MILLER v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] In November 2022, Dawn Robinson called 9-1-1 to report that Tony Wayne Miller, Jr. fired gunshots into her vehicle. Robinson was shot in her arm, and her passenger, Wayne Wilson IV, was shot in his head. Wilson died from his injuries. Miller was arrested and charged with murder and attempted murder. Following a jury trial, Miller was found guilty, and he later admitted to habitual offender and firearm enhancements. The court sentenced him to an aggregate term of 105 years in the Indiana Department of Correction (DOC).

[2] Miller appeals raising the following restated issues: (1) whether the evidence was sufficient to prove he committed murder and attempted murder; (2) whether the trial court abused its discretion when it admitted the 9-1-1 call into evidence; and (3) whether the trial court abused its sentencing discretion. We affirm.

Facts and Procedural History 1

[3] Miller and Robinson, former romantic partners, had a daughter together. In November 2022, Robinson had been separated from Miller for several years and had been dating Wilson for about a year. Around 6:00 p.m. on November 18, Robinson drove her car to Miller's mother's apartment in Indianapolis to pick up her daughter. Wilson rode with Robinson in the front passenger seat. After Robinson parked, a person parked a truck next to Robinson on the passenger side of her car. Robinson “looked over and acknowledged it was [Miller]” driving the “white” truck. Tr. Vol. III p. 177. She further confirmed she made “eye contact” with Miller and said “he looked a little upset” after seeing her. Id. Robinson began looking for her phone, intending to call Miller's mother to hasten picking up her daughter. Then “bullets came through” Robinson's front passenger window: one struck Wilson in the head; another struck Robinson in her right arm. Id. at 176. The truck drove away right after the shots were fired.

[4] Just after the shooting and with the help of a bystander, Robinson called 9-1-1. Robinson identified “Tony Miller” as the shooter, State's Ex. 6 at 2:55-3:05, and said he “pulled up and pulled off” “in a black truck, it was a white truck.” Id. at 0:55-1:20, 2:45-3:15. The unidentified bystander helped Robinson provide the address to the dispatcher and described the shooter's truck as “white and black.” Id. at 3:25-3:45. The bystander was not identified by police.

[5] Police arrived at about 6:17 p.m. and found Robinson and Wilson still sitting in her vehicle, each suffering from a gunshot wound. Before she and Wilson were transported to a hospital, Robinson told the responding officer that Miller was the shooter. See Tr. Vol. III p. 211. Indianapolis Metropolitan Police Department (IMPD) Detective Aaron Ramos also responded and issued a “be on the lookout” for Miller as the identified suspect. Id. at 211. The next day at the hospital, Det. Ramos showed Robinson a photo array, and she again identified Miller as the shooter.

[6] Later that day, Wilson died at the hospital from his injuries. Wilson's autopsy revealed the bullet traveled from “right to left” in his head; it entered above his right ear and traveled in a downward trajectory to the base of his skull. Tr. Vol. IV p. 26. His death was ruled a homicide.

[7] Police later examined evidence recovered from the crime scene, including a spent bullet casing from outside the passenger side of Robinson's car and Robinson's gun from inside of her purse. They determined Robinson's gun was not the one that fired the shots at her and Wilson, and they never recovered the gun that fired the shots. Police later obtained data that showed Miller's cell phone connected with a tower covering the apartment complex parking lot at about 6:13 p.m.—mere moments before the 9-1-1 call. The data also showed Miller's phone traveling away from the parking lot then returning to the area at 6:33 p.m.

[8] On November 22, police saw Miller driving a white Chevrolet S-10 pickup truck with a black camper shell which was registered to Miller's father. See id. at 105; State's Ex. 63. Miller parked the truck in the apartment complex adjacent to his mother's complex, then walked through a wood line to his mother's complex. After recovering the truck, police found Miller's DNA on the gear shift, steering wheel, turn signal, driver's seat belt buckle, and the interior and exterior driver's side door handles. Police followed and arrested Miller around 12:00 a.m. on November 23.

[9] Later that day, police interviewed Miller. He said he had not been to his mother's apartment in a couple of weeks and claimed he was on a date in Terre Haute on the day of the shooting. He claimed he had not seen or driven his father's truck in years. Miller also said he was at his friend Ray's apartment on November 20, which was in the same complex as his mother's apartment. While in jail, Miller called a friend, told them to “ask Ray, ‘Is that still in the back of his house?’ ” and directed them to “bleach, and god damn it throw everything away.” State's Ex. 81 at 1:55-2:55.

[10] The State charged Miller with murder, Level 1 felony attempted murder, and Level 5 felony unlawful carrying of a handgun. The State later added use of a firearm and habitual offender enhancements. A three-day jury trial ensued on April 29, 2025. The court admitted the 9-1-1 call over Miller's objection that admission of the unknown bystander's statements violated his state and federal constitutional rights. Miller cross-examined Robinson about the 9-1-1 call, and she confirmed she did not know the bystander who helped make the call. At the conclusion of the trial, the jury found Miller guilty of murder and attempted murder and that he was carrying a handgun. The State dismissed and did not proceed with the second phase on the Level 5 felony charge, and Miller pled guilty to both enhancements.

[11] Miller's presentence investigation (PSI) report revealed he had an extensive criminal history including: delinquency adjudications for battery resulting in bodily injury and felony criminal recklessness while armed with a deadly weapon; misdemeanor convictions for battery resulting in bodily injury, carrying a handgun without a license, and operating a vehicle without ever receiving a license; and a felony conviction for possession of cocaine and two felony convictions for carrying a handgun without a license.² He also had multiple jail disciplinary reports, including four for assault, and multiple probation and community corrections violations.

[12] At sentencing, the court considered Miller's “extremely aggravated, violent, and concerning” criminal history an aggravator. Tr. Vol. V. p. 72. Although it gave it very little weight, the court considered the hardship to Miller's children as a mitigator. The court imposed consecutive sentences of sixty years for murder plus ten years for the habitual offender enhancement and thirty years for attempted murder plus five years for the firearm enhancement all executed in the DOC. Miller now appeals.

Discussion and Decision

I. Sufficiency of Evidence

[13] Miller contends the State presented insufficient evidence to prove he committed murder and attempted murder. Our standard of review is well settled:

When reviewing sufficiency of the evidence in support of a conviction, we will consider only probative evidence in the light most favorable to the trial court's judgment. The decision comes before us with a presumption of legitimacy, and we will not substitute our judgment for that of the fact-finder. We do not assess the credibility of the witnesses or reweigh the evidence in determining whether the evidence is sufficient. Reversal is appropriate only when no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Thus, the evidence is not required to overcome every reasonable hypothesis of innocence and is sufficient if an inference reasonably may be drawn from it to support the verdict.

Gary v. State, 124 N.E.3d 90, 93 (Ind. Ct. App. 2019) (citations omitted).

[14] To convict Miller of murder, the State had to prove beyond a reasonable doubt that he “knowingly or intentionally kill[ed] another human being[.]” Ind. Code § 35-42-1-1(1) (2018). To convict him of attempted murder, the State had to prove Miller, when “acting with the culpability required for commission of the crime,” “engage[d] in conduct that constitutes a substantial step toward commission of” murder. Ind. Code § 35-41-5-1(a) (2014); see I.C. § 35-42-1-1(1).

A. Shooter

[15] As to his murder and attempted murder convictions, Miller argues the State failed to prove he was the shooter because Robinson neither saw Miller with a gun nor saw him shoot a gun. However, our Supreme Court has held that “a murder conviction may be based entirely on circumstantial evidence[.]” Young v. State, 198 N.E.3d 1172, 1177 (Ind. 2022) (quoting Kriner v. State, 699 N.E.2d 659, 660 (Ind. 1998)). “[A] jury may be convinced, beyond a reasonable doubt, by looking at ‘a web of facts in which no single strand may be dispositive.’ ” Id. at 1176 (quoting Kriner, 699 N.E.2d at 664). The circumstantial evidence is sufficient if the totality of the evidence favorable to the State and the reasonable inferences that the jury could draw from the evidence “fit together into a coherent whole that incriminates the defendant.” Id. at 1177.

[16] Here, the circumstantial evidence was sufficient to prove Miller was the shooter. Robinson testified that Miller parked his truck next to her so that his driver's side window was adjacent to her passenger side window. She told the jury that she “looked over and acknowledged it was [Miller]” driving the truck parked next to her. Tr. Vol. III p. 177. Miller made eye contact with her and looked upset. Robinson briefly looked away to locate her phone inside of her car; then, shots were fired through her front passenger window, and the truck immediately drove off. Robinson identified Miller as the shooter to the 9-1-1 dispatcher, the responding officers, and Det. Ramos. Although Robinson did not see Miller draw a gun and pull the trigger, the jury could reasonably infer from her testimony alone that Miller fired the shots that struck her and Wilson.

[17] In addition, the jury saw photos of two bullet holes in the front passenger window of Robinson's car and one spent bullet casing lying on the ground next to Robinson's front passenger door. The pathologist testified that the bullet that killed Wilson traveled at a downward trajectory from his right ear to the base of his skull, which supports the inference that Miller fired the shots from a truck, down into Robinson's car. Further, police found Miller's cell phone connected to a cellular tower covering the parking lot just before Robinson's 9-1-1 call was made, corroborating that Miller was the person Robinson saw in the truck. The totality of these circumstances “fit together into a coherent whole that incriminates” Miller. Young, 198 N.E.3d at 1177.

B. Specific Intent

[18] Regarding his attempted murder conviction, Miller argues the State failed to prove he had the specific intent to kill Robinson. “[F]or a person to be convicted of attempted murder, ‘the State must prove beyond a reasonable doubt that the defendant [acted] with intent to kill the victim.’ ” Gary, 124 N.E.3d at 93 (quoting Sprandlin v. State, 569 N.E.2d 948, 950 (Ind. 1991)). In other words, although murder requires a knowing or intentional killing, the State must prove the defendant specifically “intended death” in the attempt context, not merely that he knew death could result. Id. (quoting Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998)).

Intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily injury, in addition to the nature of the attack and circumstances surrounding the crime. Gall v. State, 811 N.E.2d 969, 975 (Ind. Ct. App. 2004)․ Further, our supreme court held that discharging a weapon in the direction of a victim is substantial evidence from which the jury could infer intent to kill. Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988).

Id. at 94 (quoting Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006)).

[19] Miller argues the State did not prove beyond a reasonable doubt that he had the specific intent to kill because that conclusion required impermissible “inference-stacking.” Appellant's Br. p. 15. That is, first the jury had to infer that he shot Robinson; then the jury had to infer that if he shot Robinson, he did so with specific intent to kill. Miller references Booker v. State, wherein we concluded there was no inference stacking in that defendant's attempted murder case because there was direct evidence that a witness saw defendant pull the trigger; thus, the only inference was that defendant did so with specific intent. 741 N.E.2d 748 (Ind. Ct. App. 2000). Miller notes there is no direct evidence that he pulled the trigger. But the absence of direct evidence is not the only consideration in determining whether the State overcame the rule against inference-stacking.

[20] In Booker, we noted our precedent that “a factfinder's determination cannot stand if it is based upon mere speculation or conjecture or on an inference on another inference.” Lewis v. State, 535 N.E.2d 556, 559 (Ind. Ct. App. 1989). We have since explained that an inference must first be supported by “an evidentiary fact having independent validity” before that inference can itself be taken as the basis of a new fact. C.T. v. State, 28 N.E.3d 304, 309 (Ind. Ct. App. 2015) (citing Brown v. State, 36 N.E.2d 759, 760 (Ind. 1941) (“A fact in the nature of an inference may itself be taken as the basis of a new inference, whether intermediate or final, provided the first inference ha[s] the required basis of a proved fact.” (emphasis added))), trans. denied. We thus held that “inference-stacking without establishment of a predicate fact ․ is not constitutionally adequate” to prove an offense beyond a reasonable doubt. Id.

[21] As discussed above, the evidence was sufficient for the jury to find Miller was the shooter. See paragraphs 16 and 17 supra. Robinson identified Miller as the shooter, the evidence showed that the bullets traveled in a downward trajectory likely from a truck into a car, and cellphone data placed Miller at the scene at the time of the shooting. These facts had independent validity, establishing the required basis to support the jury's inference that Miller was the shooter. Thus, the fact that Miller was the shooter—despite being a “fact in the nature of an inference”—may itself be taken as the basis of a new inference. See C.T., 28 N.E.3d at 309 (quoting Brown, 36 N.E.2d at 760). Impermissible inference-stacking did not occur.

[22] Turning back to sufficiency, the evidence sufficiently established Miller had the specific intent to kill. Robinson's testimony and photos of the scene show Miller parked directly next to Robinson and Wilson. While Robinson was seated in the driver's seat of her car, Miller made eye contact with her and looked upset; thus, the jury could reasonably infer that Miller saw that Robinson sitting in the car parked directly next to his truck. Miller then fired two bullets into Robinson's car through the passenger window in the immediate direction where Robinson and Wilson were seated. One of those bullets struck Wilson in the head, and the other struck Robinson in her right arm. The nature and circumstances surrounding this attack, coupled with the fact that Miller fired a gun in Robinson's direction from a short distance away, are sufficient to prove Miller intended to kill Robinson.

II. Admission of Evidence

[23] Miller also argues the court erred in admitting the 9-1-1 call because it contained “testimonial hearsay” from an unknown bystander. Appellant's Br. p. 16. Specifically, he contends the bystander's description of the truck as “white and black” was provided “in the interest of catching and prosecuting the assailant.” Id. at 18, 19. Miller alleges the court's error violated his rights under the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution.

[24] “A trial court has broad discretion in ruling on the admissibility of evidence, and we disturb those rulings only upon an abuse of that discretion.” Ramsey v. State, 122 N.E.3d 1023, 1030 (Ind. Ct. App. 2019), trans. denied. “An abuse occurs only where the trial court's decision is clearly against the logic and effect of the facts and circumstances.” Id. However, “when a defendant challenges the admission as a constitutional violation of his rights, we review the issue de novo.” Cruz v. State, 218 N.E.3d 632, 636 (Ind. Ct. App. 2023) (quoting Cardosi v. State, 128 N.E.3d 1277, 1286 (Ind. 2019)), trans. denied.

A. Sixth Amendment

[25] We begin by addressing Miller's argument under the Sixth Amendment. “The Sixth Amendment to the United States Constitution provides that ‘in all criminal prosecutions the accused shall enjoy the right ․ to be confronted with the witnesses against him.’ ” Hill v. State, 137 N.E.3d 926, 935 (Ind. Ct. App. 2019) (citation omitted), trans. denied. When testimonial evidence is at issue, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374 (2004). Because Miller had no opportunity to cross-examine the unknown bystander, the bystander's statements were only admissible if they were nontestimonial.³

[26] “Though leaving ‘testimonial statement’ undefined, the [U.S. Supreme] Court stated that the label ‘applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.’ ” Cardosi, 128 N.E.3d at 1286 (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354). In determining if a statement is testimonial, we consider whether, “in light of all the circumstances, viewed objectively, the primary purpose of the conversation was to create an out-of-court substitute for trial testimony.” Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 2180 (2015) (brackets and quotations omitted). “These circumstances include whether the statements were made with the primary purpose of ending an ongoing emergency, whether the statements were made in a formal setting, and whether the statements were made to law enforcement personnel.” Cardosi, 128 N.E.3d at 1288. “If the circumstances indicate the purpose of the interrogation is ‘to enable police assistance to meet an ongoing emergency,’ then the statements are considered non-testimonial and not subject to the Confrontation Clause.” King v. State, 985 N.E.2d 755, 758 (Ind. Ct. App. 2013) (Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273 (2006)), trans. denied. “However, if circumstances indicate the primary purpose of the conversation is to ‘prove past events potentially relevant to later criminal prosecution,’ then the statements are considered testimonial and protected by the Confrontation Clause.” Id. (quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266).

[27] Here, a bystander helped Robinson call 9-1-1 to report that she and Wilson had just been shot by Miller. Robinson explained to the dispatcher that Miller pulled up, shot them, and then pulled off. She was frantic, emotional, and yelling for help throughout the call. Police were dispatched to the scene where the shooting had just occurred. The dispatcher asked for descriptions of the shooter and his vehicle, to which Robinson and the bystander responded. These questions were not designed to preserve evidence for a trial but to provide responding officers with identifying information about the shooter so that they could determine whether Miller was still in the area posing an active threat.

[28] The mere fact that the description of the truck has “little to do with Robinson and Wilson's ongoing medical emergencies” is of no moment. Appellant's Br. p. 19. Our analysis of the nature of the bystander's statements is not limited to whether the dispatcher sought information to assist with the medical aspect of the emergency or for subsequent prosecution; indeed, information could be sought to enable police response to another aspect of the emergency. And Robinson's statement that Miller had pulled off was insufficient to establish that the danger had ended. The dispatcher was not on the scene and could not determine whether the threat was ongoing when the shooting occurred mere moments before the 9-1-1 call was made. Rather, the dispatched officers needed a description of the shooter so they could determine whether they were encountering a violent felon when responding to the scene. See e.g., Davis, 547 U.S. at 827, 126 S.Ct. 2266. Thus, the bystander's statements were not converted from non-testimonial to testimonial during the call. Because the primary purpose of all the information provided in the 9-1-1 call was to enable police assistance in responding to the emergency, the admission of the call did not violate the Sixth Amendment.

B. Article 1, Section 13

[29] Next, we analyze the additional requirements of the Indiana Constitution to determine whether admission of the bystander's statements violated Miller's right to face-to-face confrontation. Article 1, Section 13 of the Indiana Constitution provides: “In all criminal prosecutions, the accused shall have the right ․ to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.” “Indiana's right to a face-to-face meeting is, to a considerable degree, ․ co-extensive with the federal confrontation right.” Ward v. State, 50 N.E.3d 752, 756 (Ind. 2016) (quotations and brackets omitted). However, the “Indiana Constitution recognizes [ ] something unique and important in requiring the face-to-face meeting between the accused and the State's witness as they give their trial testimony.” Hill, 137 N.E.3d at 936.

[30] Nonetheless, the “face to face” requirement “has not always been interpreted literally.” Ward, 50 N.E.3d at 756. “Otherwise, the testimony of all absent witnesses, whether unavailable through death or illness or threat, would never be admissible at trial.” Id. Thus, when a live witness reports a hearsay statement from a declarant, “the constitutional reference to meeting the ‘witness’ is literally fulfilled because the witness reporting the hearsay is on the stand.” Id. (quoting Pierce v. State, 677 N.E.2d 39, 49 (Ind. 1997)).

[31] Here, the State introduced the call during Robinson's live testimony. Robinson confirmed she was on the 9-1-1 call and that the other voice belonged to an unknown woman. See Tr. Vol. III p. 181. Miller cross-examined Robinson about the call, her descriptions of the truck, and the unknown bystander. See id. at 184, 191-92. Thus, his right to face-to-face confrontation of the witness against him—i.e. Robinson—was not violated. See e.g., Ward, 50 N.E.3d 752 (holding right to confrontation under Article 1, Section 13 was not violated when victim's statements were admitted during paramedic's and nurse's testimony and defendant confronted them face to face).⁴ ,  ⁵

III. Sentencing Discretion

[32] Miller also argues the court abused its sentencing discretion, alleging it relied on acquitted allegations in his criminal history—that is, his prior charges for murder. “[S]entencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (quotations omitted). One way a trial court can abuse its discretion is if it considers reasons that “are improper as a matter of law.” Id. at 490-91.

A single aggravating circumstance may be sufficient to enhance a sentence. When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. The question we must decide is whether we are confident the trial court would have imposed the same sentence even if it had not found the improper aggravator.

Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), (internal quotations and citations omitted), trans. denied.

[33] During sentencing, the State requested consecutive sentences arguing, “I think we do have an aggravator here in the criminal history. [Miller's] ․ been charged twice before for the crime of murder; once as a juvenile, once as an adult.” Tr. Vol. V. p. 69. Miller's juvenile charge was dismissed, and he was found not guilty of his adult charge following a trial. See App. Vol. III p. 140. The State continued, however, describing Miller's “six juvenile referrals, 13 arrests and[ ] summons as an adult” and the nature of his other offenses from his PSI report. Tr. Vol. V. p. 69. As Miller aptly notes, a trial court may not consider acquitted charges as evidence of a defendant's criminal history as an aggravator. See e.g., Walden v. State, 216 N.E.3d 1165, 1177 (Ind. Ct. App. 2023) (observing an acquittal is a finding of innocence, to which courts must give exonerative effect, and are improper aggravators as a matter of law (citing McNew v. State, 391 N.E.2d 607, 612 (Ind. 1979))), trans. denied.

[34] The State's sentencing argument notwithstanding, the court does not clearly consider Miller's acquittals as an aggravator. In relevant part, the court said,

I did have an opportunity to review the presentence report in this matter. With respect to the aggravating circumstances, the Court agrees with the State, Mr. Miller has, even for this type of offense, even not considering as separate aggravators the priors that were used to cause Mr. Miller to be an habitual criminal, he has an extremely aggravated criminal history. It's an extremely aggravated, violent, and concerning criminal history. He did recently violate the terms of his prior sentence.

Tr. Vol. V. p. 72. Miller “concedes that ‘the [trial] court did not specifically name Miller's adult murder allegations’ as aggravating circumstances.” Appellee's Br. pp. 33-34. We agree and cannot conclude from this that the court improperly considered Miller's acquitted allegations when it generally stated Miller's overall criminal history is aggravated, violent, and concerning.

[35] Still, Miller contends that his adult criminal history is not extremely aggravated or violent absent his acquitted murder charges. But Miller has an otherwise extensive criminal history, even excluding his felony convictions that provided the basis for his habitual offender enhancement. Miller had a delinquency adjudication and a misdemeanor conviction for battery resulting in bodily injury, four jail disciplinary reports for assault, a delinquency adjudication for criminal recklessness while armed with a deadly weapon, and a misdemeanor and a second felony conviction for carrying a handgun without a license. The court could have been referring only to this portion of his criminal history when determining it was “extremely aggravated, violent, and concerning[.]” Tr. Vol. V. p. 72. And the court's consideration of the same was a proper aggravator that supports Miller's enhanced sentence alone, which Miller does not challenge. See Baumholser, 62 N.E.3d at 417. The court did not abuse its sentencing discretion.

Conclusion

[36] Because the evidence supported the inference that Miller was the shooter and because impermissible inference-stacking did not occur, the State presented sufficient evidence to prove Miller committed murder and attempted murder. Because the unknown bystander's statements were nontestimonial and because Miller confronted Robinson face-to-face, his constitutional rights were not violated, and the trial court did not abuse its discretion in admitting the 9-1-1 call. And because the trial court did not improperly consider Miller's acquitted charges, it did not abuse its sentencing discretion. We affirm.

[37] Affirmed.

FOOTNOTES

2.   Miller's convictions for Level 5 felony carrying a handgun without a license in cause number 49G21-1608-F5-32124 and Level 5 felony possession of cocaine provided the factual basis for his habitual offender enhancement. See App. Vol. II p. 154. Miller's second felony conviction for carrying a handgun without a license, under cause number 49D29-2106-F5-18953, was not included in the information for his habitual offender enhancement. See id.

3.   At trial, the State argued the 9-1-1 call was admissible not only because the statements were nontestimonial, but because they constituted a present sense impression and an excited utterance of the persons on the call. We note that while an excited utterance by a declarant “will ordinarily lack the requisite motive” to be a testimonial statement, such a statement is not necessarily nontestimonial (and, thus admissible) simply because it is an excited utterance. Hammon v. State, 829 N.E.2d 444, 453 (Ind. 2005), cert. granted, Hammon v. Indiana, 546 U.S. 976, 126 S.Ct. 552 (Mem.) (2005), rev'd on other grounds, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (2006). Rather, the focus in determining whether a statement is nontestimonial is on law enforcement's motives in questioning the declarant. Id.

4.   In his reply brief, Miller asserts his case differs from our precedent and presents an issue of first impression because the declarant was unknown. Although this argument is waived for his lack of supporting reasoning or authority, see Indiana Appellate Rule 46(A)(8), our precedent suggests no reason why this scenario should be treated differently. While the declarant was unknown, Miller's right to confrontation was fulfilled because the witness reporting the declarant's statements was on the stand. See e.g., Ward, 50 N.E.3d at 756; Pierce, 677 N.E.2d at 49.

5.   The State also argues that any error in admitting the bystander's statement was harmless. “[V]iolations of the right of cross-examination do not require reversal if the State can show beyond a reasonable doubt that the error did not contribute to the verdict[,]” and such errors require “review of the whole record.” Hall v. State, 36 N.E.3d 459, 468 (Ind. 2015). Other witnesses identified Miller's truck, and police recovered his DNA on the truck. Moreover, Robinson's identification of Miller as the shooter was distinct from her description of his truck, and data from Miller's cell phone corroborated that he was at the scene at the time of the shooting. Thus, if the admission of the statement were an error—and we conclude it was not—it would not warrant reversal because it was cumulative and of little import to the prosecution's case.

Scheele, Judge.

Tavitas, C.J., and May, J., concur.