Argued: December 6, 2018
from the Marion Superior Court, No. 49G03-1508-MR-30525 The
Honorable Sheila A. Carlisle, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANT G. Allen Lidy Lidy Law, PC
Mooresville, Indiana, Robert E. Saint Emswiller, Williams,
Noland & Clarke, LLC Indianapolis, Indiana, John V.
Siskopoulos Siskopoulos Law Firm, LLP Boston, Massachusetts
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana, Laura R. Anderson Tyler G. Banks Deputy Attorneys
General Indianapolis, Indiana
criminal cases, Indiana Evidence Rule 404(b)'s purpose is
to prevent the jury from indulging in the "forbidden
inference"-that a defendant must be guilty of the
charged crime because, on other occasions, he acted badly. To
achieve this purpose, Rule 404(b) prohibits the State from
introducing evidence of other bad acts to show a
defendant's propensity to commit a crime. But the Rule
permits this evidence for other purposes, including to show
"lack of accident."
to prove that the death of Jeffrey Fairbanks's infant
daughter was not an accident, the State introduced evidence
at Fairbanks's trial that he had, on prior occasions,
used a pillow to muffle the baby's crying. We hold that
admitting this evidence was not improper under Rule 404(b)
because the State had "reliable assurance"-in
statements Fairbanks made before trial to police and to news
outlets-that he would raise an accident defense at trial.
since the evidence's prejudicial impact did not
substantially outweigh its probative value, the trial court
did not abuse its discretion in admitting the evidence. We
therefore affirm Fairbanks's conviction for felony
neglect of a dependent resulting in death.
and Procedural History
morning of May 28, 2015, three-month-old Janna was asleep in
a king-size bed with her father, Jeffrey Fairbanks.
Janna's mother had left for work, leaving the infant in
Fairbanks's care. At the time, Janna's half-sisters
were home, too.
the half-sisters, A.G., heard Janna crying three separate
times. The first time, A.G. heard Janna cry "like a
regular baby would cry." The next two times, though,
A.G. thought the cries "sounded muffled."
point in the day, Janna died, and Fairbanks left the house
with his daughter's body wrapped in a blanket. He
returned, alone, late that night.
mother and half-sisters immediately asked about the
infant's whereabouts. Fairbanks said that Janna was dead
and that he had buried her in a cornfield. He never told them
how the baby died.
next day, police questioned Fairbanks, and he told officers
that he put Janna's body in a dumpster. Fairbanks
admitted that, during an early morning diaper change, he had
placed a pillow over the baby to "muffle her"-but
that he took the pillow off "right away" and that
they both eventually went back to sleep. He claimed that he
later woke up, realized Janna was "already gone,"
and panicked. Fairbanks stated that it didn't look like
he had "rolled over on" the infant, but it was
"the only thing [he] could think of" when trying to
figure out what happened.
searched extensively for Janna. They never found her body,
but they did find the blanket that she had been wrapped in.
media outlets then interviewed Fairbanks. In these
interviews, Fairbanks again admitted that he had taken his
daughter's body to a dumpster. He claimed that he had
woken up in the afternoon to find the baby limp and lifeless
and that he didn't know why. In response to some
questions, Fairbanks said he didn't know much about
"roll-over deaths" but that he didn't think he
had rolled onto Janna.
State charged Fairbanks with murder and felony neglect of a
dependent resulting in death. Before trial, both the State
and the defense brought up the admissibility of certain
evidence-including testimony that, on previous occasions,
Fairbanks had placed a pillow over Janna. The State asserted,
in its notice of intent to use 404(b) evidence, that the
pillow evidence was admissible; but Fairbanks, in his motion
in limine, argued it was not.
a hearing on the matter, the State argued, in part, that it
needed the pillow evidence to show that Janna's death
wasn't an accident, making the testimony admissible under
Indiana Evidence Rule 404(b). In response, the defense
contended that the pillow evidence was both unreliable and
highly prejudicial-but never stated that Fairbanks wasn't
going to raise an accident defense. Ultimately, the trial
court agreed with the State's position and denied
Fairbanks's request to exclude the evidence.
trial, half-sisters A.G. and E.M. testified about the prior
pillow incidents. A.G. testified that she had seen Fairbanks
put a pillow on Janna's face "[t]wo or three
times" and that Fairbanks had said the pillow would stop
Janna's cries, relax her, and put her to sleep. A.G. also
testified that the crying she had heard on these prior pillow
occasions was the same as the muffled crying she heard on the
day of Janna's death.
then testified that she had twice seen a pillow over
Janna's face when Fairbanks was taking care of the baby.
One of the times, E.M. asked Fairbanks why Janna had a pillow
on her face, and Fairbanks responded that the infant, who was