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Fairbanks v. State

Supreme Court of Indiana

March 27, 2019

Jeffrey Fairbanks, Appellant (Defendant)
State of Indiana, Appellee (Plaintiff)

          Argued: December 6, 2018

          Appeal from the Marion Superior Court, No. 49G03-1508-MR-30525 The Honorable Sheila A. Carlisle, Judge

          On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1707-CR-1675

          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



         In 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."

         Here, 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.

         And 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.

         Facts and Procedural History

         On the 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.

         One of 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."

         At some 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.

         Janna's 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.

         The 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.

         Officers searched extensively for Janna. They never found her body, but they did find the blanket that she had been wrapped in.

         Two 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.

         The 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.

         During 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.

         At 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.

         E.M. 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 ...

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