                                                                                      FILED
                                                                                  Aug 01 2018, 5:25 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      G. Allen Lidy                                              Curtis T. Hill, Jr.
      Lidy Law, PC                                               Attorney General
      Mooresville, Indiana                                       Laura R. Anderson
      John V. Siskopoulos                                        Deputy Attorney General
      Siskopoulos Law Firm, LLP                                  Indianapolis, Indiana
      Boston, Massachusetts



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jeffrey Fairbanks,                                         August 1, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1707-CR-1675
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Sheila A. Carlisle,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 49G03-1508-MR-30525



      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


      Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                           Page 1 of 37
      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.




      Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 2 of 37
                             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.




      1
       Citing page 44 of the transcript (Vol. III), Fairbanks claims that Yolanda testified that it was a “highly
      unusual event” for Janna not to wake up during her diaper change. Appellant’s Br. p. 7. Yolanda, however,
      did not testify to this.

      Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                      Page 3 of 37
      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

      Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 4 of 37
       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



       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 5 of 37
       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.




       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 6 of 37
[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


       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 7 of 37
       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):



       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 8 of 37
        [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.




Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 9 of 37
[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




       2
         The pediatrician testified that Janna had subconjunctival hemorrhages at her one-month checkup.
       According to the pediatrician, they are “small red spots in the white part of the eye that are kind of near the
       iris—they’re generally not very big—little red spots that indicate[] burst capillaries in the eyes.” Tr. Vol. III
       p. 232. They are caused by “[a]nything that causes increased pressure in the head,” such as “hitting the eye
       with something, or coughing very vigorously, or vomiting, or crying very vigorously.” Id. at 233.

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                            Page 10 of 37
       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.




       3
        Although it’s not entirely clear from the girls’ testimony, it appears that they testified to separate incidents
       of seeing a pillow on Janna’s face.

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                            Page 11 of 37
       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 Jeffrey Fairbanks knowingly killed Janna . . . .


               In reference to the neglect, we’ve proven that the defendant is
               Jeffrey. We’ve proven the fact that he is over 18 years of age.
               [We’ve] proven that he had the care and control of his own
               daughter, his own three-month-old baby.


               We’ve proven that Janna was a . . . dependent. She was less than
               14 years of age, [she was] 3 1/2 months.


               He did place her in a situation that endangered her life. By
               placing a pillow over her head, it would be hard to say that that
               wasn’t an unsafe environment. And then he went back to sleep,
               left her there. Left her like that.


               He left her unsupervised because he was sleepy, and it resulted in
               Janna’s death. He just wanted to shut her up.


               Any parent . . . would know not to put a pillow over a . . . three-
               month-old baby’s head.


       Tr. Vol. V pp. 31-32. Defense counsel argued that the State didn’t meet its

       burden of proof for either charge:

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 12 of 37
        Charging instrument—they have to prove that he knowingly
        killed the child. That’s murder. Murder.


        He didn’t murder this child. He loved this child. He didn’t
        neglect this child, right?


        They charged unsafe or unsupervised, right? She wasn’t
        unsupervised. He was in the bed.


        Now, they might get up and say well, . . . he’d sleep . . . through
        her. Well, okay. I find that interesting because if that’s the case,
        if you could never go to sleep as a parent, right, for fear that you
        would unsupervise your child, then none of us would ever sleep;
        right?


        She was supervised. He was in the same room; right?


        Was it unsafe? People sleep with their kids all the time. This is
        accidental. It’s an accident compounded by his stupidity of what
        he did with his own daughter (indicating). And . . . we have
        owned that; right? We told you we would own it.


                                               *****


        Their theory of it’s Jeffrey’s fault because we don’t have a body
        cuts both ways. Ladies and Gentlemen, they have not proven
        this case beyond all reasonable doubt. They haven’t given you a
        reason to convict Mr. Fairbanks, and you must find him not
        guilty on both charges (indicating).


Id. at 71-73.




Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 13 of 37
[21]   The jury found Fairbanks not guilty of murder but guilty of Level 1 felony

       neglect of a dependent resulting in death. The trial court sentenced Fairbanks

       to the advisory term of thirty years.


[22]   Fairbanks now appeals.4



                                     Discussion and Decision
[23]   Fairbanks raises several issues on appeal, which we restate as follows. First,

       Fairbanks contends that the evidence that he had previously placed a pillow

       over Janna’s face was inadmissible pursuant to Evidence Rule 404(b). Second,

       he contends that the prosecutor committed misconduct by presenting more than

       one theory to prove the neglect-of-a-dependent charge at trial. Third, he

       contends that juror misconduct occurred during trial when a juror used her

       phone to research police investigations and credibility, warranting a new trial.

       Finally, he contends that the neglect-of-a-dependent statute is void for

       vagueness.


                                         I. Evidence Rule 404(b)
[24]   The State argues that Fairbanks has not preserved the issue of whether the

       evidence that he had previously placed a pillow over Janna’s face was

       inadmissible pursuant to Evidence Rule 404(b) because defense counsel did not




       4
           We held oral argument in this case on July 9, 2018. We thank counsel for their presentations.


       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                           Page 14 of 37
       object when A.G. and E.M. testified at trial about the incidents. Right before

       trial started, and as the jury was about ready to enter the courtroom, defense

       counsel told the trial court that he would like to show a continuing objection to

       the pillow evidence. The State claims this wasn’t good enough because the

       court “never granted such request.” Appellee’s Br. pp. 20-21. This Court

       addressed the proper procedure for using continuing objections in Hayworth v.

       State, 904 N.E.2d 684 (Ind. Ct. App. 2009). We cautioned that if “the trial

       court does not specifically grant the right to a continuing objection, it is

       counsel’s duty to object to the evidence as it is offered in order to preserve the

       issue for appeal.” Id. at 692. Here, when defense counsel said he would like to

       show a continuing objection to the pillow evidence, the trial court said,

       “Okay,” and asked the State if it had a response. Tr. Vol. III p. 3. The State’s

       only response was to offer a stipulation on another matter. As the State was

       discussing the stipulation, the jury entered the courtroom. We find that the trial

       court’s response was sufficient to preserve this issue for appeal.


[25]   Proceeding to the merits, Evidence Rule 404(b) provides that evidence of a

       crime, wrong, or other act “is not admissible to prove a person’s character in

       order to show that on a particular occasion the person acted in accordance with

       the character,” but it “may be admissible for another purpose, such as proving

       motive, opportunity, intent, preparation, plan, knowledge, identity, absence of




       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 15 of 37
       mistake, or lack of accident.”5 Evidence Rule 403 provides, in turn, that

       evidence, even if relevant, should be excluded “if its probative value is

       substantially outweighed by a danger of one or more of the following: unfair

       prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

       presenting cumulative evidence.” Therefore, when the State seeks to use

       evidence of a crime, wrong, or other act, the court must (1) determine whether

       the evidence is relevant to a matter at issue other than the defendant’s

       propensity to commit the charged act and, if so, (2) balance the probative value

       of the evidence against its prejudicial effect. Hicks v. State, 690 N.E.2d 215, 221

       (Ind. 1997). We review a trial court’s ruling for an abuse of discretion. Spencer

       v. State, 703 N.E.2d 1053, 1057 (Ind. 1999).


[26]   At trial, the State sought to use evidence of the prior pillow incidents to prove

       that Janna’s death was not an accident. But Fairbanks highlights that he has

       never claimed that Janna’s death was an accident; rather, he has consistently

       maintained that he doesn’t know how she died. See Tr. Vol. V pp. 82-83 (State

       acknowledging during closing argument that Fairbanks never said how Janna

       died). Fairbanks argues that evidence of a crime, wrong, or other act is

       admissible to prove lack of accident only if the defendant first claims accident.

       The State responds that “[c]ontrary to [Fairbanks’s] argument, a defendant does

       not need to affirmatively advance a contrary claim of accident prior to the




       5
         Evidence Rule 404(b) previously referenced “absence of mistake or accident.” The rule was amended
       effective January 1, 2014, to separately reference “absence of mistake, or lack of accident.”

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                   Page 16 of 37
       State’s introduction of prior bad act evidence.” Appellee’s Br. p. 21. The State

       asserts that “lack of accident” is not like “intent,” which is only available when

       a defendant goes beyond merely denying the charged culpability and

       affirmatively presents a claim of particular contrary intent. See Wickizer v. State,

       626 N.E.2d 795, 799 (Ind. 1993).


[27]   An accused can be said to have raised a claim of particular contrary intent

       through pretrial statements to police, opening statement, cross-examination of

       the State’s witnesses, or evidence in the defendant’s case in chief. Lafayette v.

       State, 917 N.E.2d 660, 663 (Ind. 2009); 12 Robert L. Miller, Indiana Practice,

       Indiana Evidence, § 404.214 (4th ed. 2016). Absence of mistake and lack of

       accident have been described as a more specialized application of the broader

       category of intent. See 22B Charles Alan Wright, Federal Practice and Procedure, §

       5255 (2d ed. 2014); see also Wages v. State, 863 N.E.2d 408, 412 (Ind. Ct. App.

       2007) (explaining that absence of mistake and lack of accident have been

       described as “simply a special form of the exception that permits the use of

       other crimes to prove intent” (quotations omitted)), reh’g denied, trans. denied.

       Although the Indiana Supreme Court has held that the concerns that led them

       in Wickizer to adopt a narrow construction of the intent purpose do not apply to

       all of the 404(b) purposes, Hicks, 690 N.E.2d at 222 n.12; Goodner v. State, 685

       N.E.2d 1058, 1061 (Ind. 1997), the Court “has not stated definitively whether

       [this] approach applies when the prosecution seeks to offer extrinsic act

       evidence to prove an intermediate inference (such as . . . absence of mistake or



       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 17 of 37
       accident) leading to an ultimate inference of intent,” 12 Miller, § 404.214

       (emphasis added).


[28]   In short, there is no clear-cut answer under Indiana law whether a defendant

       must affirmatively claim mistake or accident before the State can admit

       evidence pursuant to Evidence Rule 404(b) that the act was not a mistake or

       accident. This Court recognized as much in Wages: “It is unclear whether,

       under the ‘absence of mistake or accident’ prong of Rule 404(b), the defendant

       must first affirmatively claim that he or she did something mistakenly or

       accidentally before the State can invoke that prong to introduce evidence of

       other wrongs.” 863 N.E.2d at 412 n.3 (citing McCloud v. State, 697 N.E.2d 96

       (Ind. Ct. App. 1998)). According to the Indiana Practice, the absence-of-

       mistake and lack-of-accident purposes apply “most frequently when the

       defendant asserts a set of facts explaining the charged conduct as accidental or

       based on a mistake.” 12 Miller, § 404.229 (emphasis added). Indeed, a survey

       of the cases where evidence has been admitted pursuant to Evidence Rule

       404(b)’s absence-of-mistake and lack-of-accident purposes reveals that, in the

       vast majority of the cases, the defendant has affirmatively claimed that the act

       was a mistake or accident. See Scalissi v. State, 759 N.E.2d 618, 623 (Ind. 2001)

       (holding that evidence that the defendant had raped the victim’s companion

       was admissible under lack of accident to rebut the defendant’s claim that he

       accidentally shot the victim); Clemens v. State, 610 N.E.2d 236, 242 (Ind. 1993)

       (“The purpose specified above, to show the absence of mistake or accident,

       seems tailor-made to allow the admission of evidence of [the defendant’s] abuse

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 18 of 37
of Jordan to rebut his claim that accidental injuries were the cause of the other

twin’s death.”), reh’g denied; Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App.

2004) (holding that evidence of the defendant’s violence toward the victim was

admissible under lack of accident to combat the defendant’s claim that “[t]he

gun went off by itself”); Craun v. State, 762 N.E.2d 230, 237 (Ind. Ct. App.

2002) (holding that evidence that the defendant had allegedly molested other

girls was not admissible under lack of accident because the defendant “never

stated that he touched [the victim’s] vagina, either accidentally or

intentionally”), trans. denied; Brown v. State, 684 N.E.2d 529, 535-36 (Ind. Ct.

App. 1997) (holding that other incidents of ghost employment were admissible

under lack of accident to rebut the defendant’s claim that his conduct was the

result of youth and inexperience), trans. denied; Brown v. State, 659 N.E.2d 652,

655-56 (Ind. Ct. App. 1995) (holding that evidence that the defendant had

previously battered the victim was admissible under lack of accident to combat

the defendant’s claim that the shooting was “an accident”), trans. denied; but see

Nicholson v. State, 963 N.E.2d 1096, 1100 (Ind. 2012) (holding that the

defendant’s 2006 voyeurism conviction involving the victims was admissible in

his newest trial involving the same victims in order to prove “absence of

mistake” because it showed that he knew “the exact home he was targeting

[and] . . . that he was not dialing a random number but the same phone number

he dialed in 2006” even though it does not appear from the opinion that

defendant made such claims at trial). Indeed, the State conceded at oral

argument that it had not found a case where the State admitted evidence under

Evidence Rule 404(b) that the act was not a mistake or accident when the
Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 19 of 37
       defendant had not made such a claim.6 Oral Arg. Video at 34:00. We thus find

       that accident and mistake are a subset of intent, in that a defendant who claims

       mistake or accident is necessarily claiming that the act was not intentional.

       Accordingly, we conclude that, similar to intent, defendants must affirmatively

       claim mistake or accident before the State can admit evidence pursuant to

       Evidence Rule 404(b) that the act was not a mistake or accident.


[29]   As for whether Fairbanks affirmatively claimed accident during his pretrial

       statements to police, opening statement, cross-examination of the State’s

       witnesses, or evidence in the defendant’s case in chief, we note that Fairbanks

       got very close to the line several times when he said he didn’t know what

       happened to Janna and that he didn’t do anything wrong. Fairbanks told police

       during his interview that when he realized that Janna was dead, he panicked

       and tried to think through what could have happened. He then explained that

       the “only” thing he could think of was that he “rolled over on her,” but it didn’t

       look like he did given their positions in the bed when he woke up. The State

       argues that Fairbanks then crossed that line during his WTHR interview, which

       was admitted into evidence at trial. See Oral Arg. Video at 35:30. During that

       interview, Fairbanks was asked why he discarded his daughter’s body in the

       dumpster. Fairbanks responded that “you never know what you are going to

       do when you are faced with the loss of a loved one that’s that close to you.”



       6
         We disagree with the State’s argument that Stettler v. State, 70 N.E.3d 874 (Ind. Ct. App. 2017), trans. denied,
       stands for the proposition that a defendant does not need to affirmatively claim mistake or accident before the
       State can admit evidence that the act was not a mistake or accident.

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                           Page 20 of 37
       Ex. 56 (8:09). Fairbanks said he might have reacted differently if he “had

       known why” Janna died. Id. (8:18). He then explained that at that point in

       time, he really didn’t know much about “SIDS,” “roll-over deaths,” and “all

       the things that can happen.” Id. (8:23).


[30]   In addition, defense counsel cross-examined the pediatrician about the dangers

       of co-sleeping. The pediatrician testified that it was important not to co-sleep

       because “someone could roll on the baby, or they could accidentally get

       smothered against someone at night.” Tr. Vol. IV p. 5. When asked if she was

       aware that Janna was co-sleeping with her parents, the pediatrician said no and

       highlighted that Yolanda had told the medical assistant at both of Janna’s

       appointments that Janna slept in her own bed. While this is not overwhelming

       evidence that Fairbanks affirmatively claimed accident, it is sufficient. If there

       was any doubt whether Fairbanks claimed accident during trial, that doubt was

       extinguished when defense counsel argued during closing that what happened

       to Janna was, in fact, an “accident.” In particular, defense counsel argued:

       “Was it unsafe? People sleep with their kids all the time. This is accidental.

       It’s an accident compounded by [Fairbanks’s] stupidity [of discarding Janna’s

       body in a dumpster].” Tr. Vol. V p. 72.


[31]   The prejudicial effect of the pillow evidence does not substantially outweigh its

       probative value. See Hicks, 690 N.E.2d at 221, 223. This is so because

       Fairbanks himself admitted putting a pillow (albeit briefly) on Janna to muffle

       her on the day that she died. In addition, the prior pillow incidents that the

       girls testified about did not result in physical harm to Janna, as the pillow was

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 21 of 37
       removed. Accordingly, we find that the pillow evidence was admissible under

       Evidence Rule 404(b)’s lack-of-accident purpose.


[32]   But even if we found that the pillow evidence was not admissible under

       Evidence Rule 404(b)’s lack-of-accident purpose and that the trial court

       therefore erred by admitting it, the error was harmless. An error is harmless

       when it results in no prejudice to the “substantial rights” of a party. Durden v.

       State, 99 N.E.3d 645, 652 (Ind. 2018). The basic premise of the harmless-error

       rule “holds that a conviction may stand when the error had no bearing on the

       outcome of the case.” Id. To determine whether an error in the introduction of

       evidence affected the defendant’s substantial rights, we assess the probable

       impact of that evidence upon the jury considering all the other evidence that

       was properly presented. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). If we

       are satisfied that the conviction is supported by independent evidence of guilt

       such that there is no substantial likelihood that the challenged evidence

       contributed to the verdict, the error is harmless. Id.


[33]   Here, there is substantial independent evidence that Fairbanks knowingly

       placed Janna in a situation that endangered her life or health (by placing and/or

       leaving Janna in an unsafe and/or unsupervised environment), resulting in her

       death. Appellant’s App. Vol. II p. 17. Fairbanks was alone with Janna in the

       bedroom from 4:15 a.m. to 1:30 p.m. Fairbanks admitted putting a pillow on




       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 22 of 37
Janna while he changed her diaper because she was crying.7 When Fairbanks

briefly woke up A.G. around 8 a.m. to tell her that he would be home that day

after all, A.G. heard Janna’s regular cries. Fairbanks then went back to sleep

(sharing a bed with Janna) and didn’t wake up again until 1:30 p.m. When

A.G. woke up for good around 11 a.m. (which is when Fairbanks claimed to

have been sleeping), she heard Janna’s muffled cries. About twenty minutes

later, A.G. heard Janna’s muffled cries again when she went upstairs to use the

bathroom. When Fairbanks woke up at 1:30 p.m., Janna was limp and lifeless

and her lips were blue. Fairbanks drove around with Janna’s body for several

hours and eventually discarded her body in a dumpster. Throughout the day,

Fairbanks avoided Yolanda’s phone calls, and when he finally returned home

around 11:30 p.m., he told Yolanda and the girls that he had buried Janna’s

body in a cornfield (but he wouldn’t tell them where). Notably, Fairbanks did

not want police called that night and threatened Yolanda. When police came

to their house the next morning, Fairbanks claimed that he didn’t know where

Janna was. And during the first part of his interview with police, Fairbanks

continued to claim that he didn’t know where Janna was. By the time

Fairbanks directed police to the dumpster, it had been emptied, and Janna’s

body was never found. A reasonable inference from this evidence is that




7
  Fairbanks emphasizes that he only admitted briefly placing a pillow on Janna. The State responds that the
jury was free to choose what portions of Fairbanks’s statements to believe and that the jury could have
disbelieved Fairbanks when he said he removed the pillow “right away” and instead found that Fairbanks left
the pillow on her.



Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                     Page 23 of 37
       Fairbanks knowingly placed Janna in a situation that endangered her life or

       health, resulting in her death. Given this evidence, we are convinced that the

       jury would have reached the same result even if it had not learned about the

       prior pillow incidents.8


                                  II. Prosecutorial Misconduct
[34]   Fairbanks next contends that the prosecutor committed misconduct by

       presenting more than one theory to prove the neglect-of-a-dependent charge at

       trial. When reviewing a claim for prosecutorial misconduct that has been

       properly preserved, we determine “(1) whether the prosecutor engaged in

       misconduct, and if so, (2) whether the misconduct, under all of the

       circumstances, placed the defendant in a position of grave peril to which he or

       she would not have been subjected otherwise.” Ryan v. State, 9 N.E.3d 663, 667

       (Ind. 2014), reh’g denied. To properly preserve a claim of prosecutorial

       misconduct, the defense must, at the time of the alleged misconduct, raise a

       contemporaneous objection and request an admonishment; if the




       8
        Fairbanks also challenges his conviction on the ground that the State presented insufficient evidence.
       Given our conclusion that the unchallenged evidence was strong enough to render harmless any 404(b) error,
       we need not separately address the sufficiency argument.

       On a related note, Fairbanks argues that the State committed prosecutorial misconduct because “[t]he
       prosecution’s unreasonable, distorted theory that he placed a pillow over his child to get some more sleep is
       not a reasonable inference from the record, but rather a concocted claim by the prosecution to underpin a
       conviction based on speculation.” Appellant’s Br. p. 28. This, however, is merely a rephrasing of
       Fairbanks’s sufficiency argument. Given our conclusion that the evidence is sufficient to support Fairbanks’s
       conviction, this argument fails.




       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                       Page 24 of 37
       admonishment is not given or is insufficient to cure the error, the defense must

       request a mistrial. Thomas v. State, 9 N.E.3d 737, 742 (Ind. Ct. App. 2014).

       Failure to preserve a claim of prosecutorial misconduct results in waiver of the

       issue on appeal. Ryan, 9 N.E.3d at 667.


[35]   To be successful on such a claim, the defendant must establish the grounds for

       prosecutorial misconduct and that the alleged misconduct was so prejudicial

       that the trial court committed fundamental error by failing to sua sponte declare

       a mistrial. Id. at 667-68. Fundamental error is “an extremely narrow

       exception” to the waiver rule. Id. at 668. “[T]he defendant faces the heavy

       burden of showing that the alleged errors are so prejudicial to the defendant’s

       rights as to make a fair trial impossible.” Id. (quotations omitted). Stated

       another way, to prevail under our fundamental-error analysis, the defendant

       must show that “under the circumstances the trial judge erred in not sua sponte

       raising the issue because [the] alleged errors (a) constitute clearly blatant

       violations of basic and elementary principles of due process and (b) present an

       undeniable and substantial potential for harm.” Id. (quotations omitted). We

       review the alleged misconduct and all relevant information given to the jury to

       determine whether the alleged misconduct “had such an undeniable and

       substantial effect on the jury’s decision that a fair trial was impossible.” Id.

       (emphasis omitted).


[36]   Fairbanks claims that the State engaged in misconduct by confusing the jury as

       to its theory for the neglect-of-a-dependent charge. Fairbanks notes that during

       opening statement the State argued that he did not “seek[] help” for Janna and

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 25 of 37
left her “unsupervised” and “for dead.” Tr. Vol. III p. 16 (State arguing that

Fairbanks “drove by a fire station multiple times” and “didn’t go to the

hospital”). However, Fairbanks notes that during closing argument, the State

argued that he killed Janna by placing a pillow over her head and leaving the

pillow on her while he slept. Fairbanks raised this argument in a motion for

judgment on the evidence but did not ask for a mistrial based on prosecutorial

misconduct. See Tr. Vol. V pp. 6-7 (“The State’s theory on opening was pretty

clear, that he failed to render assistance for the child. That is a completely

contrary theory to the charge that we are now here for, that the Defense was on

notice of. . . . Even if they were advancing the theory that they charged, there is

a complete lack of evidence to support the claim for which they’ve charged.

And so for those reasons, we’re moving for a judgment on the evidence . . . .”).

The trial court denied Fairbanks’s motion for judgment on the evidence because

the neglect charging information generally aligned with the State’s pillow

theory and there was “enough evidence” to present that count as charged to the

jury. Id. at 7-8. That is, the charging information 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 (by

placing and/or leaving Janna in an unsafe and/or unsupervised environment),

which resulted in her death. Appellant’s App. Vol. II p. 17. The jury was

instructed on this as well. See id. at 241, 243-44. Even assuming that the State

alleged a different theory in its opening statement than it presented during

closing, the theory that the State submitted to the jury at the end of the case

aligned with the charging information and is supported by the evidence
Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 26 of 37
       presented at trial. And there is no rule that prevents the State from presenting

       the jury with alternate ways to find the defendant guilty as to one element. See

       Baker v. State, 948 N.E.2d 1169, 1175 (Ind. 2011) (jury-unanimity case), reh’g

       denied. Accordingly, Fairbanks has not proven that the alleged misconduct was

       so prejudicial that the trial court committed fundamental error by failing to sua

       sponte declare a mistrial.9


                                                III. Jury Taint
[37]   Fairbanks next contends that juror misconduct occurred during trial when a

       juror used her phone to research police investigations and credibility,

       warranting a new trial under the Indiana Supreme Court’s decision in Ramirez

       v. State, 7 N.E.3d 933 (Ind. 2014). An impartial jury is the cornerstone of a fair

       trial, guaranteed by the Sixth Amendment of the United States Constitution

       and Article 1, Section 13 of the Indiana Constitution. Id. at 936. To preserve

       impartiality and prevent taint, we prohibit unauthorized contacts and

       communications with jurors. Id. “Yet no trial is perfect, and we have long held

       that ‘[w]hile courts have a duty to ensure an impartial jury . . . jurors need not

       be absolutely insulated from all extraneous influences . . . .’” Id.

       (quoting Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819, 823 (1973)). We




       9
        Fairbanks also claims that the State engaged in misconduct by violating the “rules of evidence” during its
       questioning of A.G. (by using leading questions) and during its questioning of E.M. (by using hearsay).
       Although Fairbanks objected at trial, he did so on evidentiary grounds and did not request a mistrial based on
       prosecutorial misconduct. Neither of these instances amounts to prosecutorial misconduct.



       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018                       Page 27 of 37
       therefore entrust trial courts with the difficult responsibility of discerning when

       extraneous influences become irreparable taint warranting a new trial. Id.


[38]   Our Supreme Court clarified in Ramirez the procedure trials courts are to follow

       in handling instances of juror misconduct. Defendants seeking a mistrial for

       suspected jury taint are entitled to the presumption of prejudice only after

       making two showings, by a preponderance of the evidence: (1) extra-judicial

       contact or communications between jurors and unauthorized persons occurred

       and (2) the contact or communications pertained to the matter before the jury.

       Id. at 939. The burden then shifts to the State to rebut this presumption of

       prejudice by showing that any contact or communications were harmless. Id.

       If the State does not rebut the presumption, the trial court must grant a new

       trial. Id.


[39]   Here, during trial, defense counsel notified the court that his law clerk, who was

       a certified intern, overheard a juror “playing something on [her] phone about

       police investigations or credibility or something.” Tr. Vol. III p. 80. The juror

       was alone in the hallway outside the courtroom at the time. The prosecutor

       also saw the juror in the hallway—which the prosecutor thought was

       “shocking” since the witnesses were out there as well, id. at 81—but the

       prosecutor did not hear the juror playing anything on her phone. According to

       defense counsel, “There wasn’t anything specifically about Mr. Fairbanks or

       this case. [My law clerk] has indicated it sounded more like . . . a YouTube

       video that . . . you would go to, a how-to or something.” Id. When the court

       asked defense counsel if he wanted the court to address the matter with the

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 28 of 37
       juror, defense counsel expressed reluctance. That is, defense counsel believed

       that his law clerk was the only one who heard this, and he appeared to be

       concerned about the consequences to the defense if the juror was questioned but

       then remained on the panel. Id. at 82. Again, the court asked defense counsel

       exactly what he was requesting. Defense counsel responded:


               [Defense Counsel]: Judge, I – I’m not making a formal request at
               the time, just bringing that to the Court’s attention.


               [Trial Court]: Okay. Well, the Court is willing to address it with
               the juror if the Defense wants. But I’ve just heard one reason
               why it sounds like you don’t want that to occur. But I don’t want
               anything unclear in this record. Do you want me to address it
               with this juror?


               [Defense Counsel]: Not at this time, unless something else comes
               up, Judge.


       Id. at 83-84.


[40]   Fairbanks is not entitled to relief under Ramirez. Ramirez applies only

       “whenever [d]efendants seek[] a mistrial for suspected jury taint.” Wahl v. State,

       51 N.E.3d 113, 116 (Ind. 2016), reh’g denied; see also Ramirez, 7 N.E.3d at 940

       (“Once defendants move for mistrial, trial courts should assess whether or not

       there is enough evidence to meet the two-part showing . . . .” (emphasis

       added)). Fairbanks, however, did not seek a mistrial. Cf. Bisard v. State, 26

       N.E.3d 1060, 1067-68 (Ind. Ct. App. 2015) (the defendant moved for mistrial

       upon learning that a juror had performed an internet search on the reliability of


       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 29 of 37
       blood tests; we affirmed the trial court’s remedy of replacing the juror with an

       alternate as opposed to the more extreme remedy of declaring a mistrial), trans.

       denied.


[41]   Moreover, Fairbanks rejected the trial court’s offer to question the juror. He

       thus invited any error relating to the court’s failure to question the juror. See

       Durden, 99 N.E.3d at 656 (finding that the defendant invited the structural error

       of the trial court’s constitutionally defective procedure for removing and

       replacing a juror after deliberations had begun by expressly declining “any

       caveats” or special instructions for the jury and repeatedly assuring the court of

       his approval of the procedure employed, despite its defects). Fairbanks is not

       entitled to a new trial based on juror misconduct.


                        IV. Constitutionality of Neglect Statute
[42]   Last, Fairbanks contends that the neglect-of-a-dependent statute is

       “unconstitutionally void for vagueness.” Appellant’s Br. p. 31. Fairbanks,

       however, did not make this constitutional challenge below by way of a motion

       to dismiss; accordingly, the State argues that he has waived this argument. But

       because appellate courts have the discretion to consider constitutional

       challenges even when the defendant has failed to file such a motion, see McBride

       v. State, 94 N.E.3d 703, 709-710 (Ind. Ct. App. 2018) (citing cases), we address

       Fairbanks’s argument.


[43]   A challenge to the validity of a statute must overcome a presumption that the

       statute is constitutional. Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007).

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 30 of 37
[44]   Due-process principles provide that a penal statute is void for vagueness if it

       does not clearly define its prohibitions. Id. A criminal statute may be

       invalidated for vagueness for two reasons: (1) for failing to provide notice

       enabling ordinary people to understand the conduct that it prohibits or (2) for

       the possibility that it authorizes or encourages arbitrary or discriminatory

       enforcement. Id. “[T]here must be something in a criminal statute to indicate

       where the line is to be drawn between trivial and substantial things so that

       erratic arrests and convictions for trivial acts and omissions will not occur. It

       cannot be left to juries, judges, and prosecutors to draw such lines.” Id.

       (quotation omitted). A statute “is not void for vagueness if individuals of

       ordinary intelligence could comprehend it to the extent that it would fairly

       inform them of the generally proscribed conduct.” Id. (quotation omitted).

       And the statute does not have to list specifically all items of prohibited conduct;

       rather, it must inform the individual of the conduct generally proscribed. Id.

       The examination of a vagueness challenge is performed in light of the facts and

       circumstances of each individual case. Id.


[45]   Fairbanks challenges the following portion of the neglect statute: “places the

       dependent in a situation that endangers the dependent’s life or health.” I.C. §

       35-46-1-4(a)(1). He argues:


               The prosecution argued that sleeping fits the statutory definition
               of neglect. Specifically, the prosecution argued: “So the child is
               not supervised for hours. Just because he’s in the room—if he’s
               asleep, he can’t supervise.” Tr. Vol. V, p. 8. Clearly, the
               prosecution’s argument that a parent can be prosecuted for
               sleeping attempts to criminalize normal behavior. The statute
       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 31 of 37
               provides that the mere presence of an adult when a minor dies
               results in a criminal act. This is far too liberal of a standard for
               the basis of any statute in the criminal code.


       Appellant’s Br. p. 32. But Fairbanks’s starting premise is wrong; the State did

       not argue that it’s a crime for a parent to sleep. Rather, the State argued that

       Fairbanks placed Janna in an unsafe environment by placing a pillow on her

       and then going to sleep while he left the pillow on her:


               In reference to the neglect count, we have proven that the
               defendant placed Janna . . . in an unsafe environment. The
               unsafe environment is that at around eight o’clock in the
               morning, . . . we believe he placed a pillow over her head, and
               somewhere along the line, he went back to sleep. And he, in his
               own testimony . . ., he says he doesn’t wake up until 1:30. So the
               child is not supervised for hours. Just because he’s in the room—
               if he’s asleep, he can’t supervise.


       Tr. Vol. V pp. 7-8. In short, this is the difference between putting an infant to

       sleep in a safe environment and then going to sleep versus putting an infant to

       sleep in an unsafe environment and then going to sleep. Only one of these can

       be considered neglectful. There is no merit to Fairbanks’s constitutional

       challenge to the neglect statute.


[46]   Affirmed.


       Barnes, Sr. J., concurs.


       Pyle, J., concurs in result with separate opinion.



       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018      Page 32 of 37
       ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
       G. Allen Lidy                                              Curtis T. Hill, Jr.
       Lidy Law, PC                                               Attorney General
       Mooresville, Indiana                                       Laura R. Anderson
       John V. Siskopoulos                                        Deputy Attorney General
       Siskopoulos Law Firm, LLP                                  Indianapolis, Indiana
       Boston, Massachusetts



                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Jeffrey Fairbanks,                                         August 1, 2018
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  49A02-1707-CR-1675
               v.                                                 Appeal from the Marion Superior
                                                                  Court
       State of Indiana,                                          The Honorable Sheila A. Carlisle,
       Appellee-Plaintiff                                         Judge
                                                                  Trial Court Cause No.
                                                                  49G03-1508-MR-30525



       Pyle, Judge, concurring in result with opinion.


[47]   I concur with my colleagues’ decision to affirm Fairbanks’ conviction for

       neglect of a dependent resulting in death. However, my journey to our decision

       takes a short, but important, detour regarding whether Fairbanks properly

       preserved a request for a continuing objection as an issue for appeal. My review

       of the record reveals that the motion for a continuing objection was made, but

       the trial court never ruled on the motion. As a result, I believe the issue was

       waived.

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018              Page 33 of 37
[48]   Continuing objections serve a useful purpose. “That is, they avoid the futility

       and waste of time inherent in requiring repetition of the same unsuccessful

       objection each time evidence of a given character is offered.” Hayworth v. State,

       904 N.E.2d 684, 692 (Ind. Ct. App. 2009). As my colleagues ably point out, the

       procedure for requesting a continuing objection has been established, and

       “must be carefully followed if attorneys wish to use continuing objections and

       still properly preserve the admission of specific evidence as an issue on appeal.”

       Id. (emphasis added). First, the attorney objecting to the proffered evidence

       must ask that the trial court “consider the same objection to be made and

       overruled each time a class of evidence is offered.” Id. The trial court may

       grant or deny the attorney’s request. Generally, a party must make an objection

       and receive a ruling to each and every piece of evidence believed to be

       inadmissible. Id. However, a continuing objection is an exception. Id. If the

       trial court grants the request for a continuing objection, then the attorney “does

       not have to object each time the class of evidence is subsequently offered.” Id.

       “If, however, the trial court does not specifically grant the right to a continuing

       objection, it is counsel’s duty to object to the evidence as it is offered in order to

       preserve the issue for appeal.” Id. (emphasis added); see also Ind. Evid. R.

       103(b) (“Once the court rules definitively on the record at trial a party need not

       renew an objection or offer proof to preserve a claim of error for appeal.”)

       (emphasis added). “Error can only be predicated on questions presented to and

       ruled upon by the trial court.” Wells v. State, 441 N.E.2d 458, 463 (Ind. 1982)

       (emphasis added).


       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 34 of 37
[49]   In considering whether the trial court specifically granted Fairbanks’ request for

       a continuing objection, it is helpful to reproduce the colloquy surrounding the

       request:


               [Defense Counsel]:                 I think the only other issue we had is we
                                                  would – just to make our record clean,
                                                  we would move to incorporate the
                                                  hearings – the hearing and the
                                                  subsequent ruling by the Court on 3/29
                                                  and the Court’s order from April 13,
                                                  2017.

                                                  As well as the parties agree to
                                                  stipulation – two stipulations, I believe.
                                                  One is just a matter of law, that the
                                                  State and Defense have gotten together
                                                  and redacted several portions of
                                                  defendant’s statements. And we agree
                                                  on those redactions.

                                                  We subsequently agreed that as a
                                                  matter of law, that doesn’t open the
                                                  door – the State can’t open the door
                                                  itself to the matters decided by the
                                                  Court, specifically the 404(b) and 401,
                                                  403 issues that the Court decided in its
                                                  order on 4/13.

                                                  And finally, Judge, we would like to
                                                  show a continuing – continuing
                                                  objection to the pillow evidence that the
                                                  Court denied in 3(G)(2) of the Motion
                                                  in Limine. I can object, obviously, at
                                                  the time, but just wanted to show a
                                                  continuing objection to that evidence.

               The Court:                         Okay. Anything in response?

               [Deputy Prosecutor]:               I just have this – the stipulation that the
                                                  defense wanted us to do.             It’s a
                                                  stipulation to a matter of law, so it’s not

       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018          Page 35 of 37
                                                  to be read to the jury. It’s in reference
                                                  to the redactions. They’re going to get
                                                  transcripts. We’ve agreed that they get
                                                  the transcripts and will be watching the
                                                  video. But, of course, the transcripts
                                                  have huge amounts of blacked out
                                                  parts. And so –

                                                  (Jury returned into open court at 1:01
                                                  p.m.)

               The Court:                         Welcome back. If you’d all remain
                                                  standing with me, the jurors that is.
                                                  Everyone else in the courtroom may be
                                                  seated.

                                                  Now that you’ve been selected to serve
                                                  as our jury, I need to give you the oath
                                                  to serve. If you’d all raise your right
                                                  hands.

                                                  (Oath administered to jury)

       Tr. Vol. III pp. 2-4. The trial proceeded without the trial court ruling on the

       request for a continuing objection. I do not believe the trial court’s utterance of

       the word “Okay” was in any way related to a ruling on the motion. The trial

       court was simply acknowledging the request had been made, it sought a response

       from the State, and was interrupted by the entry of the jury into the courtroom

       before it could make a ruling. As a result, the issue was neither ruled upon nor

       preserved for appeal.


[50]   Nevertheless, we may still consider this issue if Fairbanks can show that the

       admission of the testimony regarding the prior pillow incidents amounted to

       fundamental error. “The fundamental error doctrine is an exception to the


       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018        Page 36 of 37
       general rule that the failure to object at trial constitutes a procedural default

       precluding consideration of an issue on appeal.” Jewell v. State, 887 N.E.2d 939,

       940 n.1 (Ind. 2008). Our supreme court has noted that on rare occasions, we

       may use the fundamental error doctrine “to address on direct appeal an

       otherwise procedurally defaulted claim. But fundamental error is extremely

       narrow and available only when the record reveals a clearly blatant violation of

       basic and elementary principles, where the harm or potential for harm cannot

       be denied, and which violation is so prejudicial to the rights of the defendant as

       to make a fair trial impossible.” Id. at 942.


[51]   For the reasons expressed by my colleagues above, I do not believe Fairbanks

       has shown that the admission of the pillow evidence constitutes fundamental

       error. As a result, I rejoin my colleagues and concur in the reasoning and

       holding as to all other issues.




       Court of Appeals of Indiana | Opinion 49A02-1707-CR-1675 | August 1, 2018   Page 37 of 37
