Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                     Aug 29 2013, 5:34 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

THOMAS C. ALLEN                                     GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    JAMES B. MARTIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

TROY A. SCHNITZ,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 35A02-1212-CR-965
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HUNTINGTON CIRCUIT COURT
                           The Honorable Thomas M. Hakes, Judge
                               Cause No. 35C01-1112-FB-275



                                         August 29, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Troy A. Schnitz was the primary caregiver of his three-month-old son. Schnitz struck

his son, slammed his head into the floor, shook him violently, and shoved a bottle in his

mouth, resulting in such serious brain injuries that his son can neither breathe nor eat on his

own and requires permanent and continuous nursing care. The State charged Schnitz with,

and he pled guilty to, three counts of class B felony battery resulting in serious bodily injury,

one count of class B felony neglect of a dependent resulting in serious bodily injury, and one

count of class D felony battery. The trial court sentenced Schnitz to an aggregate term of

forty-seven years, with three years suspended.

       Schnitz appeals his conviction for class B felony neglect of a dependent, arguing that

because it is supported by the same factual basis that supports his three convictions for class

B felony battery, it violates his constitutional right against double jeopardy. Schnitz also

appeals his aggregate forty-seven-year sentence, arguing that it is inappropriate in light of the

nature of the offenses and his character. We conclude that his conviction for class B felony

neglect of a dependent violates double jeopardy principles and therefore must be vacated.

We also conclude that he has failed to carry his burden to persuade us that his sentence is

inappropriate. Accordingly, we vacate his conviction for class B felony neglect of a

dependent and affirm the sentence imposed for his remaining convictions.

                               Facts and Procedural History

       On October 21, 2012, Schnitz pled guilty without a plea agreement to three counts of

class B felony battery resulting in serious bodily injury, one count of class B felony neglect


                                               2
of a dependent resulting in serious bodily injury, and one count of class D felony battery.

The facts supporting his convictions to which he admitted at the guilty plea hearing follow.

       In October 2011, twenty-two-year-old Schnitz lived in Huntington County with his

wife and their son, three-month-old Raiden. Because Schnitz’s wife worked outside the

home, he provided primary care for Raiden. The facts supporting Count I, class B felony

battery resulting in serious bodily injury, are that Schnitz “became angry with Raiden because

he would not stop crying and [Schnitz] struck him in a manner that resulted in a skull fracture

to his left parietal bone.” Change of Plea Tr. at 9. This battery occurred on a different date

than the batteries that Schnitz committed under Counts II, III, and V. Schnitz admitted that

he knowingly touched Raiden in a rude, insolent, or angry manner which resulted in serious

bodily injury.

       The facts supporting Count II, class B felony battery resulting in serious bodily injury,

are that Schnitz “became angry with Raiden because he would not stop crying and [Schnitz]

slammed his head into the floor which resulted in skull fractures to his occipital and right

parietal bones.” Id. at 10. This battery occurred on a different date than the batteries that

Schnitz committed under Counts I, III, and V. Schnitz admitted that he knowingly touched

Raiden in a rude, insolent, or angry manner which resulted in serious bodily injury.

       The facts supporting Count III, class B felony battery resulting in serious bodily

injury, are that Schnitz “became angry with Raiden because he would not stop crying and

[Schnitz] shook him violently. [He] shook Raiden hard enough that it resulted in a subdural

hematoma which is bleeding in the brain and it caused Raiden’s retinas to detach.” Id. at 11.


                                               3
This battery occurred on a different date than the batteries that Schnitz committed under

Counts I, II, and V. Schnitz admitted that he knowingly touched Raiden in a rude, insolent,

or angry manner which resulted in serious bodily injury.

       As for Count IV, class B felony neglect of a dependent resulting in serious bodily

injury, Schnitz admitted that “[w]hile caring for his son [], [Schnitz] knowingly placed

Raiden in a situation that endangered his life and health. The neglect of [] Raiden resulted in

serious bodily injury to Raiden.” Id. at 11-12.

       The facts supporting Count V, class D felony battery, are that Schnitz “became angry

with Raiden because he would not stop crying and [Schnitz] shoved a bottle into his mouth

which resulted in Raiden’s frenula tearing and bleeding.” Id. at 12. This battery occurred on

a different date than the batteries that Schnitz committed under Counts I, II, and III. Schnitz

admitted that he knowingly touched Raiden in a rude, insolent, or angry manner which

resulted in bodily injury.

       At the sentencing hearing, Schnitz testified that he was smoking “spice” at the time of

the offenses and explained that he had previously smoked pot, but because pot was illegal

and spice was legal, he had switched to spice. Sentencing Tr. at 70. He was no longer using

any drugs and was taking drug and alcohol classes, having finished fifteen of the twenty for

which he was scheduled. He was also participating in counseling and was gainfully

employed. He testified,

       I made a wrong decision. I did horrible things that I can’t take back and
       there’s, there’s been a lot of commotion about it and people being judgmental
       and they just don’t really stop and think about me, how I really feel. This was


                                              4
       my child. I made that decision and it’s been very hard to deal with. I would
       give anything to be able to switch him spots.

Id. at 71-72.

       Other evidence presented at the sentencing hearing shows that Raiden was

hospitalized from October 22 through 24, 2011, for seizures. Schnitz did not reveal to

doctors that he had done anything to Raiden. The doctors diagnosed the seizures as being

caused by the onset of pneumonia and a high fever. After Raiden returned home, Schnitz

inflicted additional batteries on Raiden. On October 29, 2011, Raiden was taken to the local

hospital in full cardiac arrest. When the doctors informed Schnitz of the full extent of

Raiden’s injuries, Schnitz did not tell doctors what he had done to Raiden. Raiden was

transferred to Riley Children’s Hospital in Indianapolis, and Schnitz did not inform those

doctors of what he had done to Raiden. On October 30, 2011, police interviewed Schnitz.

Initially, he acted like he did not know how Raiden could have incurred his injuries, offering

only that Raiden fell out of his swing and hit his head. About an hour and a half into his

police interview, Schnitz finally began admitting what he had done to Raiden.

       The State submitted a doctor’s report that detailed the severe injuries suffered by

Raiden, indicating that he could not breathe or eat on his own and needed continuous nursing

care. The report also stated that Raiden would never be able to talk, sit independently, walk,

or potty train.

       Testifying on Schnitz’s behalf were his wife, mother, brother, mother-in law, sister-in-

law, and a good friend. Generally speaking, they testified to the effect that Schnitz was a

good person, a good father, and a nonaggressive person with no prior history of violence or

                                              5
anger. They also testified that he was remorseful for what he had done and had turned his

life around. They asked the trial court to show mercy so that Schnitz could continue to act as

a husband and father because his wife and family needed him.

       Following the presentation of evidence, the trial court found that Schnitz’s role as

Raiden’s primary caregiver, his position of trust, his drug use, the severity of the injuries, and

the multiple events of abuse were aggravating circumstances. The trial court found that

Schnitz’s lack of criminal history, remorse, and guilty plea were mitigating circumstances.

The trial court determined that the aggravating circumstances outweighed the mitigating

circumstances and sentenced Schnitz to fifteen years each for Counts I, II, and III, all to run

consecutive to one another and to the two-year sentence imposed on Count V. The trial court

sentenced Schnitz to fifteen years on Count IV, neglect of a dependent, to run concurrent

with his other sentences. Accordingly, Schnitz received an aggregate term of forty-seven

years, with three years suspended to probation.

                                   Discussion and Decision

                                     I. Double Jeopardy

       Schnitz argues that his conviction for class B felony neglect of a dependent resulting

in serious bodily injury violates double jeopardy principles. Article 1, Section 14 of the

Indiana Constitution provides, “No person shall be put in jeopardy twice for the same

offense.” Our supreme court explained,

              [T]wo or more offenses are the “same offense” in violation of Article I,
       Section 14 of the Indiana Constitution, if, with respect to either the statutory
       elements of the challenged crimes or the actual evidence used to convict, the
       essential elements of one challenged offense also establish the essential

                                                6
         elements of another challenged offense. Both of these considerations, the
         statutory elements test and the actual evidence test, are components of the
         double jeopardy “same offense” analysis under the Indiana Constitution.

Richardson v. State, 717 N.E.2d 32, 49-50 (Ind. 1999) (footnote omitted). We review

claimed double jeopardy violations de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind.

2011).

         In this case, the statutory elements test entails a comparison of the statutory elements

of battery and neglect of a dependent. A person over the age of eighteen commits battery as

a class D felony when he or she knowingly or intentionally touches another person who is

less than fourteen years old in a rude, insolent, or angry manner. Ind. Code § 35-42-2-

1(a)(2). Battery is a class B felony when committed by a person over the age of eighteen on

a victim that is under the age of fourteen if it results in serious bodily injury. Ind. Code § 35-

42-2-1(a)(4). A person having the care of a dependent, whether assumed voluntarily or

because of a legal obligation, who knowingly or intentionally places the dependent in a

situation that endangers the dependent’s life or health commits neglect of a dependent, a

class D felony. Ind. Code § 35-46-1-4(a). Neglect of a dependent is a class B felony if it

results in serious bodily injury. Ind. Code § 35-46-1-4(b)(2).

         Battery and neglect of a dependent contain statutory elements that are not included in

the other. As charged here, battery requires proof of the accused’s knowing or intentional

rude, angry, or insolent touching, that the accused was over eighteen, and that the victim was

less than fourteen, none of which is required by statute to prove neglect of a dependent.

Neglect of a dependent requires proof that the accused had the voluntary or legal care of a


                                                7
dependent and placed the dependent in a situation that endangered the dependent’s life or

health, but such proof is not statutorily required to prove battery. Accordingly, the

Richardson statutory elements test is not violated.

        As for the Richardson actual evidence test,

        the actual evidence presented at trial is examined to determine whether each
        challenged offense was established by separate and distinct facts. To show
        that two challenged offenses constitute the “same offense” in a claim of double
        jeopardy, a defendant must demonstrate a reasonable possibility that the
        evidentiary facts used by the fact-finder to establish the essential elements of
        one offense may also have been used to establish the essential elements of a
        second challenged offense.

Richardson, 717 N.E.2d at 53.

        Schnitz argues that his neglect of a dependent conviction violates the actual evidence

test because it is not supported by facts that are separate and distinct from those supporting

his battery convictions. The State concedes that the same serious bodily injuries supporting

the enhancement of neglect of a dependent to a class B felony are the same serious bodily

injuries supporting the enhancement of the batteries in Counts I, II, and III to class B

felonies, and therefore, the enhancement of the neglect of a dependent count violates double

jeopardy principles and must be reduced to a class D felony.1 However, the State argues that

a conviction for class D felony neglect of a dependent would not violate the actual evidence


        1
           “Often discussed under the general rubric of Indiana double jeopardy jurisprudence, we recognize ‘a
series of rules of statutory construction and common law that are separate and in addition to the protections
afforded by the Indiana Double Jeopardy Clause.’” Sanjari v. State, 961 N.E.2d 1005, 1007 (Ind. 2012)
(quoting Spivey v. State, 761 N.E.2d 831, 834 (Ind. 2002)). One of these rules prohibits “‘conviction and
punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or
harm as another crime for which the defendant has been convicted and punished.’” Guyton v. State, 771
N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)). This is the
rule upon which the State relies.

                                                      8
test because the factual basis for class D felony neglect of a dependent is separate and distinct

from the facts supporting Schnitz’s class B felony batteries. We disagree.

       At the guilty plea hearing, Schnitz’s admissions to his battery convictions described

the conduct that caused specific serious bodily injuries. For Count I, Schnitz admitted to

striking Raiden resulting in a left parietal bone fracture. For Count II, he admitted to

slamming Raiden’s head against the floor causing occipital and right parietal bone fractures.

For Count III, he admitted to shaking Raiden violently causing a subdural hematoma and

detachment of Raiden’s retinas. For the neglect of a dependent charge, Schnitz admitted to

knowingly placing Raiden “in a situation that endangered his life and health” resulting in

serious bodily injury. Guilty Plea Tr. at 12.

       The State asserts that the placing of Raiden “in a situation that endangered his life and

health” is a different factual basis than those supporting the batteries. However, the State

fails to explain what Schnitz actually did to place Raiden in a situation that endangered his

life and health and ignores the implication arising from the fact, to which it concedes, that the

same serious bodily injuries that were caused from the neglect of a dependent were caused by

the batteries. Based on the facts that Schnitz admitted to at his guilty plea hearing, and given

that the same injuries support the enhancements of all the offenses, it reasonably follows that

the striking, slamming, and shaking that make up the rude, angry, or insolent touchings of

Schnitz’s battery convictions was also the conduct that Schnitz engaged in that placed Raiden

in a situation that endangered his life and health. At the sentencing hearing, the prosecutor

stated, “I believe that count four which is the neglect of the dependent is merged with the


                                                9
counts one, two and three because we have relied upon the injuries[], that the defendant

inflicted in those counts to support the neglect charge.” Sentencing Tr. at 115. This

statement supports the reasonable possibility that because the neglect of a dependent injuries

were the same as those for the batteries, the conduct comprising the placement of Raiden in a

situation that endangered his life and health is the same conduct comprising the rude, angry,

or insolent touching in the battery counts. In addition, the battery counts and the neglect of a

dependent count included the fact that Schnitz was the primary care giver of three-month-old

Raiden, which establishes that Schnitz had the care of Raiden who was dependent on him.

Accordingly, there are not separate and distinct facts supporting the offense of neglect of a

dependent even as a class D felony. We conclude that Schnitz’s conviction for neglect of a

dependent fails the Richardson actual evidence test and thus violates the Indiana Constitution

double jeopardy clause. Accordingly, we vacate Schnitz’s conviction for class B felony

neglect of a dependent.2

                                 II. Inappropriateness of Sentence

        Schnitz argues that his sentence is inappropriate pursuant to Indiana Appellate Rule

7(B), which states, “The Court 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




        2
          The sentence for this conviction was ordered concurrent with the other sentences, so the vacation of
this conviction does not affect Schnitz’s aggregate sentence.


                                                     10
light of the nature of the offense and the character of the offender.”3 When reviewing a

sentence, our principal role is to leaven the outliers rather than necessarily achieve what is

perceived as the correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We

do not look to determine if the sentence was appropriate; instead we look to make sure the

sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Schnitz

has the burden to show that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d

482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

        As for the nature of the offense, “the advisory sentence is the starting point the

Legislature selected as appropriate for the crime committed.” Pierce v. State, 949 N.E.2d

349, 352 (Ind. 2011). For a class B felony, the advisory sentence is ten years, and the

sentencing range is six to twenty years. Ind. Code § 35-50-2-5. For a class D felony, the

advisory sentence is one and a half years, and the sentencing range is six months to three

years. Ind. Code § 35-50-2-7. “‘[A]ppellate review should focus on the forestthe aggregate

sentencerather than the treesconsecutive or concurrent, number of counts, or length of the

sentence on any individual count.’” Pierce, 949 N.E.2d at 352 (quoting Cardwell, 895

N.E.2d at 1225). For his three class B felony convictions and one class D felony conviction,

Schnitz received an aggregate sentence of forty-seven years.




        3
            Schnitz also argues that the trial court did not properly weigh the aggravating and mitigating
circumstances. However, “‘the trial court no longer has any obligation to weigh aggravating and mitigating
factors against each other when imposing a sentence’ and thus ‘a trial court can not now be said to have abused
its discretion in failing to properly weigh such factors.’” Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012)
(quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218).


                                                      11
      Here, the nature of the offenses was undeniably horrific. At the sentencing hearing,

the State submitted the report of Dr. Antoinette L. Laskey, M.D., M.P.H., who was involved

with Raiden’s care at Riley Hospital for Children, which detailed Raiden’s permanent

medical condition:

      Raiden presented to medical care at the age of 4 months in critical condition
      and it was unclear that he would survive his injury. While alone in the care of
      Troy, Raiden suffered irreparable brain damage, brain injuries on more than
      one occasion, multiple skull fractures, massive retinal hemorrhages and torn
      labial frenula (the piece of skin attaching the lip to the gum). The history
      provided at the time of my medical interview with Troy was completely
      implausible to explain any of the injuries his son received. At the time of
      [Raiden’s] initial hospitalization[,] it was anticipated that he would not survive
      due to the extremely severe nature of the brain injury. Due to heroic medical
      interventions however, he did survive. It should be noted that in the hospital
      after his injuries were diagnosed, we offered the opportunity to withdraw
      medical support as it was what we call “futile care”. Futile care is when a
      person sustains such a substantial, devastating brain injury there is no hope for
      meaningful recovery and a person (if old enough) or their family (if the patient
      is a dependent) would not want to live with this injury, it would be ethically
      defensible to remove support and allow the process to progress to deatha
      process that is only being thwarted by extreme medical interventions. In this
      case, Raiden’s father refused to consider this option.

      In order to prepare for the rest of Raiden’s life given his injuries, he required a
      tracheostomy because he cannot breathe on his own; a ventilator because
      without it he could not breathe; a G-tube because he cannot swallow food; a
      Nissen fundoplication, a medical procedure to tie off his stomach at the top to
      prevent aspiration pneumonia; round the clock nursing care because if his trach
      clogged, he would suffocate, and a list of over a dozen medications he requires
      to control his seizures, digestion, pain, extreme hypertension and other medical
      complications associated with his inflicted head injury.

      Given the extent of his injuries, Raiden will never walk, talk, potty train, sit
      independently or eat by mouth. His life will certainly not be of a normal
      lengthmost children who sustain injuries like his will die in a matter of years
      due to infection (pneumonia, urinary tract, sepsis) or as a complication of
      seizures or high blood pressure. He will always be completely dependent on


                                              12
       care providers, 24 hours a day, to ensure he can breathe and that he gets
       adequate nutrition.

       By all accounts, Raiden was a normal, healthy, growing baby on the day he
       was injured at the hands of his caregiver. A 4 month old can smile, laugh,
       recognize faces of caregivers, sit, roll over, hold things in their hands. Raiden
       at now 16 months will never do these things, nor any of the things a typical 16
       month old can do (walk, run, build towers with blocks, feed themselves, get
       undressed, have recognizable words, follow simple directions). The person
       Raiden was and would be on the day the ultimate event occurred is no longer a
       reality.

State’s Ex. 2.

       Given that Raiden was injured by the person who was primarily responsible for him,

that he was battered multiple times, and that his injuries will permanently prevent him from

having any semblance of a normal life, even the maximum possible sentence would not be

inappropriate given the nature of the crimes. Given the nature of the offense, we are

unpersuaded by Schnitz’s argument that consecutive sentences are inappropriate because

there was only one victim.

       As for Schnitz’s character, there are some circumstances that reflect favorably on it.

Schnitz is remorseful and pled guilty without the benefit of a plea agreement. He has no

criminal history. In the last year, he attended drug counseling, engaged in individual

counseling, obtained full-time employment, and pays child support. His character is also

positively reflected by his family’s forgiving and supportive testimony. Other circumstances

reflect negatively. The presentence investigation report shows that Schnitz has a history of

smoking marijuana on a daily basis. He switched to spice and was smoking it every ten to

twenty minutes at the time of the offenses. Also, Schnitz failed to inform medical personal


                                              13
as to the true source of Raiden’s injuries and did not reveal the truth about his conduct to

police until it was clear that his version of events was inconsistent with Raiden’s injuries.

This shows that he was more concerned about himself than he was for Raiden. Overall,

Schnitz’s character does not warrant a reduction in his sentence. Schnitz has failed to

persuade us that his sentence is inappropriate in light of the nature of the offenses and his

character. Therefore, we affirm his forty-seven-year sentence.

       Affirmed in part and vacated in part.

BARNES, J., and PYLE, J., concur.




                                               14
