dissenting.
I agree with the majority that Collins did not adopt Downs’ statement and its admission was erroneous. However, I dissent from the reversal of Collins’ murder conviction, because the evidentiary error is harmless beyond a reasonable doubt. A denial of a defendant’s right of confrontation is harmless error where the evidence supporting the conviction is so convincing that a jury could not have found otherwise. Garner v. State, 777 N.E.2d 721, 725 (Ind.2002).
I do not dispute the majority’s characterization of Downs’ statement as “graphic, explicit and thunderous in tone.” At 826 N.E.2d 671, 678. However, there is ample evidence admitted without objection to show that Collins was angry, menacing, and using explicit profanity. Babysitter Rosetta Calhoun, who observed Collins immediately before he took Michelle from her home, described Collins as having “sheer hatred in his eyes.” (Tr. 396.) Michelle’s daughter K.J., who was awakened during the altercation in which Downs and Collins threatened Michelle and her boyfriend with guns, testified that Collins was using profanity. • K.J. reported to Detective Nathan Herring that both men were “yelling and screaming” and forced Michelle into the car by brandishing guns and punching Michelle in the face. (Tr. 968.) Michelle’s boyfriend, Kenny Kendall, received a telephone call shortly after Michelle left their residence, in which Michelle told him that she loved him and asked him to take care of her children. His testimony would support the inference that Michelle perceived her life as being threatened at that time.
Moreover, Collins exerted extensive efforts to plan and cover up what he claimed was an accident. Kendall testified that he and Michelle were invited to Downs’ home. Once there, Kendall was given marijuana and so much alcohol that he suspected Collins and Downs were deliberately trying to get him intoxicated by “pushing alcohol at him.” (Tr. 475.) When the four returned to Michelle’s home, Downs suddenly pointed a gun at Kendall and grabbed Michelle, but Kendall was admittedly intoxicated by that time and unable to defend Michelle. After the shooting, Collins set fire to the victim and her vehicle, disposed of Downs’ cellular phone by submerging it in water, threw the gun into a wooded area and disposed of the bullets individually. He then fled on a freight train. When apprehended, Collins claimed that his name was Jerry Downs and that he had blood on his clothes because he had been involved in a motorcycle accident. (Tr. 580, 588.) The jury may consider flight and related conduct in determining a defendant’s guilt (although an instruction emphasizing flight is improper). Dill v. State, 741 N.E.2d 1230, 1232 (Ind.2001).
A reasonable jury could not have acquitted Collins, but would have found him guilty of murder without Downs’ statement. As.such, reversal is not required. Therefore, I dissent.