Seven women and five men took a little over a day to find babysitter Dixie Denise Villa guilty as charged of manslaughter in the 2019 “Benadryl” overdose death of 7-month-old Abigail Lobisch.
Villa stood tall, showing no emotion, as the verdict was read Friday morning, while her court- appointed lawyer, Megan Kau, hung her head.
The 46-year-old faces up to 20 years in prison for the death of the infant when she is sentenced Feb. 26.
Jurors never learned during the trial that the former Navy wife reportedly ran an unlicensed day care out of her Aliamanu Military Reservation home and is accused of endangering toddlers and babies, the subject of a federal lawsuit.
Oahu Circuit Judge Fa‘auuga To‘oto‘o thanked the jurors for their service, saying it was a difficult case.
He ordered Villa’s bail amount to be raised to $500,000 from $200,000 after Deputy Prosecutor Tiffany Kaeo asked for an increase, citing Villa’s pending theft case for allegedly stealing merchandise from the Navy Exchange.
Villa, who has been out of custody for the past five years, was taken into custody until sentencing. She had been released Nov. 7, 2019, after posting a $200,000 bail bond, originally set at $1 million.
Although jurors declined to comment on how they reached the verdict, Kaeo said, “I think the jury did their due diligence and they really evaluated the evidence, and we just really want to thank them for taking the time to listen and be a part of this trial because it was really difficult for everybody to hear.”
On Feb. 23, 2019, Anna Lobisch dropped off her daughter and son, 2, with Villa, their babysitter, at her room at the Aulani Disney Resort &Spa, where they spent time at the pool.
The state accused Villa of administering diphenhydramine, the active ingredient in Benadryl, which is marketed to adults as a sleep aid, at some point on Feb. 23, 2019.
An argument arose at the hotel between Villa and her older daughter, Ariana Rivera.
Rivera, her sister and friend Briana Calderon, all visiting from the mainland, had spent most of the time at the hotel watching the children. But after allowing the older girls to stay 20 minutes on the slides, Villa, who had to watch the four youngsters alone, wanted to leave.
Calderon testified Villa was angry, calling her lazy, when she was suffering from food poisoning and did not do much to help with the children.
She told the three to pack up and leave when they returned to her home, Calderon testified. During that time, Calderon heard Abigail crying, but by the time they left, the crying stopped.
The state said Villa was unable to care for all four young children, including her own two children under the age of 5, without help from the older girls.
Villa put all four in bed with her and slept cradling Abigail, which she demonstrated to police. The state accused Villa of being irresponsible since sleeping with an adult could be dangerous to an infant. Lobisch testified she had a sidecar crib next to her bed in which her daughter slept and that she expected her to sleep in a crib at Villa’s house.
The state played the 911 call made the next morning, Feb. 24, 2019, in which a frantic-sounding Villa reported her baby was not breathing and cold to the touch.
The state implied Villa faked the emotional call since first responders testified Abigail was dead when they arrived four minutes after the call and that Villa was calm and without emotion.
After jurors were excused and left the courtroom Friday, Kau told the judge she received information that Lobisch “lied on the stand regarding co-sleeping with the child.”
Kau said a potential witness texted her Friday morning saying she gave documents to police showing Lobisch saw a doctor for mental health reasons, which were not turned over to the defense.
She asked the judge to declare a mistrial and grant a new trial.
The judge instructed Kau to file a motion.
Kau said outside the courtroom, “The reason that’s important is that her credibility is key in this case, and she discussed with my client that she did co-sleep with her child and she knew Denise was sleeping with her child the same way that she was at home.”
“If the government had had it in their possession, it was required to be turned over,” she said.
Kaeo said, “We received new information and I complied with my responsibilities, and we will await the defense’s motion.”
Kau dismissed the idea that the main issue is whether her client caused the diphenhydramine toxicity.
“No, the main issue is defendants need to get a fair trial,” she said. “The government cannot cheat.”
“I’m not saying this deputy prosecuting attorney did anything intentionally at all,” Kau said. “She is an extremely fair and just attorney. … I’m saying the defense didn’t receive exculpatory information that is required to be turned over.”
Kau said she prepared her client for the possibility of being immediately taken into custody. Villa has had a job doing inventory but does not have enough money to make bail, she said.
Jurors were not told during trial that Villa was arrested for theft July 1, 2024, and was being investigated by military police for running an unlicensed and illegal day care operation in military housing.
Villa declined to testify during the trial because the judge ruled that the state would be allowed to ask her about Calderon’s testimony that she told her to lie to military police that a couple of the children being babysat belonged to Calderon.
Abigail’s parents, James and Anna Lobisch, filed in 2020 a civil complaint in federal court against the federal government and property manager Island Palm Communities LLC.
Their attorneys, Davis Levin Livingston, said in a written release: “Abby was killed while in an illegal childcare center run by Ms. Villa located on the Aliamanu Military Reservation.
“The failure of the United States to enforce its childcare regulations and the failure of Island Palm Communities to enforce its housing rules allowed an unqualified and dangerous woman to profit off of desperate parents.”
The law firm said: “The U.S. military has turned a blind eye to black market childcare operations like the one Ms. Villa was known to be operating at AMR.
“In fact, on one occasion military police found 17 inadequately supervised toddlers and babies at Ms. Villa’s illegal childcare operation.”
Kau had repeatedly told jurors that no one had seen Villa administer the diphenhydramine, while the prosecution argued that there was no other person at home except for the small children the evening of Feb. 23, 2019.
She said none of the expert witnesses could say what form the antihistamine was in, including a topical form, or what product, what dosage.
The defense tried to point the finger at both Anna and James Lobisch and the three older girls as possible suspects earlier in the day.
Kau’s strategy to try to discredit Anna Lobisch did not seem to work with the jury.
She questioned and accused Lobisch of lying about feeding Abigail breast milk after taking Tyleol PM, which she alleged could have caused her daughter to have an elevated amount of diphenhydramine.
However, Dr. Jon Gates, who performed the autopsy, found no acetaminophen in her system, thus ruling out Tylenol PM.
And a pediatric emergency physician testified it’s not possible for an infant to ingest in breast milk a fatal amount of diphenhydramine.
Tests done at an accredited laboratory showed Abigail’s heart blood had 2,400 nanograms per milliliter of diphenhydramine, more than twice the fatal amount found in case studies of other babies.
Deputy Prosecutor Joel Garner attacked the defense’s toxicology expert by showing that the expert’s educational credentials were dubious. The expert, who “pooh-poohed” accreditation boards, was not accredited by any board.
The jury did not seem swayed by what Kau called a “science experiment” in which she had a pediatric emergency physician pour 30 adult doses of Benadryl amounting to 3 cups into a measuring cup, comparing it to 4 ounces of formula.
The doctor stood by his testimony that Abigail likely had about 30 child doses, which is 5 ml and not the 20 ml in an adult dose.
He said that symptoms of the poisoning could appear within 30 minutes to four hours of ingesting it.
