Jeffrey Fairbanks v. State of Indiana , 108 N.E.3d 357 ( 2018 )

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
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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.
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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.
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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
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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
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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.
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[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
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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):
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[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.
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[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.
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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.
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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:
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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.
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[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.
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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
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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.”
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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
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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
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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
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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
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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.
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