Vaidik, CJ.
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 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.
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.
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. …
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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.” 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. …
Defense counsel responded that A.G.’s and E.M.’s statements regarding the prior pillow incidents were “not reliable” and “highly prejudicial.” The trial court took the matter under advisement and later denied Fairbanks’s motion in limine on this issue.
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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 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.” 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. 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.
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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. … 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 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).
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) …
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)).
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The prejudicial effect of the pillow evidence does not substantially outweigh its probative value. See Hicks, 690 N.E.2d at 221, 223. … Accordingly, we find that the pillow evidence was admissible under Evidence Rule 404(b)’s lack-of-accident purpose.
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Affirmed.
Barnes, Sr. J., concurs.
Pyle, J., concurs in result with separate opinion.
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. ….