Rush, Chief Justice.
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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.
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. …
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Two media outlets then interviewed Fairbanks. … 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 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.
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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).
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 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). …
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. …
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? …
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.
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.
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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.