A circuit judge Monday denied babysitter Dixie Denise Villa’s motion for a new trial in the Benadryl overdose death of 7-month-old Abigail Lobisch.
Lobisch died Feb. 24, 2019, of diphenhydramine (the main active ingredient in Benadryl) toxicity at Villa’s Aliamanu Military Reservation home, and on Nov. 15 a jury found Villa guilty of manslaugter.
Megan Kau, attorney for Villa, said in court that after the trial, new evidence came forth that could have changed the verdict. She said the baby’s father, James Lobisch, and Vanessa Barnes, another woman, who babysat Abigail Lobisch, came forward with new information.
James Lobisch told Deputy Prosecutor Tiffany Kaeo and a victim’s advocate that his ex-wife had not been truthful about the issue of co-sleeping.
Lobisch testified that his ex-wife lied during the trial when she testified she never slept with her baby in the same bed and that Abigail instead slept in a sidecar or crib attached to the side of her bed.
“We had shared the bed pretty much with both children since they were born,” he said, referring to Abigail and their older child, Zachariah, now 8.
He also provided Kau with photos and text messages to back up his claim.
“I know it sounds crazy, but I wanted Denise (Villa) to have a fair trial,” Lobisch said. “I believe that she is guilty, but I did not want her to have a guilty verdict when somebody lied.”
However, Circuit Judge Fa‘au‘uga To‘oto‘o said: “Even Mr. Lobisch believes Ms. Villa is guilty. What she had was a fair trial.
“The only person who had custody was the defendant. It could not have been any other person.”
To‘oto‘o said that based on the medical and other circumstantial evidence, the jury had the basis for finding the defendant guilty.
“The court doesn’t believe that this evidence would change the verdict,” he said.
The state contends that Lobisch’s motive in bringing up the matter may be that he and his ex-wife are in a custody battle over Zachariah.
He denied the allegation and said Anna Lobisch had purchased a “DockATot,” which he said “looks like a hot dug bun, and you put the child in between and you put that between parents.”
He said they used it but never really used the sidecar.
Anna Lobisch testified she used the DockATot in the sidecar.
Kau also used a photo of Anna Lobisch purportedly sleeping on a couch at James Lobisch’s father’s Florida home, with her sleeping baby girl and Zachariah standing in front.
But that photo was actually a live shot or short video taken on James Lobisch’s iPhone, which, when Kaeo played it for the judge, revealed that neither Anna nor Abigail was asleep.
The issue of co-sleeping was not raised as the cause of death.
Kau grilled Anna Lobisch on a range of issues, alleging that lies call into question the truthfulness of her trial testimony.
Barnes said Lobisch was suffering from anxiety and left her two children with her because she needed to go to the hospital, Kau told the judge.
Kau pressed Lobisch during cross-examination whether she had mental health concerns related to anxiety.
She said it was for medical reasons, but after the state objected and the judge instructed her to explain, she revealed she had suffered a miscarriage.
Kau said Barnes sent messages to the Honolulu Police Department’s Criminal Investigation Division about the anxiety Lobisch was experiencing and having to go to the hospital.
Kau asserted that if Lobisch had anxiety, she had the opportunity to put the diphenydramine into the bottles of formula Villa fed to the baby.
She alleged that Lobisch’s miscarriage, her anxiety and inability to handle her children was motive, opportunity and intent.
Villa will be sentenced May 7. Manslaughter has
a maximum sentence of
20 years.
Villa was running an illegal, unlicensed child care business out of her military housing home, which is the issue of a federal lawsuit by the Lobisches. The case was put on hold until the criminal case is over.
