MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                   FILED
Memorandum Decision shall not be regarded as                   Feb 26 2018, 7:16 am
precedent or cited before any court except for the
                                                                   CLERK
purpose of establishing the defense of res judicata,           Indiana Supreme Court
                                                                  Court of Appeals
collateral estoppel, or the law of the case.                        and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Timothy P. Broden                                      Curtis T. Hill, Jr.
Lafayette, Indiana                                     Attorney General of Indiana
                                                       J.T. Whitehead
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Chad Giroux,                                               February 26, 2018

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A04-1709-CR-2206

        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Randy J. Williams,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           79D01-1606-F1-9




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 1 of 9
                                          Case Summary
[1]   B.G., the daughter of Appellant-Defendant Chad Giroux and Mackenzie

      Schultz, was neglected and improperly fed over the first few months of her life,

      finally dying of asphyxiation in November of 2015, when she was not even

      eight months old. Giroux went to some lengths to conceal his culpability,

      including lying to the Tippecanoe grand jury and refusing to turn over evidence

      to it. Giroux pled guilty to Level 1 felony neglect of a dependent resulting in

      death, Class A misdemeanor failure to report a dead body, Level 6 felony

      perjury, and Level 6 felony obstruction of justice, and the trial court sentenced

      him to an aggregate sentence of thirty-five years of incarceration, with one year

      suspended to probation. Giroux contends that the trial court abused its

      discretion in sentencing him and that his sentence is inappropriately harsh.

      Because we disagree, we affirm the judgment of the trial court.



                            Facts and Procedural History
[2]   B.G. was born on March 17, 2015, the second daughter of Giroux and Schultz.

      Giroux and Shultz had responsibility for the care of B.G. From March to

      November of 2015, B.G. was neglected, not properly fed, and emaciated,

      weighing eleven pounds at almost eight months old. Giroux and Schultz had

      B.G. sleeping in a closet, and Giroux was aware that Schultz placed blankets

      over B.G., doing nothing to stop her. Giroux acknowledged that the

      combination of neglect and placing blankets on B.G. caused her death of

      asphyxiation on or about November 15, 2015. Although Giroux and Schultz

      Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 2 of 9
      became aware that B.G. had died, they did not report her death to authorities

      within three hours of discovery. Giroux and Shultz waited at least a day before

      informing authorities of B.G.’s death. After learning of B.G.’s death but before

      reporting it, Giroux removed and hid several hard drives from computers in his

      residence, indicating later (when the drives were requested by the grand jury)

      that they did not exist.


[3]   On May 31, 2016, Giroux testified before the grand jury and intentionally

      offered false testimony regarding when he and Schultz became aware of B.G.’s

      death. On June 16, 2016, the grand jury indicted Giroux with Level 1 felony

      neglect of a dependent resulting in death, Level 3 felony neglect of a dependent

      resulting in serious bodily injury, Level 5 felony neglect of a dependent resulting

      in bodily injury, Level 6 felony neglect of a dependent, Class A misdemeanor

      false informing, Class A misdemeanor failure to report a dead body, Level 6

      felony perjury, and Level 6 felony obstruction of justice. On January 6, 2017,

      Giroux pled guilty to Level 1 felony neglect of a dependent resulting in death,

      Class A misdemeanor failure to report a dead body, Level 6 felony perjury, and

      Level 6 felony obstruction of justice.


[4]   On March 9, 2017, the trial court sentenced Giroux to a term of thirty-two

      years of incarceration for Level 1 felony neglect of a dependent, one year for

      failure to report a dead body, and two years each for perjury and obstruction of

      justice. The trial court ordered that the sentences for perjury and obstruction of

      justice be served concurrently but that the sentences otherwise be served



      Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 3 of 9
      consecutively for a thirty-five-year aggregate sentence, with one year suspended

      to probation.


                                 Discussion and Decision
                       I. Whether the Trial Court Abused its
                          Discretion in Sentencing Giroux
[5]   Under our current sentencing scheme, “the trial court must enter a statement

      including reasonably detailed reasons or circumstances for imposing a

      particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the

      sentence for an abuse of discretion. Id. An abuse of discretion occurs if “the

      decision is clearly against the logic and effect of the facts and circumstances.”

      Id. A trial court abuses its discretion if it (1) fails “to enter a sentencing

      statement at all[,]” (2) enters “a sentencing statement that explains reasons for

      imposing a sentence–including a finding of aggravating and mitigating factors if

      any–but the record does not support the reasons,” (3) enters a sentencing

      statement that “omits reasons that are clearly supported by the record and

      advanced for consideration,” or (4) considers reasons that “are improper as a

      matter of law.” Id. at 490–91. If the trial court has abused its discretion, we

      will remand for resentencing “if we cannot say with confidence that the trial

      court would have imposed the same sentence had it properly considered

      reasons that enjoy support in the record.” Id. at 491. However, the relative

      weight or value assignable to reasons properly found, or to those which should

      have been found, is not subject to review for abuse of discretion. Id.
      Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 4 of 9
[6]   The trial court issued a sentencing order, which provides, in part, as follows:


                    The Court finds as mitigating factors the defendant
              pleaded guilty and accepted responsibility, the defendant has
              family support and an employment history.
                     The Court finds as aggravating factors the defendant does
              have a criminal history, the victim was under the age of twelve
              (12) and the defendant has a history of substance abuse.
                    The Court further finds that the aggravating factors
              outweigh the mitigating factors.


      Appellant’s App. Vol. II p. 16.


[7]   Giroux challenges the trial court’s finding that the victim’s age being under

      twelve was an aggravating circumstance, arguing that it is improper because the

      victim being under the age fourteen is an element of neglect of a dependent

      causing death. See Ind. Code § 35-46-1-4(a)(1), -4(a)(2), -4(a)(3), -4(b)(3)

      (providing that neglect of a dependent is a “Level 1 felony if it is committed …

      by a person at least eighteen (18) years of age and results in the death of a

      dependent who is less than fourteen (14) years of age”). Quite simply, B.G.

      was far younger than twelve (or fourteen) when she died, not even having

      reached her first birthday. As the trial court observed at sentencing, “the victim

      is eight months old. Defenseless.” Tr. Vol. II p. 56. Under the circumstances

      of this case, we cannot say that trial court abused its discretion in finding B.G.’s

      tender age to be aggravating. See, e.g., McElroy v. State, 865 N.E.2d 584, 589–90

      (Ind. 2007) (observing that while “[i]t is true that a material element of a crime

      may not be used as an aggravating factor to support an enhanced sentence[,]

      Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 5 of 9
      when evaluating the nature of the offense, ‘the trial court may properly consider

      the particularized circumstances of the factual elements as aggravating factors’”

      and that “this aggravator is ‘thought to be associated with particularly heinous

      facts or situations’”).


[8]   Giroux also seems to suggest that the trial court did not give his guilty plea

      enough weight. We treat the consideration of remorse or acceptance of

      responsibility as a credibility determination best left to the sentencing court. See

      Pickens v. State, 767 N.E.2d 530, 534–35 (Ind. 2002). Here, the trial court

      acknowledged Giroux’s guilty plea but also noted Giroux’s “lack of affect”

      during the sentencing hearing and that Giroux did not exhibit the “pain and

      anguish I would think a father would show at the loss of a child.” Tr. Vol. II p.

      55. The record indicates that the trial court considered Giroux’s plea, the

      acceptance of responsibility, and alleged remorse before finding his guilty plea

      and acceptance of responsibility to be mitigating. As mentioned, however, we

      will not review the amount of weight given to this mitigating circumstance.

      Giroux has failed to establish that the trial court abused its discretion in

      sentencing him.


                             II. Appropriateness of Sentence
[9]   We “may revise a sentence authorized by statute if, after due consideration of

      the trial court’s decision, the Court finds that the sentence is inappropriate in

      light of the nature of the offense and the character of the offender.” Ind.

      Appellate Rule 7(B). “Although appellate review of sentences must give due


      Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 6 of 9
       consideration to the trial court’s sentence because of the special expertise of the

       trial bench in making sentencing decisions, Appellate Rule 7(B) is an

       authorization to revise sentences when certain broad conditions are satisfied.”

       Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations

       and quotation marks omitted). “[W]hether we regard a sentence as appropriate

       at the end of the day turns on our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other factors that

       come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). In addition to the “due consideration” we are required to give to the

       trial court’s sentencing decision, “we understand and recognize the unique

       perspective a trial court brings to its sentencing decisions.” Rutherford v. State,

       866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


[10]   The nature of Giroux’s crimes is egregious. As a result of Giroux’s neglect, his

       daughter B.G. did not even reach her first birthday, dying of asphyxia while

       already malnourished, emaciated, and dramatically underweight. Photographic

       exhibit evidence showed the lack of fatty tissue and the “wizened” look of B.G.,

       and she grew only five pounds in seven months, indicating that the neglect was

       long-standing. Tr. Vol. II p. 52. Giroux and Schultz caused B.G. to sleep in a

       closet and covered her with blankets, which was the final act of neglect and the

       cause of her death.


[11]   Beyond lying to and concealing evidence from the grand jury, Giroux went to

       some additional lengths to conceal his crimes. To this end, Giroux and Schultz

       devised and attempted a rather disturbing plan to convince others that they did

       Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 7 of 9
       not know that B.G. was actually dead until a full day after they actually

       discovered her. After B.G. died, Giroux and Schultz agreed to drive around

       with her dead body strapped into a car seat, the window open to imply that she

       was still alive. The trial court noted that this was done after rigor mortis had

       begun taking hold. The trial court also noted that the crimes included the

       removal and hiding of computer hard drives, there were in fact bottles of

       formula in the house, the house had been cleaned, and evidence showed that

       some bags of items had been disposed of. The crimes had other victims,

       including Giroux’s older daughter—a “collateral” victim—along with other

       family members. Tr. Vol. II p. 53. The appalling nature of Giroux’s offenses

       warrants the imposition of enhanced sentences.


[12]   Much of what we wrote concerning the nature of Giroux’s offenses is relevant

       to making out his character, and, to say the least, it does not speak well of him.

       At any time during B.G.’s short life, Giroux could have ceased the neglect,

       chose not to, and then went to great lengths to conceal his crimes. The record

       indicates a person who seems to be more worried about his punishment than

       upset about the death of his daughter. Giroux told a psychological evaluator

       that he and Schultz did not immediately take B.G. to the hospital because they

       ware “‘terrified they would get in trouble.’” Appellant’s App. Vol. II p. 52.

       The trial court noted Giroux’s strange “affect” at sentencing and that he did not

       act like a father who had lost a daughter. Finally, Giroux’s criminal history,

       while not particularly serious, certainly is not a positive: two convictions for

       Class A misdemeanor driving while suspended and one for Class A


       Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 8 of 9
       misdemeanor possession of paraphernalia. Giroux’s criminal record, while not

       the worst we have encountered, weighs against his character. In light of the

       egregious nature of Giroux’s offenses and his character, he has failed to

       convince us that his thirty-five-year sentence is inappropriately harsh.


[13]   We affirm the judgment of the trial court.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1709-CR-2206 | February 26, 2018   Page 9 of 9
