Jeffrey Fairbanks v. State of Indiana, 119 N.E.3d 564

Background

On May 28, 2015, three-month-old Janna died while co‑sleeping with her father, Jeffrey Fairbanks; her body was not recovered. Fairbanks gave varying pretrial statements admitting he once put a pillow over Janna to muffle crying and later describing awakening to find her lifeless.
The State charged Fairbanks with murder and felony neglect resulting in death; the jury acquitted on murder but convicted on felony neglect and the court sentenced him to 30 years.
Before trial the State sought to admit other‑acts evidence under Indiana Evidence Rule 404(b) that Fairbanks had on prior occasions placed a pillow over the infant’s face; Fairbanks moved to exclude it as propensity evidence.
The trial court admitted testimony from family members describing prior pillow incidents and also admitted Fairbanks’s pretrial news interviews; the defense argued accident at trial (co‑sleeping/roll‑over theory) in closing.
The core legal question presented on transfer was whether Rule 404(b)’s lack‑of‑accident exception requires a defendant to first raise an accident defense at trial or whether the State may introduce such evidence when it has “reliable assurance” the defendant will assert accident.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 404(b) lack‑of‑accident evidence may be admitted only after defendant affirmatively raises accident at trial	State: 404(b) evidence may be admitted when relevant to show non‑accident and need not await a trial‑stage assertion if it is timely and relevant	Fairbanks: The defendant must first place accident at issue at trial before the State may introduce lack‑of‑accident other‑acts evidence	Held: Lack‑of‑accident evidence is treated like intent and is admissible only (1) when the State has “reliable assurance” the defendant will raise accident, or (2) after the defendant places accident at issue at trial.
Whether the State had “reliable assurance” here that an accident defense would be asserted	State: Fairbanks’s pretrial statements to police and media indicating uncertainty about roll‑over deaths and attributing possible accidental causes gave reliable assurance	Fairbanks: Pretrial statements were not equivalent to an affirmative trial defense; admission was prejudicial and improper	Held: The State had reliable assurance from Fairbanks’s pretrial statements that he would assert accident; thus the 404(b) pillow evidence was timely admissible.
Whether admission of prior‑pillow testimony violated Rule 404(b)’s prohibition on propensity evidence	State: Evidence was admitted for lack‑of‑accident (non‑propensity) purpose, not to show character	Fairbanks: Testimony was highly prejudicial propensity evidence and should be excluded under 404(b) and 403	Held: Trial court did not abuse its discretion—evidence was relevant to non‑accident issue and not substantially more prejudicial than probative under Rule 403.
Whether admission of the evidence was an abuse of discretion under Rule 403	State: Probative value was high because body unrecovered and prior pillow use made accident less plausible	Fairbanks: Prior acts painted him in a bad light and risked unfair prejudice to verdict	Held: Not an abuse—Fairbanks’s own admissions and lack of prior physical harm from earlier acts made probative value outweigh prejudice.

Key Cases Cited

Wickizer v. State, 626 N.E.2d 795 (Ind. 1993) (intent exception limited: 404(b) intent evidence allowed only when defendant affirmatively asserts contrary intent)
Goodner v. State, 685 N.E.2d 1058 (Ind. 1997) (Wickizer’s narrow intent rule does not automatically extend to plan evidence)
Hicks v. State, 690 N.E.2d 215 (Ind. 1997) (motive exception distinguished from intent; Wickizer not controlling for motive)
Byers v. State, 709 N.E.2d 1024 (Ind. 1999) (purpose of Rule 404(b) to prevent forbidden propensity inference)
Swain v. State, 647 N.E.2d 23 (Ind. Ct. App. 1995) (discussing Rule 404(b) safeguarding presumption of innocence)
Hardin v. State, 611 N.E.2d 123 (Ind. 1993) (context on Rule 404(b) principles)
Inman v. State, 4 N.E.3d 190 (Ind. 2014) (standard of review for evidentiary rulings)
Shinnock v. State, 76 N.E.3d 841 (Ind. 2017) (abuse‑of‑discretion standard for admission rulings)
Fairbanks v. State, 108 N.E.3d 357 (Ind. Ct. App. 2018) (appellate decision below affirming conviction)