James O. Brown, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] James O. Brown appeals his conviction for Level 1 felony attempted murder, arguing that the trial court erred by not holding a further hearing on his motion to exclude the victim as a witness and by refusing a reasonable-theory-of-innocence jury instruction, and that the evidence is insufficient to prove intent to kill. We affirm.

Facts and Procedural History

[2] On the afternoon of July 3, 2024, semi-truck driver Zangar Barnard was driving north in the center lane on I-65 in Boone County near the Whitestown exit. Traffic was heavy that day because of the holiday. Kendra Johnson-Brown was driving a black car with her husband, Brown, in the passenger seat. Johnson-Brown moved from the right lane to the center lane in front of Barnard and “brake check[ed]” him two or three times, which caused him to slow down. Tr. Vol. 2 p. 234. Johnson-Brown then moved to the left lane, next to Barnard in the center lane, and “slowed down to match [his] speed.” Tr. Vol. 3 p. 17. Brown, who had the passenger window down, looked at Barnard. Barnard smiled at Brown because he didn't know what was going on, but Brown looked “angry” and didn't smile back. Id. at 8. Johnson-Brown then “pulled back in front of” Barnard in the center lane and “brake check[ed]” him two or three more times, causing him to slow down again. Tr. Vol. 2 pp. 240-41.

[3] At the same time, Nathan Justus was driving a semi-truck in the right lane next to Barnard and began to pass him. See Exs. 33, 34. When Justus had almost finished passing Barnard on the right, he honked the “air horn” on his semi-truck. Tr. Vol. 2 p. 242. The black car was still in front of Barnard. “[A]s soon as” Justus honked his horn, Barnard saw Brown stick his arm out of the open passenger window holding a gun, “point[ ] up” “[t]oward [Justus's] semi,” and fire one shot at Justus. Id. at 242-44. The bullet entered the left side of Justus's head. Justus lost control of his semi-truck, causing it to jackknife.

[4] Johnson-Brown then moved into the left lane and kept driving. Neither she nor Brown called 911 or otherwise reported the incident to law enforcement. Justus was taken to the hospital, where he underwent emergency surgery and stayed for over two weeks. He then went to a rehabilitation center to help him with his injuries, which included paralysis of his right side and significant speech issues.

[5] Based on videos from local businesses and license-plate readers, police eventually determined that Brown and Johnson-Brown were the people in the black car. In late July, the police interviewed Brown. During the interview, Brown admitted that his wife was driving and that they were near the semi-truck when it crashed. He also admitted that he had a handgun, which Johnson-Brown bought and he carried from “time to time.” Ex. 75; Ex. 75A p. 228.

[6] The police obtained a warrant to search Brown and Johnson-Brown's home and car. They recovered a handgun (which was later determined to have fired the shot) as well as a cell phone that contained photos of the front and back of Justus's semi-truck from the time of the incident. While in jail, Brown called his son and said he “should've just went [sic] back to the scene” to say it was “self-defense.” Ex. 76; Ex. 76A p. 235.

[7] The State charged Brown with Level 1 felony attempted murder and Level 3 felony aggravated battery and charged Johnson-Brown with the same offenses based on accomplice liability.¹ On July 6, 2025, about a week before the jury trial was set to begin, Brown moved to exclude Justus as a witness, alleging that “a significant question” existed as to his recollection of the events leading up to the shooting and the shooting itself. Appellant's App. Vol. 2 p. 59. Brown requested a hearing be held “outside the presence of the jury to determine if Mr. Justus can recall, based on his own memory, facts relevant to the defendants’ charges.” Id.

[8] At the pretrial conference held the next day, the trial court and the parties discussed Brown's motion. The State argued first, acknowledging that Justus did not remember the shooting itself, which was the basis of Brown's request for a hearing. However, the State claimed that Justus remembered events from earlier the day of the shooting and that he could talk about his injuries and rehabilitation. The court asked Brown's attorney why Justus should be excluded as a witness, and he responded that Justus's testimony would be duplicative of testimony of other witnesses (Justus's wife and the neurosurgeon who performed the surgery) and that his presence would be “extremely prejudicial.” Tr. Vol. 2 p. 32. The State responded that it wouldn't be prejudicial to have the victim testify at trial and that no one else would be able to testify about what happened earlier the day of the shooting. The court asked Brown's attorney if he had any “final comments,” and he said no. Id. at 33. The court took the issue under advisement and later issued an order denying Brown's motion to exclude. See Appellant's App. Vol. 2 pp. 63-64.

[9] A joint jury trial for Brown and Johnson-Brown began on July 14. Before Justus took the stand to testify, Brown renewed his motion to exclude: “[W]e're just gonna renew our request to exclude Mr. Justus for the record[,] incorporate our argument we made at the pretrial[,] and then end in our motion.” Tr. Vol. 3 p. 35. The State responded that it was resting on its earlier arguments. The trial court denied the motion. Justus then briefly testified about his age, what trucking company he worked for at the time of the shooting, that he started his truck route that day in Georgia, and that he was transporting a vehicle on his truck. He said his last memory was driving in Georgia and that he didn't remember driving in Indiana or the shooting itself. His next memory was from the rehabilitation center that he went to after he was released from the hospital. Justus identified where he was shot in the head and said he had undergone three surgeries. He explained that he was initially paralyzed and that it took him six months to learn how to walk again. He further explained that he could not talk at first and had to use hand signals to communicate but that his speech had improved. Justus largely testified by answering “yes” and “no” but also spoke in some short phrases.

[10] After the State's case-in-chief, Johnson-Brown moved for judgment on the evidence for both charges against her. The trial court granted it as to the attempted-murder charge only. The defense rested without presenting any evidence. Brown requested the following jury instruction:

In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.

Appellant's App. Vol. 2 p. 65. The State argued that this instruction only applies when the evidence is circumstantial and that because this case is “very much a direct evidence case,” the trial court should not give it. Tr. Vol. 4 p. 42. The court agreed and declined to give it.

[11] The jury found Brown guilty of Level 1 felony attempted murder and Level 3 felony aggravated battery, but the trial court entered judgment of conviction only for attempted murder based on double-jeopardy concerns and sentenced him to 30 years, with 20 years executed, 10 years suspended, and 5 years of probation. The jury found Johnson-Brown guilty of Level 3 felony aggravated battery, and the trial court sentenced her to 8 years, with 5 years executed and 3 years suspended to probation.²

[12] Brown now appeals.

I. Brown has waived his argument that the trial court should have held a further hearing on his motion to exclude Justus as a witness

[13] Brown contends that “[t]he trial court should have held a hearing outside the presence of the jury to determine if [Justus] was a competent witness, and its failure to do so is reversible error.” Appellant's Br. p. 14. Indiana Evidence Rule 601 provides that “[e]very person is competent to be a witness except as otherwise provided in these rules or by statute.” “When competency to testify is placed in issue, it is the trial court's duty to schedule a hearing to determine whether the witness is in fact competent to testify.” Hughes v. State, 546 N.E.2d 1203, 1209 (Ind. 1989). A trial court's competency determination is reviewed for an abuse of discretion. Id.

[14] As the State points out, the trial court heard arguments on Brown's motion to exclude at the pretrial conference. In his written motion, Brown had requested a hearing to determine if Justus could “recall, based on his own memory, facts relevant to the defendants’ charges.” At the pretrial conference, the State acknowledged that Justus did not remember the shooting itself—the very fact Brown's motion sought to establish—but explained that he could still testify about other matters. Because Justus's lack of memory of the shooting was undisputed, no further proceeding was needed to determine it. If Brown thought that a different or further hearing was needed before the court ruled, he had to say so—then or at trial. Instead, at trial Brown simply renewed his request to exclude Justus, resting on his earlier arguments. Brown has thus waived review of his argument that the trial court should have held a further hearing. In limited circumstances, a defendant can seek review of a waived issue for fundamental error. But Brown has not argued fundamental error on appeal, and so review of this issue is waived as well. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding that where appellant “failed to raise the issue of fundamental error in his initial appellate brief[,]” such a claim was “entirely waived”). We therefore affirm the trial court on this issue.³

II. The trial court did not err in declining to give a reasonable-theory-of-innocence instruction

[15] Brown next contends that the trial court should have given his proposed jury instruction on reasonable theory of innocence. The trial court has broad discretion as to how to instruct the jury, and we generally review such a decision only for an abuse of that discretion. Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012).

[16] In Hampton v. State, the Indiana Supreme Court held that a reasonable-theory-of-innocence instruction is given “only where the trial court finds that the evidence showing that the conduct of the defendant constituting the commission of a charged offense, the actus reus, is proven exclusively by circumstantial evidence.” 961 N.E.2d 480, 490 (Ind. 2012). Here, Brown acknowledges that there was direct evidence of the actus reus. Nevertheless, he argues that defendants should be entitled to a reasonable-theory-of-innocence instruction when there is direct evidence as to the actus reus but only circumstantial evidence as to the mens rea. But as our Supreme Court explained in Hampton, “the mens rea element for a criminal offense is almost inevitably, absent a defendant's confession or admission, a matter of circumstantial proof.” Id. at 487. “Thus, requiring jurors to consider the possible existence of an alternate reasonable theory of innocence whenever proof of the mens rea element is circumstantial would lead to use of the instruction in most all criminal cases.” Id. The Court recognized that such a result could create unnecessary confusion and declined to extend the rule to cases where there is circumstantial evidence as to mens rea. Id. at 487-91. The trial court did not abuse its discretion by following our Supreme Court's precedent and declining to give a reasonable-theory-of-innocence instruction here.

III. The evidence is sufficient to support Brown's attempted-murder conviction

[17] Finally, Brown contends that the evidence is insufficient to support his conviction for Level 1 felony attempted murder. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will consider only the evidence supporting the conviction and any reasonable inferences that can be drawn from the evidence. Id. A conviction will be affirmed if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

[18] To convict Brown of attempted murder as charged here, the State had to prove that Brown, with the specific intent to kill Justus, engaged in conduct that constituted a substantial step toward such killing. Appellant's App. Vol. 2 p. 53; Ind. Code §§ 35-42-1-1(1), 35-41-5-1(a); Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991). The only element that Brown challenges on appeal is intent to kill. “Intent to kill may be inferred from the intentional use of a deadly weapon in a manner likely to cause death or great bodily injury.” Schuler v. State, 112 N.E.3d 180, 188 (Ind. 2018). “Moreover, discharging a weapon in the direction of a victim is substantial evidence from which the jury could infer intent to kill.” Dorsey v. State, 262 N.E.3d 181, 187 (Ind. Ct. App. 2025) (quotation omitted), trans. denied.

[19] Here, the evidence shows that Brown extended his arm out of the open car window holding a gun, pointed the gun up at Justus's semi-truck, and shot Justus in the head. This evidence is sufficient to prove that Brown acted with the specific intent to kill Justus. Kiefer v. State, 761 N.E.2d 802 (Ind. 2002), on which Brown relies, is readily distinguishable. There, our Supreme Court reversed an attempted-murder conviction because the evidence showed that the defendant fired his gun in the direction of a 14-year-old boy, who was walking by his house about 30 feet away and wasn't hit, to scare him. Brown, by contrast, did not merely fire in Justus's direction; he shot Justus in the head—a vital area—from which the jury could readily infer that he intended to kill. Brown's other arguments, such as that there was no evidence that he knew Justus before the incident, that he fired only one shot and did not pursue him, and that there was no clear evidence of motive, amount to requests for us to reweigh the evidence, which we don't do. We therefore affirm Brown's conviction for attempted murder.

[20] Affirmed.

FOOTNOTES

1.   The State filed additional charges against Brown but dismissed them before trial.

2.   Johnson-Brown appealed her conviction, and we recently affirmed. See Johnson-Brown v. State, No. 25A-CR-2554, 2026 WL 1243541 (Ind. Ct. App. May 6, 2026).

3.   To the extent Brown separately argues that the trial court erred by admitting Justus's testimony because its probative value was substantially outweighed by the danger of unfair prejudice, see Ind. Evidence Rule 403, we find no abuse of discretion. Although Justus did not remember the shooting, he gave other relevant testimony—about his employment and route that day, his injuries and recovery, and where he was shot. There is no doubt Justus's injuries and recovery were sympathetic, but that did not make his testimony unfairly prejudicial: they resulted from his being shot in the head, a fact of which the jury was already well aware.

Vaidik, Judge.

Altice, J., and Foley, J., concur.