Dixie Villa, the babysitter found guilty of manslaughter in the Benadryl overdose death of 7-month-old infant Abigail Lobisch, is asking for a new trial, saying the child’s mother lied about sleeping with her baby and that an unknown witness has came forward.
The motion for a new trial filed Nov. 25 by Villa’s attorney, Megan Kau, says the baby’s father, James
Lobisch, informed the state shortly after closing arguments that his ex-wife lied on the stand during the Villa trial about never sleeping in the same bed
as their baby.
The Medical Examiner’s Office determined in July 2019 that Abigail Lobisch’s February 2019 death was caused by diphenhydramine (the antihistamine in Benadryl) toxicity, not from being injured by an adult sleeping with her.
The state presented evidence by the forensic pathologist who performed the autopsy that the baby’s heart blood had a high concentration of diphenhydramine, but also asked him about the danger of adults co-sleeping with babies.
An Oahu Circuit jury found Villa guilty Nov. 15 of manslaughter.
After the jury was discharged, Kau raised the
issue before the court. Deputy Prosecutor Tiffany Kaeo said the state complied with the rules of
discovery.
The judge ordered the defense to file a written
motion.
The state will have opportunity to respond to the motion before a Dec. 16 hearing on the motion before trial Judge Fa‘auuga To‘oto‘o.
Villa’s sentencing remains set for Feb. 26.
On Nov. 26, Villa appeared in Honolulu District Court, where she requested a continuance for a jury-
waived trial on an unrelated theft case, according to court minutes. She was charged with third-degree theft for stealing merchandise from The Navy
Exchange.
In the baby death case, Kau’s motion for a new trial says Kaeo emailed the defense a letter Nov. 14, saying, “Mr. Lobisch disclosed to me that he watched the previous coverage of the trial online and wanted to inform me that Anna Lobisch (Anna) lied when she testified.”
Kau writes, “This is material because in its closing argument, the State of
Hawaii heavily relied on
Anna’s false statement.”
The state used photos of Villa demonstrating to police how she lay in bed with the four young children — her two, the Lobisch boy, 2, and Abigail Lobisch, who was found dead, facedown in the bed.
Here are some of the points Kau cites:
>> “Anna was thinking that her baby was going to sleep in a crib and her son on a cot.”
>> “She was not expecting her child to sleep in this bed; she doesn’t share a bed with her child, she uses a side car.”
>> “Why would the defendant, a paid babysitter, bed share with four kids?”
>> “Who goes to bed cradling a child like that? She’s not a breastfeeding mother. Why hold her that way? Doesn’t make sense.”
The motion says “a court may order a new trial for any legal cause or in the interest of justice.”
Kau cites a 1984 Intermediate Court of Appeals case, State v. Teves, that the defendant can seek a new trial on the grounds that a prosecution witness gave false testimony at trial.
Kau also said that a few hours before the verdict, she received text messages from Valerie Barnes, a woman who said she helped Lobisch watch her children. They include screenshots between Barnes and Lobisch.
Kau said the potential witness alleges Lobisch needed help watching her children because she was suffering from anxiety and mental health issues.
Barnes said Lobisch could not “handle both
babies right now lol,” in texts Kau received. Barnes said she provided the information to police in 2019.
Kau said this was exculpatory evidence — evidence that could have justified or excused the defendant from guilt — and should have been given to the defense prior to trial.
The judge prohibited the state from allowing any evidence that Villa was running an illegal day care at trial, including videos and photographs of children at her home. He also did not allow witness testimony that Villa asked a young woman to lie to military police about the status of children at Villa’s home. The judge would have allowed it if Villa took the stand.
Villa, a Navy wife at the time, reportedly ran an illegal, unlicensed day care center at Aliamanu Military Reservation. Military police had been called to the home for inadequate supervision of 17 toddlers and babies on one occasion, lawyers for the Lobisches say.
Anna and James Lobisch filed a complaint in 2020 in federal court against the U.S. government and property manager Island Palm Communities for their failure to enforce federal housing rules regarding child care regulations. That case was temporarily suspended pending the criminal trial.
The couple had been going through a divorce at the time of Abigail Lobisch’s death.
