from the Marion Superior Court The Honorable Sheila A.
Carlisle, Judge Trial Court Cause No. 49G03-1508-MR-30525
ATTORNEYS FOR APPELLANT G. Allen Lidy Lidy Law, PC
Mooresville, Indiana John V. Siskopoulos Siskopoulos Law
Firm, LLP Boston, Massachusetts
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
Laura R. Anderson Deputy Attorney General Indianapolis,
Vaidik, Chief Judge.
In May 2015, Jeffrey Fairbanks admitted to police that he
disposed of his three- month-old daughter's body in an
Indianapolis dumpster. Despite extensive search efforts, her
body was never found. The State charged Fairbanks with murder
and Level 1 felony neglect of a dependent resulting in death.
At trial, the State, in order to prove that Janna's death
was not an accident, presented evidence that Fairbanks had
placed a pillow on his daughter on at least four prior
occasions. The jury found Fairbanks not guilty of the murder
charge but guilty of the neglect charge.
Fairbanks now appeals arguing, among other things, that the
evidence that he had previously placed a pillow on his
daughter was inadmissible pursuant to Indiana Evidence Rule
404(b)'s lack-of-accident purpose because he never
claimed that his daughter's death was an accident.
Because accident is a subset of intent-that is, a defendant
who claims accident is necessarily claiming that the act was
not intentional-we conclude that, similar to intent,
defendants must affirmatively claim accident before the State
can admit evidence pursuant to Evidence Rule 404(b) that the
act was not an accident. However, because we find that
Fairbanks claimed accident at trial and that the probative
value of the evidence is not substantially outweighed by the
danger of unfair prejudice, we conclude that the trial court
properly admitted the pillow evidence. Finding no merit to
the other arguments that Fairbanks raises on appeal, we
affirm his conviction for Level 1 felony neglect of a
dependent resulting in death.
and Procedural History
Yolanda Rivera and Fairbanks were the parents of Janna, who
was born in February 2015. Yolanda, Fairbanks, Janna, and
Yolanda's two other daughters-thirteen-year-old A.G. and
eleven-year-old E.M.-lived at Maison Gardens, an apartment
complex at 42nd Street and Post Road in Indianapolis. In May
2015, they moved to a nearby house on Candy Apple Boulevard.
Yolanda, Fairbanks, and Janna slept in the same bedroom,
sharing a king bed.
On Thursday, May 28, Yolanda woke up around 3:30 a.m. to get
ready for work. Yolanda changed three-month-old Janna's
diaper (Janna did not wake up during the diaper change) and
went to the kitchen to prepare a bottle for
Yolanda then left Janna's bottle on the bed for when she
woke up. When Yolanda left the house around 4:15 a.m., she
told Fairbanks that she had left a bottle ready for Janna.
Yolanda also left her cell phone for Fairbanks because he had
lost his cell phone.
Fairbanks had an appointment that morning, so A.G. and E.M.
had planned to stay home from school that day to watch Janna.
However, Fairbanks's appointment was canceled. Around
8:00 a.m., Fairbanks woke up A.G. to let her know that he
would be home after all. A.G. heard Janna crying around that
time; she described Janna's crying like "a regular
baby would cry." Tr. Vol. III p. 166. A.G. went back to
sleep and woke up for good around 11:00 a.m. She again heard
Janna crying, but this time-unlike the crying she had heard
around 8:00 a.m.-the crying sounded "muffled."
Id. at 164. A.G. went downstairs, ate breakfast, and
watched television with E.M., who had already woken up and
gone downstairs. About twenty minutes later, A.G. went
upstairs to use the bathroom, at which point she heard
Janna's "muffled" crying again. Id. at
166. After using the bathroom, A.G. went back downstairs.
A little later, Fairbanks came downstairs, went into the
kitchen, and asked the girls if there were any trash bags in
the house. A.G. said she didn't know. After looking
around, Fairbanks went back upstairs for about five minutes
and then came back downstairs with Janna, telling E.M. that
he was going for a ride. Janna was wrapped in a blanket with
only her nose and eyes showing. Janna's eyes were closed,
and she was not moving or making any sounds. Fairbanks took
Janna to his car, but he did not use the car seat, which was
still in the house.
In the meantime, Yolanda had been calling Fairbanks several
times throughout the day using a co-worker's cell phone,
but Fairbanks never answered. When Yolanda got off work at
1:30 p.m., she went straight home, arriving about twenty
minutes after Fairbanks had left with Janna. See id.
at 49 (Yolanda testifying that she got home "[a]round
2:00" p.m.). Yolanda was "alarmed" because
Janna's car seat was at home, and Fairbanks had not taken
any diapers or milk for Janna. Id. at 48-49, 171.
Yolanda called Fairbanks several more times, but he still did
not answer. Yolanda went to Maison Gardens (they still had
keys to their old apartment), but he wasn't there either.
Yolanda went back home and waited.
Fairbanks finally returned home around 11:30 p.m. Yolanda and
her daughters met him at his car. Yolanda asked Fairbanks
where Janna was, and he said Janna was in the car. But when
Yolanda looked in the car she only found a box of black trash
bags. Yolanda thought this was "strange" because
they did not use black trash bags at their house.
Id. at 54. Yolanda and her daughters followed
Fairbanks inside their house, where Yolanda continued to ask
him where Janna was. Fairbanks finally said he had buried
Janna in a cornfield and left a cross, but he would not tell
them where. As they continued asking him more questions about
Janna, Fairbanks's only answer was that she was "in
a better place now." Id. at 174.
Yolanda did not call 911 that night because she was scared of
Fairbanks. Id. at 57, 63 (Fairbanks threatening
Yolanda: "Call the police, and you'll see what
happens."); see also Tr. Vol. IV p. 88 (E.M.
testifying that Fairbanks was "mad" about the
possibility of police being called that night). Yolanda,
however, called 911 the following morning, Friday, May 29,
when she left the house to take A.G. and E.M. to school.
Indianapolis Metropolitan Police Department officers were
dispatched to Candy Apple a little before 9:00 a.m. Upon
arrival, officers woke up Fairbanks and asked him-about
"20 times"-where Janna was. Tr. Vol. III p. 27.
Each time Fairbanks responded that he "didn't
know." Id. at 27, 95. According to the
officers, Fairbanks's demeanor was "annoyingly calm
and monotone." Id. at 95. Officers immediately
began searching for Janna in the neighborhood retention pond
and nearby woods.
Meanwhile, Fairbanks was taken to the police station, where
he was interviewed that afternoon by a homicide detective and
a missing-persons detective. For over an hour, Fairbanks, who
appeared "nonplussed about the whole situation,"
maintained that he didn't know where Janna was. Tr. Vol.
IV p. 15. Fairbanks claimed that he "never hurt [his]
baby." Exs. 25 & 25A. The officers then employed a
"minimization" technique, whereby they suggested
that Janna died from SIDS or from Fairbanks accidentally
rolling onto her while he was sleeping. Tr. Vol. IV pp.
20-21. Eventually, Fairbanks admitted that when he woke up,
Janna was "already gone," that he didn't know
what happened to her, and that he didn't do anything
wrong. Exs. 25 & 25A. He said he then
"panicked" and drove around with her body for eight
hours. Id. After this admission, around 5:30 p.m.,
the officers and Fairbanks got into a patrol car, and
Fairbanks directed them to a dumpster at Maison Gardens,
which is where he claimed to have discarded Janna's body.
The officers searched the dumpster, but it had recently been
emptied. The officers learned that the dumpster contents
could have been taken to three possible landfills, and those
landfills were extensively searched by officers from several
different agencies over the next several days. Janna's
body was never found. However, Janna's blanket-the one
she was wrapped in when Fairbanks left the house with her on
Thursday afternoon-was found.
In any event, after the dumpster was searched that Friday
evening, the officers and Fairbanks returned to the police
station to resume the interview. See Exs. 26 &
26A. Fairbanks told the officers that Janna woke up around
5:30 a.m., at which point he changed her diaper. Fairbanks
said when he changed Janna's diaper, he placed a pillow
over her face to "muffle her" because she was
crying; however, he claimed that he took the pillow off
"right away" and then fed her. Id. The
officers gave Fairbanks a doll to demonstrate how he placed
the pillow on Janna. Fairbanks said after feeding her, he and
Janna stayed up for about two-and-a-half hours before going
back to sleep. Id. Fairbanks said when he woke up
and realized that Janna was dead, he panicked and tried to
figure out what happened: "So when I was panicking I was
trying to figure out what happened. You know, that's the
only thing I could think of is I rolled over on her, but when
I woke up it . . . didn't look like that [because Janna
was in the middle of the king bed and I was on the
edge]." Id. When the interview was over,
Fairbanks was free to leave.
During the following weeks, Fairbanks gave interviews to two
Indianapolis television stations, WTHR and Fox 59.
See Exs. 56 & 57. During these interviews,
Fairbanks said Janna woke up around 5:30 a.m., at which point
he changed her, he gave her a bottle, and she went back to
sleep. Fairbanks said he stayed up until around 8:00 a.m.; he
then went back to sleep and did not wake up again until
around 1:30 p.m. When Fairbanks picked up Janna, he said she
was limp and lifeless, her lips were blue, and he
couldn't figure out why. He said he tried to give Janna
CPR, but he was unable to revive her. He said he took
Janna's body out of the house because he didn't want
Yolanda or the girls to see her that way. When asked if he
accidentally rolled over Janna when he was sleeping, he said
he didn't think so but he didn't know. Ex. 57 (6:07).
Fairbanks admitted telling Yolanda that he buried Janna's
body when he really discarded her body in a dumpster.
On August 27, 2015-nearly three months after Janna's
death-the State charged Fairbanks with Count I: murder and
Count II: Level 1 felony neglect of a dependent resulting in
death. The charging information for Count I alleged that
Fairbanks knowingly killed Janna. The charging information
for Count II alleged that Fairbanks, who was at least
eighteen years old, knowingly placed Janna, a dependent who
was less than fourteen years old, in a situation that
endangered her life or health, to wit: he placed and/or left
Janna in an unsafe and/or unsupervised environment, which
resulted in her death. Appellant's App. Vol. II p. 17.
Before trial, the State filed a notice of intent to admit
404(b) evidence that Fairbanks had "plac[ed] a pillow
over [Janna's] face on at least (2) [prior]
occasions." Id. at 88. The evidence that the
State wanted to admit was statements from A.G. and E.M.
Fairbanks filed a motion in limine seeking to prohibit the
State from introducing such evidence, claiming that it
violated Indiana Evidence Rules 404(b) and 403. Id.
at 83. A hearing was held, and the State argued that the
pillow evidence was admissible under Evidence Rule 404(b):
[I]n our particular case, the defendant has stated that he
didn't know how the baby died, the baby died, he got up,
he put her in his car, he drove around, and he eventually put
it in a dumpster, so that negates - that states that it's
an accident. And he's - I mean, he's implying through
his actions that it was an accident. He didn't - you
know, he denied killing the child in his statement.
So I need to be able to combat that.
** * * *
I can't prove the exact cause of death because he's
destroyed the best piece of evidence, and that is the body.
And . . . that's not at argument here. He readily
admitted over and over and over that he put the body in the
** * * *
So the only way I can get to trying to prove his mistake or
his accident is to show his actions and his relationship with
this infant. And so that's why the State would object . .
. to these actions being limined.
Tr. Vol. II pp. 30-31. Defense counsel responded that
A.G.'s and E.M.'s statements regarding the prior
pillow incidents were "not reliable" and
"highly prejudicial." Id. at 40. The trial
court took the matter under advisement and later denied
Fairbanks's motion in limine on this issue.
A jury trial was held in April 2017. Right before trial
started, and as the jury was about to enter the courtroom,
the trial court went over last-minute issues with the
attorneys. Defense counsel stated:
Judge, we would like to show a . . . continuing objection to
the pillow evidence that the Court denied in . . . the Motion
in Limine. I can object, obviously, at the time, but just
wanted to show a continuing objection to that evidence.
Tr. Vol. III p. 3. The court responded, "Okay. Anything
in response?" Id. The only response the State
had was to offer a stipulation on another matter. As the
State was discussing the stipulation, the jury entered the
During trial, Yolanda testified that she had a normal
pregnancy and that Janna was a "healthy baby."
Id. at 36. Likewise, a pediatrician testified that
Janna was seen at her ten-day and one-month check-ups and
that she was generally healthy (Janna was not taken to her
two-month check-up; her next check-up would have been her
A.G. and E.M. then testified about the prior pillow
incidents; however, defense counsel did not object during
their testimony. Specifically, A.G. testified that she had
seen Fairbanks put a pillow on Janna "two or three
times," including once at Candy Apple. Id. at
178, 180. A.G. said Fairbanks put "a big long bed
pillow" with a red fluffy cover over Janna's head
because she was "fussy" and "crying."
Id. at 180. Janna was in the middle of the bed at
the time. A.G. explained that when she tried to remove the
pillow, Fairbanks got angry and told her that she didn't
know what she was doing. Fairbanks then told A.G. that the
pillow would stop Janna from crying and would relax her and
put her to sleep. A.G. explained that the muffled crying she
heard on Thursday, May 28 was the same crying that she heard
when Janna had a pillow over her face on the previous
occasions. Id. at 219-20.
E.M. also testified about seeing a pillow on Janna's face
on two occasions. She said when Janna was about two months
old and they lived at Maison Gardens, she came home from
school one day and saw Janna lying on the bed with a red and
white bed pillow on her face. When she took the pillow off
Janna, Janna was hot and crying. E.M. went into the living
room and asked Fairbanks why there was a pillow on
Janna's face. Fairbanks responded that "maybe"
Janna put it on her face. Tr. Vol. IV p. 91. E.M. then gave
Janna a bath because she was sweaty. E.M. said she saw Janna
with a pillow on her face one other time as well.
Id. at 92. Defense counsel vigorously cross-examined
A.G. and E.M., including why they did not initially tell
police or the forensic interviewer about the muffled cries or
the prior pillow incidents. Fairbanks did not ask for, and
the court did not give, a limiting instruction to the jury
about the prior pillow incidents.
During closing argument, the State argued that the evidence
supported guilty verdicts for each charge:
Fairbanks is guilty of murder. He smothered Janna with a
pillow. He caused her to suffocate and die. And so that means
. . . the State of Indiana has met its burden. We have met
[our] burden by proving ...