                                                              FILED
                                                         Mar 27 2019, 12:28 pm

                                                              CLERK
                                                          Indiana Supreme Court
                                                             Court of Appeals
                                                               and Tax Court



                      IN THE

Indiana Supreme Court
         Supreme Court Case No. 18S-CR-604

                Jeffrey Fairbanks,
                 Appellant (Defendant)

                          –v–

                 State of Indiana,
                   Appellee (Plaintiff)


  Argued: December 6, 2018 | Decided: March 27, 2019

        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



             Opinion by Chief Justice Rush
    Justices David, Massa, Slaughter, and Goff concur.
   Rush, Chief Justice.

   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.




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  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




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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 around two months old at the time, had maybe
placed it there herself.

   Also among the testifying witnesses was a pediatrician who had
previously examined Janna and who had reviewed the baby’s medical
records. She testified extensively about Janna’s health and noted, among
other things, that Janna was a “fine, healthy weight” at her ten-day check-
up. Defense counsel questioned the pediatrician about co-sleeping, and
she stated, “We recommend babies sleep in their own bed and not with
the parents for the concern that someone could roll on the baby, or they
could accidentally get smothered against someone at night.”

   Then, toward the end of trial, the court admitted the two news
interviews, and the jury watched both.

   During closing argument, the State asserted that Fairbanks was guilty
of murder because he “smothered Janna with a pillow,” knowingly
causing her to die. The State further argued that Fairbanks was guilty of
the neglect charge because he placed his dependent child “in a situation
that endangered her life” when he “plac[ed] a pillow over her head” and
then “went back to sleep.”

   The defense maintained that the State hadn’t proven the charges
beyond a reasonable doubt, in part because the State did not show how
Janna died. To that end, defense counsel argued, “People sleep with their




Indiana Supreme Court | Case No. 18S-CR-604 | March 27, 2019         Page 4 of 14
kids all the time. This is accidental. It’s an accident compounded by his
stupidity of what he did with his own daughter . . . .”

   The jury acquitted Fairbanks of the murder charge but found him
guilty of felony neglect of a dependent resulting in death. The trial court
sentenced him to thirty years.

   Fairbanks appealed, raising a number of arguments—including that the
evidence of prior pillow incidents was inadmissible under Indiana
Evidence Rule 404(b). The Court of Appeals unanimously rejected
Fairbanks’s arguments and affirmed the conviction. Fairbanks v. State, 108
N.E.3d 357, 374 (Ind. Ct. App. 2018); id. at 374–76 (Pyle, J., concurring).

   Fairbanks petitioned for transfer, which we granted, vacating the Court
of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   Here, two standards of review apply to the trial court’s ruling on the
admission of evidence. First, this evidentiary ruling turned on a purely
legal, threshold question—whether a defendant must first affirmatively
assert an accident defense before the 404(b) lack-of-accident exception
becomes available. We thus review that aspect of the ruling de novo. See
Hirsch v. State, 697 N.E.2d 37, 40 (Ind. 1998). But to the degree the
evidentiary ruling did not raise a question of law, we review for an abuse
of discretion. See Inman v. State, 4 N.E.3d 190, 197 (Ind. 2014). Under that
standard, we reverse only when the admission is clearly against the logic
and effect of the facts and circumstances. Shinnock v. State, 76 N.E.3d 841,
842–43 (Ind. 2017).


Discussion and Decision
   Indiana Evidence Rule 404(b) serves to safeguard the presumption of
innocence in favor of criminal defendants. See Swain v. State, 647 N.E.2d
23, 24 (Ind. Ct. App. 1995) (quoting Hardin v. State, 611 N.E.2d 123, 128
(Ind. 1993)), trans. denied. The Rule’s mandate is clear: a court may not
admit evidence of another crime, wrong, or act “to prove a person’s


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character in order to show that on a particular occasion the person acted
in accordance with the character.” Ind. Evidence Rule 404(b)(1). This
restriction prevents the jury from indulging in the “forbidden inference”
that a criminal defendant’s “prior wrongful conduct suggests present
guilt.” Byers v. State, 709 N.E.2d 1024, 1026–27 (Ind. 1999).

   But Rule 404(b) does not totally proscribe other-bad-acts evidence—
only its use as character evidence. Indeed, the Rule plainly states that
other-bad-acts evidence may be admissible for other purposes, and it
provides an illustrative list—to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Evid. R. 404(b)(2). So when the State claims that other-bad-acts
evidence is admissible for a proper purpose, the trial court is tasked with
deciding whether that evidence “is relevant to a matter at issue other than
the defendant’s propensity to commit the charged act.” Hicks v. State, 690
N.E.2d 215, 219 (Ind. 1997).

  If the evidence passes that relevance test, it has to clear a second hurdle:
Indiana Evidence Rule 403’s balancing test. In applying Rule 403, the trial
court must conclude that the evidence’s probative value is not
“substantially outweighed” by the danger of unfair prejudice, Evid. R.
403—otherwise, the evidence is not admissible. See Hicks, 690 N.E.2d at
223.

   While the general principles underlying the admissibility of other-bad-
acts evidence have been recited numerous times, see, e.g., id. at 221, Rule
404(b) continues to prove difficult in application. We have recognized as
much, stating that the use of other-bad-acts evidence “to prove matters
other than general character has always been problematic for the courts.”
Wickizer v. State, 626 N.E.2d 795, 797 (Ind. 1993) (quoting Gregory P.
Joseph & Stephen A. Saltzburg, Evidence in America: The Federal Rules in
the States § 14.3, at 6 (Supp. 1992)).

   This case was no exception, as it brought to light an unsettled question
regarding one of Rule 404(b)’s listed permissible purposes—lack of
accident. Specifically, does a criminal defendant have to affirmatively
raise an accident defense before the State may introduce other-bad-acts
evidence to show the charged conduct was not an accident? The Court of


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Appeals panel aptly noted that there is “no clear-cut answer under
Indiana law” to this question. Fairbanks, 108 N.E.3d at 367–68.

   After examining our precedent addressing other Rule 404(b)
exceptions—intent, plan, and motive—we hold that lack-of-accident
evidence may be admitted only (1) when the State has “reliable assurance”
that an accident defense will be raised or (2) after the defendant places
accident at issue at trial. 1

   Here, Fairbanks did not place accident at issue at trial before the State
introduced the lack-of-accident evidence—the prior pillow incidents. But
his statements before trial to police and to the news media gave the State
“reliable assurance” that he would raise an accident defense. The accident
exception was thus available to the State when it offered the 404(b)
evidence in question. And because that pillow evidence’s probative value
was not substantially outweighed by its prejudicial effect under Rule 403,
the trial court did not abuse its discretion in admitting the evidence. We
thus affirm Fairbanks’s conviction for felony neglect of a dependent
resulting in death.


I. Indiana cases addressing other Rule 404(b)
   exceptions provide valuable guidance.
   The parties’ arguments regarding the admissibility of pillow evidence
boil down to a matter of chronology. While the State contends that its
introduction of Rule 404(b) lack-of-accident evidence does not require the
defendant to first assert accident as a defense at trial, Fairbanks maintains
the opposite—that a criminal defendant must raise an accident defense at
trial before lack-of-accident evidence may be admitted. Both parties claim
that this Court’s prior cases addressing other Rule 404(b) exceptions
support their respective positions—so we examine those cases closely.




1On all other issues, we summarily affirm the decision of the Court of Appeals. See App. R.
58(A)(2).



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   In Wickizer v. State, this Court addressed a similar chronology argument
that implicated the intent exception of Rule 404(b). 626 N.E.2d 795 (Ind.
1993). In that case, we first noted that a defendant’s mental state or
culpability is an element to be proven in the vast majority of criminal
cases; so, evidence of intent is typically considered both relevant and
probative. Id. at 797. But we acknowledged the dangers in construing the
intent exception too broadly. Id.

  We specifically recognized that to allow other-bad-acts evidence to
prove intent when a defendant merely denies involvement in a crime
would often produce the “forbidden inference”—a result at odds with
Rule 404(b)’s overarching purpose. Id. at 797, 799. So, we held that Rule
404(b)’s intent exception is available only “when a defendant goes beyond
merely denying the charged culpability and affirmatively presents a claim
of particular contrary intent.” Id. at 799. In other words, to use the Rule
404(b) intent exception, the State needed more than a “mere denial of
involvement in the offense”; it needed to be confronted with a defendant’s
claim that “whatever conduct he may have engaged in, he did not possess
the necessary mens rea for the offense.” Jeffrey O. Cooper, The Continuing
Complexity of Indiana Rule of Evidence 404(b), 35 Ind. L. Rev. 1415, 1420
(2002).

   This Court in Wickizer then addressed the timing of a defendant’s claim
of particular contrary intent, providing several examples of when the Rule
404(b) intent exception becomes available to the State. 626 N.E.2d at 799.
We first explained that the exception becomes available when a
defendant’s claim of contrary intent is alleged in the “opening statement,
by cross-examination of the State’s witnesses, or by presentation of his
own case-in-chief.” Id.; see also Lafayette v. State, 917 N.E.2d 660, 663 (Ind.
2009). But we also explained that, under the facts of that particular case,
the State’s timing in using the Rule 404(b) intent exception was faulty not
only because the defendant failed to first raise contrary intent at trial—but
also because the State, when offering the 404(b) intent evidence, had no
“reliable assurance” that the defendant would affirmatively contest the
issue of intent. Wickizer, 626 N.E.2d at 800.




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   Questions then began to arise about the effect of Wickizer’s holding on
other Rule 404(b) exceptions.

   First, in Goodner v. State, this Court dealt, in part, with the admissibility
of other-bad-acts evidence to prove “plan.” 685 N.E.2d 1058 (Ind. 1997).
We stated that “[t]he concerns that led us in Wickizer to adopt a narrow
construction of the intent exception do not appear applicable to evidence
of acts that are part of the ‘plan’ for the charged offense.” Id. at 1061. We
explained that our concern in Wickizer was that a broad interpretation of
the intent exception could defeat the overarching purpose of Rule 404(b)
because “mental state is an element to be proven by the prosecution in
‘virtually every criminal case.’” Id. at 1061 n.3 (quoting Wickizer, 626
N.E.2d at 797). In declining to extend a Wickizer-like approach to the plan
exception, we noted that “[o]ther exceptions under 404(b) necessarily
involve a different set of issues” than intent. Id.

   Shortly after, in Hicks v. State, this Court addressed the impact of
Wickizer on Rule 404(b)’s “motive” exception. 690 N.E.2d 215 (Ind. 1997).
We again noted that Wickizer construed the intent exception narrowly
because of the intent exception’s unique nature and the associated
likelihood of creating the “forbidden inference.” Id. at 222 n.12. We then
compared intent to motive, noting that “[m]otive and most other collateral
issues are unlike intent”—reasoning that 404(b) motive evidence is “less
likely than intent to be relevant as a general matter” and therefore less
likely to produce the “forbidden inference.” Id. So, we concluded that
Wickizer did not apply to the motive exception. Id.

   Thus, Goodner and Hicks plainly refused to extend Wickizer to Rule
404(b)’s plan and motive exceptions. But what does that mean for Rule
404(b)’s lack-of-accident exception? We address that question below,
focusing on the relationship between “lack of accident” and “intent,”
along with the reasons underlying Wickizer’s narrow construction of the
intent exception.




Indiana Supreme Court | Case No. 18S-CR-604 | March 27, 2019           Page 9 of 14
II. Because “lack of accident” is a subset of intent,
    Wickizer’s holding also applies to that Rule 404(b)
    exception.
    In Goodner and Hicks, we explained that Wickizer did not necessarily
apply to every Rule 404(b) exception. But neither case explicitly foreclosed
the possibility that Wickizer could extend to another Rule 404(b)
exception—if that exception proved sufficiently similar to the intent
exception. After all, this Court was careful in Hicks to note that “[m]otive
and most other collateral issues are unlike intent,” 690 N.E.2d at 222 n.12
(emphasis added)—implicitly recognizing there may be an exception that
is like intent.

   And the lack-of-accident exception is just that—like intent. In fact,
jurists have described the lack-of-accident exception as a “more
specialized application of the broader category of ‘intent.’’’ 22B Charles
Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure §
5255 (2017); see also 12 Robert Lowell Miller, Jr., Indiana Practice, Indiana
Evidence § 404.229 (4th ed. 2016) (stating that lack of accident “has been
said to be ‘simply a special form of the exception that permits the use of
other crimes to prove intent’”).

   That description is apt. After all, when the State seeks to introduce
other-bad-acts evidence to disprove accident, the State wants to show the
defendant had the requisite mens rea to commit the charged act. Or
conversely, a criminal defendant claiming an act was accidental is
necessarily claiming a lack of the requisite criminal intent.

   The State acknowledges the inextricable link between “lack of accident”
and “intent,” arguing that the other-bad-acts evidence offered in this case
was relevant to show that the victim’s “death was not simply
accidental . . . but was intentional, knowing, or negligent.” The State’s
position demonstrates that “lack of accident” is generally relevant at a
criminal trial because a defendant’s mental state will usually be an
element to be proven.




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   This brings us back to Wickizer and its reasons for construing Rule
404(b)’s intent exception narrowly. Our holding in Wickizer was premised
on intent virtually always being at issue in a criminal trial, thus making
Rule 404(b) intent evidence practically always relevant. 626 N.E.2d at 797.
And we recognized the danger in using other-bad-acts evidence generally
to show intent: creating the “forbidden inference” that a criminal
defendant has a criminal propensity and acted in accordance with that
character by engaging in the charged conduct. See id. at 799.

   The same danger exists with the lack-of-accident exception. “Lack of
accident” is usually relevant in any criminal matter, since a defendant’s
mens rea is almost always at issue. And this general relevancy greatly
increases the risk of creating the “forbidden inference” Rule 404(b) aims to
prohibit. See Hicks, 690 N.E.2d at 222 n.12.

   For that reason, the Wickizer approach applies to Rule 404(b)’s lack-of-
accident exception. This means that before the State may offer other-bad-
acts evidence of lack of accident, one of two things must have occurred: (1)
the State had “reliable assurance” that an accident defense would be
raised, or (2) the defendant placed accident at issue at trial. 2




2 Caselaw interpreting Federal Rule of Evidence 404(b)’s lack-of-accident exception reflects a

similar approach. Specifically, federal courts have sanctioned the use of 404(b) other-bad-acts
evidence to prove lack of accident only after an accident defense has been, or is likely to be,
asserted. See, e.g., United States v. Bell, 516 F.3d 432, 442 (6th Cir. 2008) (explaining that for
other-bad-acts evidence to be admissible to show lack of accident, the government must be
seeking “to prove a fact that the defendant has placed, or conceivably will place, in issue”
(quoting United States v. Merriweather, 78 F.3d 1070, 1076 (6th Cir. 1996))); Chavez v. City of
Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005) (finding lack-of-accident evidence
inadmissible in a suit alleging excessive force by a police officer when there was no
suggestion that the police officer accidentally used the police dog); see also Wright & Graham,
supra, at § 5255 (stating that use of the lack-of-accident exception should be confined to cases
in which “accident seems a plausible defense”). Although we aren’t bound by these
interpretations of Federal Rule of Evidence 404(b), we are willing “to look to federal cases
interpreting the rules for guidance when we are confronted with a similar issue.” Lewis v.
State, 34 N.E.3d 240, 248 n.6 (Ind. 2015) (quoting Dowdy v. State, 672 N.E.2d 948, 951 (Ind. Ct.
App. 1996), trans. denied).



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   With that chronology in mind, we now determine whether the trial
court abused its discretion in admitting the Rule 404(b) other-bad-acts
evidence to prove lack of accident.


III. The trial court did not abuse its discretion in
     admitting the lack-of-accident evidence.
   Here, the State introduced testimony that Fairbanks at least twice
placed a pillow over Janna’s face. This other-bad-acts evidence was
offered to show that Janna’s death was not an accident but that Fairbanks
purposefully placed a pillow on Janna and caused her death intentionally,
knowingly, or negligently. This testimony was admitted fairly early
during trial, and the record does not reveal any prior time at trial when
Fairbanks raised the issue of accident.

   The State did, however, have “reliable assurance” that Fairbanks would
raise an accident defense, derived from his pretrial statements to police
and from his news interviews before trial. Fairbanks claimed to police that
although it did not look like he had rolled onto his infant daughter, it was
the “only” thing he could think of. And Fairbanks explained to two media
outlets that he didn’t know much about “roll-over deaths.” Given those
statements, the State had every reason to suspect that Fairbanks would
advance a theory that Janna’s death was accidental.

   And, in fact, Fairbanks did raise the issue of accident—albeit after the
Rule 404(b) pillow evidence was introduced. Defense counsel cross-
examined Janna’s pediatrician about the dangers of co-sleeping, which
brought up the issue of roll-over deaths. And, later, during closing
argument, defense counsel explicitly stated that Janna’s death was an
accident: “Was it unsafe? People sleep with their kids all the time. This is
accidental. It’s an accident . . . .”

   Given the State’s “reliable assurance” of a forthcoming accident
defense, the trial court did not abuse its discretion in finding that the
pillow evidence was “relevant to a matter at issue other than [Fairbanks’s]
propensity to commit the charged act.” Hicks, 690 N.E.2d at 219. But our
review does not end there—we must still determine whether the trial


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court properly found that the pillow evidence cleared Rule 403’s balancing
test.

    There, again, the trial court did not abuse its discretion—the prejudicial
impact of the pillow evidence did not substantially outweigh its probative
value. First, Fairbanks himself admitted in his first statement to police that
he placed a pillow on Janna to muffle her crying on the day she died. And,
second, while the other-bad-acts evidence showed that Fairbanks had
placed a pillow over Janna’s face to stop her crying several times
previously, none of it showed that any physical harm had resulted.
Although the pillow evidence certainly painted Fairbanks in a bad light,
its prejudicial impact was significantly trumped by the evidence’s highly
probative value to show that Janna’s death was not accidental—especially
considering her body was never recovered.

   We thus conclude that the admission of the Rule 404(b) lack-of-accident
evidence was not an abuse of discretion.


Conclusion
   Today, we hold that the State may introduce other-bad-acts evidence to
show lack of accident only (1) when the State has “reliable assurance” that
an accident defense will be raised, or (2) after the defendant places
accident at issue at trial. Here, the State was reliably assured that
Fairbanks would raise an accident defense; therefore, it could properly
introduce the Rule 404(b) evidence. And because that evidence’s
prejudicial effect did not outweigh its probative value, there was no abuse
of discretion in admitting it. We thus affirm Fairbanks’s conviction for
felony neglect of a dependent resulting in death.


David, Massa, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 18S-CR-604 | March 27, 2019       Page 13 of 14
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




Indiana Supreme Court | Case No. 18S-CR-604 | March 27, 2019   Page 14 of 14
