansas Lavarnia in the March 20 death of his son Landen. The charge was dismissed six weeks ago, but prosecutors have the option of charging Lavarnia, 31, again.

His wife, Wendy Lavarnia, told police that her 2-year-old son found a gun left on a bed and accidentally shot his older brother in the head while the children were playing video games. The couple was arrested in the boy's death after police said they found inconsistencies in the mother's account of the shooting.

[ORIGINAL STORY: Parents of 9-year-old shot in head arrested; boy later died]

Investigators also became suspicious when Kansas Lavarnia showed up at the home with a crudely bandaged gunshot wound on his arm. It looked to have been punctured multiple times, possibly with a screwdriver, to camouflage the injury, authorities said.

In the past, authorities have declined to say who they believed was responsible for shooting the boy and his father. But Kansas Lavarnia's attorney said in court records a month ago that the theory pushed by prosecutors is that Wendy Lavarnia shot her son and husband.

[READ MORE: Parents of 9-year-old boy fatally shot now face first-degree murder charges]

The 29-year-old told authorities that her husband was out shopping at the time of the shooting. He showed up at the family's home after police had arrived.

Clare Schum, an attorney for Wendy Lavarnia, said in an email that her client denies firing the gun and that prosecutors have not disclosed evidence or witness statements to her to support the theory that she did.

[READ MORE: Parents accused of murder in 9-year-old's shooting death plead not guilty]

Amanda Jacinto, a spokesperson for the Maricopa County Attorney's Office, declined to comment on the state's theory of the case.

Wendy Lavarnia faces charges of murder, child abuse and hindering prosecution. Her husband still faces charges of child abuse and hindering prosecution. The couple has pleaded not guilty.

Jacinto said in an email that the murder charge against Kansas Lavarnia was dismissed in mid-October after prosecutors investigated further and reviewed the victim's autopsy and then determined they would not be able to prove all the elements of the crime beyond a reasonable doubt.

His attorney, Jamie Jackson, didn't immediately return a phone call and email seeking comment Tuesday.

[RELATED: 'My son got shot in the head!' 911 call released in shooting of Phoenix boy]

Authorities said the parents delayed calling 911 for medical care for their son so they could clean up evidence in the house. They say the lack of visible blood and the extent of blood residue implied that a significant amount of time had passed before the mother called 911. Prosecutors say evidence of blood was found in the trunk of the vehicle that Kansas Lavarnia drove to his home.

Kansas Lavarnia's lawyer cited the dismissal of the murder charge when he asked a judge to lower his client's $1 million bond to $25,000.

[READ MORE: Phoenix man charged in son's shooting death seeks lower bond]

Trial for the couple has been postponed, and no new date has been set.

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