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Fairbanks v. State

Court of Appeals of Indiana

August 1, 2018

Jeffrey Fairbanks, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal 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, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] 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.

         [¶2] 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.

         [¶3] 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.

         Facts and Procedural History

         [¶4] 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.

         [¶5] 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 her.[1] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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.

         [¶11] 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.

         [¶12] 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.

         [¶13] 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.

         [¶14] 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.

         [¶15] 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 dumpster.
** * * *
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.

         [¶16] 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 courtroom.

         [¶17] 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 four-month check-up).[2]

         [¶18] 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.

         [¶19] E.M. also testified about seeing a pillow on Janna's face on two occasions.[3] 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.

         [¶20] 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 ...

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