“to fire a deadly weapon at point blank range is to be ‘aware of a high probability’ that death will result”
How later courts described this case
- “to fire a deadly weapon at point blank range is to be ‘aware of a high probability’ that death will result”
Written by the judges who cited it.
The opinion
FILED
Oct 26 2023, 8:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ann M. Sutton Theodore E. Rokita
Marion County Public Defender Agency Indiana Attorney General
Indianapolis, Indiana Indianapolis, Indiana
Tyler Banks
Supervising Deputy Attorney
General
Indianapolis, Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Dane Brown, October 26, 2023
Appellant-Defendant, Court of Appeals Case No.
22A-CR-01241
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Stoner,
Appellee-Plaintiff Judge
Trial Court Cause No.
49D32-1708-MR-028177
Opinion by Judge May
Judges Weissmann and Foley concur.
May, Judge.
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 1 of 21
[1] Jason Dane Brown appeals his conviction of murder. 1 He presents two issues
for our review, which we expand and restate as:
1. Whether Brown’s right to due process was violated when the
State did not preserve a blood sample collected shortly after
Brown shot Lieutenant Aaron Allan;
2. Whether the trial court abused its discretion when it admitted
urinalysis results from a sample collected shortly after Brown
shot Lieutenant Allan; and
3. Whether the State presented sufficient evidence that Brown
knowingly or intentionally killed Lieutenant Allan.
We affirm.
Facts and Procedural History 2
[2] On July 27, 2017, at approximately 2:30 p.m., Brown and Hassan London
were in a vehicle traveling at a high rate of speed on Madison Avenue in
Indianapolis. Brown, who was driving, made a sudden lane change, swerved to
the right, overcorrected, and ran into the curb. Upon impact with the curb, the
vehicle bounced off the curb, slid across the road, hit the median strip between
1
Ind. Code § 35-42-1-1(1).
2
We held oral argument on this case on September 19, 2023, at Southeast Fountain Elementary School for
an audience of students from Fountain Central High School, Seeger Memorial High School, and Attica High
School. We thank counsel for their able presentations, and we thank the school administration and program
organizers for their hospitality.
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 2 of 21
the north and south lanes of Madison Avenue, and then started to roll. The
vehicle “[e]nded up on the front lawn [of a house] upside down[.]” (Tr. Vol. VI
at 126.) After the car came to a stop in the front lawn, London exited the car,
seemingly uninjured, though he was “disoriented.” (Id. at 97.) There was
extensive damage to the property where the car stopped, and the property
owner asked London, “what were you thinking?” to which London replied,
“we were just getting high and driving fast.” (Id. at 101-2.) The property owner
noticed Brown was still in the vehicle, upside down, and suspended by his
seatbelt. The property owner called 911.
[3] Shortly after the crash, Michele Strack, a nurse passing by, approached the
overturned vehicle to render aid and observed Brown suspended upside down
in the vehicle. He appeared to be unconscious. Strack felt for a pulse and lifted
Brown’s chin to ensure he was breathing. Another nurse who was passing by at
the time of the accident, Angela Cook, also stopped to help. Cook did not
observe any injuries on Brown but did not move him because he may have
sustained a neck injury. She noticed Brown was “reaching for things, or
fidgeting with things” on the roof of the vehicle that had fallen out of his
pockets. (Id. at 213.)
[4] Shortly thereafter, Major Charles Bowman of the Homecroft Police
Department and Lieutenant Allan of the Southport Police Department
responded to a report of a car accident on Madison Avenue in Indianapolis.
When they arrived, Lieutenant Allan got down on his knees and crawled
toward the passenger side of the vehicle. He spoke to Brown, who was still
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 3 of 21
agitated and fidgety. Lieutenant Allan asked Brown if he knew what happened
and if he knew what day it was. Brown mumbled in response and gave
Lieutenant Allan his driver’s license. Brown continued to move around.
Lieutenant Allan asked him to stop moving around and explained that medical
personnel were worried about a neck injury. Brown told Lieutenant Allan his
name was “Jason.” (State’s Ex. 148 at 0:42.)
[5] Lieutenant Allan continued to try to calm Brown and reminded him to stay still
while medical personnel were determining Brown’s condition. Suddenly,
Brown yelled “fuck you” and said “give me the fucking gun.” (Id. at 1:09 - :11.)
Lieutenant Allan backed out of the car and told Brown to stop. Brown again
yelled profanities at Lieutenant Allan and began touching his own clothing.
Lieutenant Allan looked back into the car and yelled, “he’s trying to grab
something out of his pocket.” (Id. at 1:20.) Lieutenant Allan told Brown to
stop. Brown pulled a firearm from the back of his waistband, lifted the firearm,
and shot Lieutenant Allan until the firearm ran out of ammunition.
[6] Officer Kevin Conjelko of the Johnson County Sheriff’s Department was off
duty, but stopped at the scene when he passed by shortly after the accident
occurred. While helping others on scene, Officer Conjelko heard gunfire. He
immediately dropped to his knees, pointed his firearm at Brown, and shot six
rounds in Brown’s direction. Officer Conjelko returned to his vehicle, reloaded
his gun, and fired two more shots toward Brown. Chief John Ryan of the
Homecroft Police Department, who was also on the scene, fired two shots
toward Brown as well.
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 4 of 21
[7] When the gunfire stopped, Strack observed a person “down in the grass . . .
someone laying on their back.” (Tr. Vol. V at 65.) She said, “we’ve got
someone down” and officers went to the person on the ground. (Id.) One of
the officers said, “Allan is down.” (Id.) Officer Conjelko attempted to speak to
Lieutenant Allan, who was unresponsive. Officer Conjelko then rolled
Lieutenant Allan over and “just saw massive trauma everywhere.” (Id. at 140.)
He saw “multiple entry wounds, exit wounds . . . [that were] no longer
bleeding.” (Id.) Shortly thereafter, medical personnel took Lieutenant Allan to
the hospital. Lieutenant Allan died later that day from gunshot wounds to his
right forearm, right upper arm, right knee, right lateral chest, right lower
abdomen, right buttock, central lower abdomen, left forearm, left side, and left
medial thigh. The autopsy indicated the shot through the left side was likely
fatal because it struck Lieutenant Allan’s heart.
[8] After medical personnel removed Lieutenant Allan from the scene, Officer
Christopher Hemphill of the Homecroft Police Department arrived in response
to the Code One 3 radio call. He learned from another officer, who still had his
gun drawn, that Brown shot Lieutenant Allan. Officer Hemphill looked inside
the vehicle where he saw Brown and the gun, which had “the slide locked
back.” 4 (Tr. Vol. VI at 29.)
3
“Code One” is a radio call that indicates “there is an officer that’s down.” (Tr. Vol. VI at 83.)
4
When the slide locks back, it indicates the firearm is “empty.” (Tr. Vol. VI at 30.)
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 5 of 21
[9] Officer Hemphill approached Brown, who was still hanging by his seatbelt in
the overturned vehicle. He told Brown he was going to remove him from the
vehicle so Brown needed to put his hands outside the car. He then told Brown
“Don’t move. If you move, make any sudden movements towards the gun,
you’re going to get shot.” (Id.) Brown complied with Officer Hemphill’s
directions. Officer Hemphill cut the seatbelt. Another officer dragged Brown
toward the back of the car, searched him, handcuffed him, and then allowed
medics to treat him.
[10] Paramedics transported Brown in an ambulance to Eskenazi Hospital. En
route, Brown began to “moan and groan and talk.” (Id. at 62.) He was able to
give paramedics his name and indicated he “knew what happened.” (Id.) At
some point after Brown arrived at the hospital, medical personnel took a blood
sample and a urine sample as part of his care. Brown sustained gunshot
wounds to his left forearm, right neck, right cheek, nose, and the top of his
head.
[11] The Indianapolis Metropolitan Police Department assigned Detective Mark
Prater to investigate the case. He immediately applied for and was granted
search warrants for Brown’s vehicle, the crime scene, and Brown’s clothing. In
the vehicle, Officer Christine Hagan of the Indianapolis Metropolitan Police
Department, who was assisting Detective Prater with the investigation, found
eighteen spent bullet cartridges along with a nine-millimeter handgun with the
“slide . . . in the locked back position . . . [and there] was no unfired cartridge in
the chamber, and the magazine was empty.” (Tr. Vol. V at 212.) She also Court
of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 6 of 21
found a “potential quart-size Ziplock [sic] baggy [sic] that contained smaller
bags with possible marijuana in them” and a scale in the vehicle. (Id. at 211.)
[12] Detective Prater did not request a blood sample at the time of his initial
investigation because “[t]here was no information that would warrant us getting
a blood draw at that time.” (Tr. Vol. VI at 147.) However, after consulting
with the Marion County Prosecutor’s Office, “the decision was made to try to
obtain a blood sample” from Brown on the day of the crime. (Id.) On August
15, 2017, after obtaining a search warrant for Brown’s blood sample, Detective
Prater attempted to obtain the blood sample taken from Brown at Eskenazi
Hospital shortly after the crime. A representative of Eskenazi Hospital
indicated the blood sample had been destroyed, but Brown’s urine sample,
which was collected at about the same time, was still available. After obtaining
an additional search warrant for the urine sample, Detective Prater collected the
urine sample on August 15, 2017, and sent it to a laboratory for analysis.
Brown’s urine sample tested positive for THC; cocaine; two different types of
“spice,” a synthetic cannabinoid; and hydromorphone, which was likely present
because of the opioid pain medication Brown was given in the hospital.
[13] On August 1, 2017, the State charged Brown with murder and Class A
misdemeanor possession of marijuana. 5 On September 28, 2017, the State filed
notice of its intent to pursue the death penalty. On May 24, 2021, Brown filed a
5
Ind. Code § 35-48-4-11(b).
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 7 of 21
motion to exclude the results of the toxicology report. He argued toxicology
results from a urinalysis are not relevant under Indiana Evidence Rule 401
“because impairment or intoxication cannot be inferred from the results of a
urine screen.” (App. Vol. IX at 131.) Additionally, Brown asserted the results
should be excluded “because the State has failed to properly preserve the urine
sample, the defense is unable to perform any of its own testing on the sample.”
(Id.) The State filed its response, and then the trial court held a hearing on
Brown’s motion on August 11, 2021.
[14] On December 3, 2021, Brown entered an agreement with the State in which he
would waive his right to a jury trial in exchange for dismissal of the State’s
request for the death penalty. On January 3, 2022, the trial court denied
Brown’s motion to exclude the toxicology results. Brown’s bench trial
commenced on February 1, 2022. After the State’s case in chief, Brown moved
for an involuntary dismissal of the murder charge and, in the alternative, Brown
asked for dismissal of the possibility of a sentence of life without parole because
the State had not “proven murder or the aggravating circumstance required for
the life without parole sentence request.” (Tr. Vol. VII at 207.) Brown argued
the State did not prove Brown acted knowingly or intentionally as required for a
conviction of murder. Additionally, Brown argued that, if the trial court
determined Brown committed murder, the State did not prove the aggravating
circumstance that Brown “knew Lieutenant Allan was a police officer at the
time of the shooting.” (Id. at 208.)
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 8 of 21
[15] The trial court agreed the State had not proven Brown knew Lieutenant Allan
was a police officer and, therefore, it dismissed the possibility of Brown
receiving a sentence of life without parole. On February 22, 2022, the trial
court found Brown guilty as charged. In doing so, the trial court recounted the
elements of murder and acknowledged Brown’s defenses thereto:
The evidence of the shooting and the identity of the shooter is
overwhelming and uncontradicted. This is not a case based on
circumstantial evidence alone where the State must exclude every
reasonable hypothesis of innocence. The State does not require –
the law does not require the State to prove motive. It’s always
helpful, highly relevant but not necessary, because we know
almost by definition the crime itself is an irrational act not based
on logic and people commit criminal offensesfor [sic] the most
illogical and even stupidest of reasons.
[I]n similar fashion, the State does not have to prove
premeditation for murder, a planned out thought for reason,
because again, we [sic] know people do some of the most
dangerous and violent acts within seconds without significant
consideration of the likely consequences.
This also is not a case where the State must prove the
Defendant’s intoxication beyond a reasonable doubt. This is not
a crime, unlike operating a motor vehicle under the influence of
liquor causing death, where intoxication is an element of the
offense. If it were, the State’s failure to obtain and preserve the
Defendant’s blood sample would have crippled the case. While
the State has argued vigorously its theory of the case with an
emphasis on the Defendant’s drug use and/or the Defendant’s
reaction to a potential drug withdrawal, the Court is not required
to accept or even agree with that premise. The elements are
simple, did the Defendant knowingly kill Lieutenant Allen [sic].
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 9 of 21
The sole issue is the knowingly element. Normally, shooting at
someone 18 times, hitting them 11 times would satisfy the
element.
More specifically, the issue here is whether the Defendant, based
on a medical condition, lacked the mens rea to be held
responsible under the law. While not a statutory defense
specifically delineated by the legislature like insanity, it is similar.
Yes, I did this, but I am not legally responsible for it.
The defense has relied primarily on an expert witness, Dr.
[Pamela] Blake, who admittedly is not an expert in the field most
at issue. She is not an epileptologist. And while her knowledge
of epilepsy is impressive, her actual experience with epilepsy
patients is extremely limited. She changed her original theory of
causation given under oath in a substantial way when she had an
ample opportunity to observe the fallacy of her own conclusion
and correct it.
Her second causation theory rested primarily on the truthfulness
and credibility of the Defendant’s passenger, Hassan London,
not from his actual trial testimony but from his previous sworn
and unsworn statements. This court personally observed
London’s testimony under oath and found him to be of all of the
witnesses in this case totally unreliable, evasive, self-serving and
unworthy of belief. London refused to answer the simplest of
questions despite having use immunity and the benefit of
appointed counsel. Dr. Blake’s opinion also accepted those parts
of London’s statements which fit her theory of the case and
ignored statements which did not, his excited utterance that we
were getting high and driving fast and the Defendant previously
drove fast, as London described it, like a Nascar driver. Any
expert opinion based upon London’s evidence is not reliable in
the court’s view. Dr. Blake also accepted at face value without
any medical documentation or substantiation the Defendant’s
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 10 of 21
family assertions that the Defendant must have had seizures
before.
In addition to the defense expert’s changing opinions, reliance
upon a witness with little to no credibility and the acceptance of
family assertions of prior seizures without documentation, the
expert acknowledged her opinion is consistent with the
international standards established by professionals who have the
specific expertise to guide courts in this, again using the
Defendant’s expert’s own language, rarest of cases.
The evidence is clear that Defendant’s situation does not meet
those standards. Although Dr. Blake has a sincere belief in her
conclusions, they are not credible to the Court and are the
equivalent of trying to fit a square peg into a round hole. Even if
the court accepted the defense theory, which the Court after
careful consideration does not, allowing the Defendant to avoid
responsibility for this violent act would not be just or fair. This is
not a case where the Defendant’s unknown bad health condition
caused him to unwillingly commit a criminal offense. Rather,
the Defendant’s willful choice to not seek reasonable medical
care from his previous alleged head traumas so that he could
avoid negative legal consequences to himself has caused him to
knowingly engage in dangerous behavior or activities which
ultimately seriously hurt him and caused another citizen to lose
his life.
To summarize, the State has proven the elements of murder
beyond a reasonable doubt based on the totality of the
circumstances. The Court further finds the State has disproven
the defense’s contention, although rigorously and well-argued,
beyond a reasonable doubt and enters judgment of conviction of
Court One, murder, and Count Two, possession of marijuana.
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 11 of 21
(Tr. Vol. VIII at 211-3.) On May 6, 2022, the trial court sentenced Brown to an
aggregate sentence of fifty-eight years incarcerated with three years suspended
to probation.
Discussion and Decision
1. Blood Sample
[16] Brown argues the State violated his right to due process when it failed to secure
Brown’s blood sample taken shortly after the incident because such evidence
may have been exculpatory. The Due Process Clause of the Fourteenth
Amendment “guarantees criminal defendants a meaningful opportunity to
present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 326 (2006).
“When the State fails to preserve materially exculpatory evidence, a due process
violation occurs regardless of whether the State acted in bad faith.” Pimentel v.
State, 181 N.E.3d 474, 480 (Ind. Ct. App. 2022), trans. denied. Evidence is
exculpatory if it clears or tends to clear the defendant from alleged fault or guilt.
Id. “Evidence is materially exculpatory if it ‘possesses an exculpatory value that
was apparent before the evidence was destroyed’ and must ‘be of such a nature
that the defendant would be unable to obtain comparable evidence by other
reasonably available means.’” Id. at 479 (quoting Chissell v. State, 705 N.E.2d
501, 504 (Ind. Ct. App. 1999), trans. denied).
[17] However, we need not consider the exculpatory nature of the blood sample or
whether the State acted in bad faith by not preserving it because the State never
possessed the blood sample. We examined this issue in Glasscock v. State, 576
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 12 of 21
N.E.2d 600 (Ind. Ct. App. 1991), reh’g denied, trans. denied. 6 In that case, on
November 29, 1989, Glasscock was involved in a motor vehicle accident in
which the occupants of the other vehicle died. Id. at 602. At the scene of the
accident, witnesses “detected an odor of alcohol on Glasscock’s breath.” Id.
During Glasscock’s emergency room visit immediately after the accident, the
attending doctor took samples of Glasscock’s blood. Id. The results of one of
the blood tests indicated Glasscock’s blood alcohol content (“BAC”) was
.196%. Id.
[18] Based thereon, the State charged Glasscock with operating a vehicle while
intoxicated causing death, reckless homicide, and operating a vehicle with .10%
or more BAC resulting in death. Id. On February 9, 1990, Glasscock filed a
motion for independent blood analysis, which the trial court apparently
granted. Id. Glasscock attempted to obtain the blood samples and discovered
the hospital had destroyed them seven days after they were taken. Id.
Glasscock then filed a motion to suppress the State’s BAC evidence. Id. The
trial court denied his motion. Id. Following a jury trial, the trial court entered
convictions on all counts. Id.
[19] On appeal, Glasscock argued the BAC evidence was erroneously admitted
because the blood samples taken by the hospital were destroyed before he could
6
We note Westlaw indicates Glasscock was disapproved by Abney v. State, 821 N.E.2d 375, 378-9 (Ind. 2005).
However, the ground for disapproval in Glasscock – limiting the application of Indiana Code section 9-11-4-6
(predecessor to Indiana Code section 9-30-6-6(g)) to when a physician refuses to draw a blood sample – is
distinct from the portion of Glasscock that we rely on herein, which remains good law.
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 13 of 21
conduct an independent analysis. Id. He claimed the State negligently
destroyed material evidence and did so in bad faith, and thus his conviction
should be overturned. Id. However, we noted “the police and the prosecution
never possessed the blood samples. Upon Dr. Froderman’s own initiative,
blood samples were taken and tested. Afterwards, the samples were destroyed
in accordance with the hospital’s procedure.” Id. Based thereon, we held:
“Where the police and the prosecution did not possess evidence, the rule
requiring reversal of a conviction based upon evidence which was negligently
destroyed does not apply.” Id.
[20] The situation here is almost identical. As noted in the facts, emergency room
staff at Eskenazi Hospital collected blood and urine samples from Brown
shortly after the incident. When Detective Prater obtained a search warrant
and went to collect the samples almost three weeks after the incident, he
discovered the hospital had destroyed the blood samples. Like in Glasscock, the
State never possessed the blood samples and, therefore, cannot be held
responsible for the destruction of Brown’s blood samples. Brown has not
demonstrated a violation of his right to due process.
2. Urine Sample
[21] Brown next argues the trial court abused its discretion when it admitted the
urinalysis results from the sample collected shortly after the shooting because
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 14 of 21
the results were irrelevant under Indiana Rule of Evidence 401(1)(b) 7 and, even
if relevant, the results were unfairly prejudicial under Rule 403. 8 We afford trial
courts broad discretion in ruling on the admission of evidence. Townsend v.
State, 33 N.E.3d 367, 370 (Ind. Ct. App. 2015), trans. denied. “Generally, we
review the trial court’s ruling on the admission of evidence for an abuse of
discretion. We reverse only where the decision is clearly against the logic and
effect of the facts and circumstances.” Jones v. State, 982 N.E.2d 417, 421 (Ind.
Ct. App. 2013) (internal citation omitted), trans. denied.
[22] The State offered the urinalysis evidence in support of its theory that Brown
was chemically impaired, rather than having a seizure or other physical brain
impairment, at the time that he shot Lieutenant Allan. During trial, Dr. Sheila
Arnold with the Indiana State Department of Toxicology testified regarding her
review of the urine sample results she received from the laboratory. She
explained “[u]rine is an indicator of past usage. It doesn’t preclude current
usage, but it generally is looked at as showing you what has been in that
person’s system in hours or days prior.” (Tr. Vol. VII at 180.) Therefore,
because the urinalysis could not pinpoint a time of usage, the evidence bore
7
Rule 401 states, in relevant part: “Evidence is relevant if: (1) it has any tendency to make a fact more or less
probable than it would be without the evidence; and . . . (b) the fact is of consequence in determining the
action.”
8
Rule 403 states, in relevant part: “The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice[.]”
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 15 of 21
only slight relevance to the issue of whether Brown was intoxicated at the time
of the crime.
[23] However, even if the evidence had been irrelevant, we would not reverse unless
Brown was prejudiced by the admission. See Ind. Appellate Rule 66 (no error
requires reversal unless it impacts the substantial rights of a party). When, as
here, the court conducts a bench trial, we presume the trial court knows and
properly applies the law and considers only evidence properly before the court
as the court reaches a decision. See Conley v. State, 972 N.E.2d 864, 873 (Ind.
2012). “The risk of prejudice is quelled when the evidence is solely before the
trial court.” Id. An error in the admission of evidence does not require reversal
unless it affects the substantial rights of a party. Stewart v. State, 754 N.E.2d
492, 496 (Ind. 2001). “The improper admission of evidence is harmless error
when the conviction is supported by such substantial independent evidence of
guilt as to satisfy the reviewing court that there is no substantial likelihood that
the questioned evidence contributed to the conviction.” Barker v. State, 695
N.E.2d 925, 931 (Ind. 1998), reh’g denied.
[24] Here, any error in the admission of the urinalysis was harmless because there
existed substantial independent evidence to support Brown’s conviction. First,
the trial court’s pronouncement of guilt suggested it did not rely on the
toxicology report and instead rejected the State’s theory that Brown was
intoxicated. (See Tr. Vol. VIII at 211) (“While the State has argued vigorously
its theory of the case with an emphasis on the Defendant’s drug use and/or the
Defendant’s reaction to a potential drug withdrawal, the Court is not required
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 16 of 21
to accept or even agree with that premise.”). Second, the trial court’s
pronouncement of guilt addressed in detail – and rejected – the evidence
provided by defendant as to his theory of defense, and that rejection was
supported by substantial evidence in the record. Brown was able to answer
questions posed by Lieutenant Allan prior to the shooting and Brown provided
Lieutenant Allan with his driver’s license when requested. Shortly after Brown
gave Lieutenant Allan his driver’s license, Brown suddenly yelled “fuck you”
and said, “give me the fucking gun.” (Id. at 1:09 - :11.)
[25] Regarding Brown’s defense theory that he was unable to process the scene of
the accident because of a head injury, prior head trauma, or a seizure, the State
presented testimony from Dr. Troy Payner, a neurosurgeon from Goodman
Campbell Brain and Spine. Dr. Payner testified his review of Brown’s CT scans
taken shortly after the incident did not indicate any past trauma. He noted the
CT scan indicated there was “bleeding in the right frontal part of the brain” that
was “small, isolated to the right front part.” (Tr. Vol. VII at 135-6.) Dr. Payner
testified that in the “thousands” of similar injuries he had seen in his career, he
had never observed a patient with that injury be “aggressive or violent” and
opined that “head injury patients who are intoxicated may[ ]be thrashing and
what not.” (Id. at 137.) Dr. Payner testified it was his opinion that Brown’s
“head injury did not occur as a result of the car accident.” (Id. at 149.)
Regarding the defense’s theory that Brown suffered a seizure related to the
accident causing him to be unable to understand his actions, Dr. Payner
testified someone having a seizure would “make[] repetitive movement[s] . . .
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 17 of 21
either shaking . . . their arm just shakes, or their lips move in a certain way.”
(Id. at 159.) He stated those actions are “different than someone who is
reaching to pick something up specifically, and that’s a more directed or
volitional movement, including pulling a gun.” (Id.) Based thereon, Dr.
Payner concluded, “I think there is tremendous evidence that he did not have a
seizure.” (Id. at 169.) Because the evidence presented independent of the
urinalysis rebutted the defense’s theory of the crime, any error in the admission
of the urinalysis results was harmless. See, e.g., Smith v. State, 190 N.E.3d 462,
466 (Ind. Ct. App. 2022) (even if the admission of evidence may have been
error, that error was harmless given the overwhelming evidence of defendant’s
guilt), reh’g denied, trans. denied.
3. Sufficiency of the Evidence
[26] Brown argues the State did not present sufficient evidence he knowingly or
intentionally killed Lieutenant Allan because Brown, who the defense
contended was suffering from head trauma and/or a seizure, “was not
processing the scene correctly. It is akin to self-defense, though his perception
of what was happening was not reality. Jason Brown did not wake up that
morning intending to inflict harm on anyone . . . [t]his was out of character for
Jason Brown[.]” (Br. of Appellant at 27.) We apply a well-settled standard of
review when evaluating claims of insufficient evidence:
Sufficiency-of-the-evidence claims . . . warrant a deferential
standard, in which we neither reweigh the evidence nor judge
witness credibility. Rather, we consider only the evidence
supporting the judgment and any reasonable inferences drawn
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 18 of 21
from that evidence. We will affirm a conviction if there is
substantial evidence of probative value that would lead a
reasonable trier of fact to conclude that the defendant was guilty
beyond a reasonable doubt.
Powell v. State, 151 N.E.3d 256, 262-63 (Ind. 2020) (internal citations omitted).
“The State must prove every element of the crime charged beyond a reasonable
doubt.” Willis v. State, 983 N.E.2d 670, 672 (Ind. Ct. App. 2013).
[27] To prove Brown committed murder, the State had to prove he “knowingly or
intentionally” killed Lieutenant Allan. See Ind. Code § 35-41-1-1(1). A person
engages in behavior 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). A person
engages in behavior intentionally if, “when he engages in the conduct, it is his
conscious objective to do so.” Ind. Code § 35-41-2-2(a). Intent is a mental
function, Laughlin v. State, 101 N.E.3d 827, 829 (Ind. Ct. App. 2018), and unless
a defendant confesses, a trier of fact must infer intent from the circumstances
surrounding the act at issue. Id. To support a murder conviction, the
knowingly mens rea “may be inferred from a defendant’s use of a deadly
weapon in a manner likely to cause death.” Miles v. State, 51 N.E.3d 305, 611
(Ind. Ct. App. 2016) (citing Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998),
reh’g denied), trans. denied.
[28] As noted supra in our analysis of the admission of the urinalysis, the State
presented evidence Brown was able to answer questions from and provide his
driver’s license to Lieutenant Allan prior to the shooting and shortly after the
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 19 of 21
accident. Additionally, he shouted, attempting to locate his gun, while
Lieutenant Allan was in the vehicle rendering aid. Brown shot his gun until it
was empty, that is, eighteen shots, ten of which hit Lieutenant Allan. Finally,
the State’s expert, Dr. Payner, testified that, in his opinion, Brown’s behavior
was not consistent with someone suffering a seizure and the CT scan taken of
Brown shortly after the accident did not indicate the head trauma Brown
claimed to have suffered prior to the car accident. Brown’s reliance on his
expert, Dr. Sheila Arnold, and his alternative interpretation of the evidence is
an invitation for us to reweigh the evidence and judge the credibility of
witnesses, which we cannot do. See Powell, 151 N.E.3d at 262 (appellate court
does not reweigh evidence or judge the credibility of witnesses). Based thereon,
we conclude the State presented sufficient evidence Brown knowingly and
intentionally killed Lieutenant Allan. See, e.g., Barker v. State, 695 N.E.2d 925,
931 (Ind. 1998) (“to fire a deadly weapon at point blank range is to be ‘aware of
a high probability’ that death will result”) (quoting Ind. Code § 35-41-2-2(b)),
reh’g denied.
Conclusion
[29] The State did not violate Brown’s due process right to a defense when it did not
preserve Brown’s blood sample because the State never possessed Brown’s
blood sample. Further, any error in the admission of Brown’s urinalysis was
harmless because there existed sufficient evidence outside of the urinalysis to
Court of Appeals of Indiana | Opinion 22A-CR-01241 | October 26, 2023 Page 20 of 21
disprove his defense. Finally, the State presented sufficient evidence to rebut
Brown’s defense and prove that he committed murder. Accordingly, we affirm.
[30] Affirmed.
Weissmann, J., and Foley, J., concur.
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