                                                                     FILED
                                                                Dec 07 2018, 8:11 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Bruce W. Graham                                           Curtis T. Hill, Jr.
      Graham Law Firm P.C.                                      Attorney General of Indiana
      Lafayette, Indiana
                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                      IN THE
             COURT OF APPEALS OF INDIANA

      Makenzie D. Shultz,                                       December 7, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A02-1712-CR-2835
                 v.                                             Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Randy J. Williams,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                79D01-1606-F1-10



      May, Judge.


[1]   Makenzie D. Shultz appeals following her convictions of Level 1 felony neglect

      of a dependent resulting in death, 1 Level 3 felony neglect of a dependent



      1
          Ind. Code § 35-46-1-4(a)(1-3) & (b)(3) (2014).


      Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018              Page 1 of 13
      resulting in serious bodily injury, 2 Class A misdemeanor false informing, 3 Class

      A misdemeanor failure to report a dead body, 4 Level 6 felony obstruction of

      justice, 5 and two counts of Level 6 felony perjury. 6 Shultz argues she was

      subjected to double jeopardy, there is insufficient evidence to support her

      conviction of neglect of a dependent resulting in death, and her sentence is

      inappropriate. We affirm in part, reverse in part, and remand.



                                Facts and Procedural History
[2]   On Monday, November 16, 2015, Shultz went to check on her daughter B.G.,

      who was allegedly napping. B.G. was dead. Shultz and her boyfriend, Chad

      Giroux Jr., who is the father of B.G., asked Lauren Mood, Giroux’s sister who

      was visiting, to drive them to the hospital.


[3]   At the hospital, Dr. Andrew Alaimo attempted to treat B.G., who had no

      heartbeat and was very thin with little muscle tone. Dr. Alaimo quickly

      realized that B.G. had been dead for “quite some time.” (Tr. Vol. II at 58.)

      B.G.’s body was at room temperature and she appeared emaciated. B.G.’s skin




      2
          Ind. Code § 35-46-1-4(a)(1-3) & (b)(2) (2014).
      3
          Ind. Code § 35-44.1-2-3(d)(1) (2014).
      4
          Ind. Code § 35-46-19-3 (2008).
      5
          Ind. Code § 35-44.1-2-2(a)(3) (2014).
      6
          Ind. Code § 35-44.1-2-1(a) (2014).


      Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018   Page 2 of 13
      was green and smelled of decomposition. Dr. Aliamo estimated B.G. had been

      dead for two days.


[4]   Deputy Coroner Mary Jasheway investigated B.G.’s death. She noted the

      pattern imprinted on B.G.’s face matched the blanket she was brought in with

      and opined that white marks on B.G.’s nose indicated something pushed her

      nose up. During the autopsy, Dr. Allan Griggs noted many signs B.G. had

      been neglected. Dr. Griggs concluded B.G. was dehydrated, constipated, and

      malnourished. Dr. Griggs deduced B.G. had been dead for longer than twenty-

      four hours and her cause of death was asphyxiation.


[5]   Detective Daniel Long met with Giroux and Shultz separately. Detective Long

      noticed their stories did not match, so he went to the Shultz and Giroux home

      to investigate. Detective Long noted B.G. had slept in a downstairs closet in a

      bed made of blankets stacked on the floor. There was no baby monitor in the

      closet. Giroux told Detective Long that, on multiple occasions, he had found

      B.G. in the closet with blankets or clothing over her face. Giroux thought this

      was being done to muffle B.G.’s crying. Giroux later confessed to Detective

      Long that B.G. had died Sunday, November 15, 2015. 7 Giroux admitted he

      and Shultz agreed to find B.G. dead when Mood was present and to react like it

      just happened.




      7
        It is unclear when B.G. actually died. Based on the condition of B.G.’s body, the coroner estimated B.G.
      had been dead for over 24 hours when she was brought to the hospital on November 16. However, Giroux
      testified B.G. was “cold . . . room temperature” when he held her on November 15. (Tr. Vol. III at 96.)

      Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018                      Page 3 of 13
[6]   At trial, a jury found Shultz guilty of all crimes charged: 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, 8 Level 6 felony neglect of a dependent, 9 Class A misdemeanor

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

      6 felony obstruction of justice. Shultz then pled guilty to two counts of Level 6

      felony perjury. The trial court merged the findings of Level 5 felony neglect

      and Level 6 felony neglect with the Level 3 felony neglect. The court imposed a

      forty-four-year sentence with four years suspended to probation.



                                     Discussion and Decision
                                            Double Jeopardy
[7]   Shultz argues her convictions of Level 1 felony neglect of a dependent resulting

      in death and Level 3 felony neglect of a dependent resulting in serious bodily

      injury violate her constitutional right to be free from double jeopardy. See Ind.

      Const. art. 1, § 14 (“No person shall be put in jeopardy twice for the same

      offense.”). Two offenses are the “same offense” in violation of Indiana’s

      Double Jeopardy Clause 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 elements of another



      8
          Ind. Code § 35-46-1-4(a)(1-3) & (b)(1) (2014).
      9
          Ind. Code § 35-46-1-4(a)(1-3) (2014).


      Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018   Page 4 of 13
      challenged offense. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). We review

      de novo whether a defendant’s convictions violate this provision. Spears v. State,

      735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied.


[8]   Shultz claims her convictions violate the “actual evidence test.” The actual

      evidence test requires us to “determine whether each challenged offense was

      established by separate and distinct facts.” Richardson v. State, 717 N.E.2d 32,

      53 (Ind. 1999), holding modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013)

      (modification as to cases involving hung jury or acquittal). To determine what

      facts were used to convict, we consider the charging information, the final jury

      instructions, the evidence, and the arguments of counsel. Davis v. State, 770

      N.E.2d 319, 324 (Ind. 2002), reh’g denied.


[9]   In order to convict Shultz of either version of neglect, the State needed to prove

      Shultz was:


              A person having the care of a dependent, whether assumed
              voluntarily or because of a legal obligation, who knowingly or
              intentionally: (1) place[d] the dependent in a situation that
              endanger[ed] the dependent’s life or health; (2) abandon[ed] or
              cruelly confine[d] the dependent; [or] (3) deprive[d] the
              dependent of necessary support . . . .


      Ind. Code § 35-46-1-4(a) (2014) (defining neglect as a Level 6 felony). To

      convict Shultz of neglect as a Level 1 felony, the State also had to prove Shultz

      was “at least eighteen years of age” and the neglect “result[ed] in the death of a

      dependent who [was] less than fourteen (14) years of age.” I.C. § 34-46-1-

      4(b)(3) (2014). To convict Shultz of neglect as a Level 3 felony, the State had to
      Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018   Page 5 of 13
       prove Level 6 felony neglect that resulted in serious bodily injury. I.C. § 34-46-

       1-4(b)(2) (2014).


[10]   Shultz was not formally charged in this case. Instead, she was indicted by a

       grand jury. The indictments were vague and mentioned only the elements of the

       crime. The Level 1 felony indictment read as follows:


                The Grand Jury of the County of Tippecanoe duly and legally
               impaneled upon their oath or affirmation do present that there is
               sufficient cause to determine during March 17, 2015 through
               November 16, 2015, in the County of Tippecanoe, State of
               Indiana, Chad A. Giroux, Jr. and or Makenzie D. Shultz,
               person(s) having the care of a dependent, to wit: B.G., Whether
               assumed voluntarily or because of a legal obligation, did
               knowingly or intentionally place said B.G. in a situation that
               endangered his/her life or health, abandon or cruelly confine said
               B.G; and/or deprive said B.G. of necessary support, and further,
               said offense was committed by a person at least eighteen years of
               age, to wit: Makenzie Shultz being twenty-one or twenty-two
               (21-22) years of age and/or Chad Giroux, Jr. being twenty-six
               (26) years of age and resulted in the death of B.G., a dependent
               less than fourteen (14) years of age[.]


       (App. Vol. 2 at 22.) The indictment for the Level 3 felony stated:


               The Grand Jury of the County of Tippecanoe duly and legally
               impaneled upon their oath or affirmation do present that there is
               sufficient cause to determine during March 17, 2015 through
               November 16, 2015, in the County of Tippecanoe, State of
               Indiana, Chad A. Giroux, Jr. and/or Makenzie D. Shultz,
               person(s) having the care of a dependent, to Wit: B.G., whether
               assumed voluntarily or because of a legal obligation, did knowing
               or intentionally place said B.G. in a situation that endangered
               his/her life or health, abandon or cruelly confine said B.G.,

       Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018   Page 6 of 13
               and/or deprive said B.G. of necessary support; and further, said
               offense resulted in serious bodily injury to B.G.


       (Id. at 24.) These indictments do not appear to allege any facts to distinguish the act

       of neglect underlying each charge. Compare with Ramon v. State, 888 N.E.2d 244, 254

       (Ind. Ct. App. 2008) (charging information alleged separate facts in support of the

       common elements of the two crimes).


[11]   The jury instructions tracked the language of the indictments. (See App. Vol. 2

       at 118-134.) Thus, they also did not inform the jury which pieces of evidence

       supported the charge of neglect resulting in death and which distinct other

       pieces of evidence supported the charge of neglect resulting in serious bodily

       injury.


[12]   As the trial court found when reviewing the double jeopardy argument during

       the sentencing hearing, there were acts committed by Shultz that justified a

       second conviction of neglect. Dr. Griggs testified B.G.’s cause of death was

       asphyxiation. He also concluded that prior to her death, B.G. had been

       dehydrated, constipated, and malnourished, and those conditions indicative of

       neglect would have produced “extreme pain.” (Tr. Vol. II at 121.)


[13]   However, to avoid double jeopardy, the prosecutor needed to separate the facts

       in support of the multiple counts of neglect and present argument that clarified

       for the jury the facts it needed to find to support each separate count. During

       closing arguments, the prosecutor reviewed each count separately, explaining

       the elements of the count and the evidence that proved those elements.


       Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018     Page 7 of 13
[14]   For the Level 1 felony, neglect resulting in death, the prosecutor presented the

       evidence of asphyxiation to prove death. (See Tr. Vol. 4 at 8.)


[15]   Then, when talking about Level 3 felony neglect resulting in serious bodily

       injury, the prosecutor pointed out B.G.’s other injuries, as she needed to do to

       demonstrate a separate crime, but she also repeatedly mentioned the

       asphyxiation:


               Looking at the second charge, the second – as we talked about in
               jury selection the first, second, third and fourth charges are very
               similar, but in this case specifically because we’re talking about a
               wide range of time different things are considered for each one as
               well. Here we’re talking about other things outlined in the
               autopsy report not just the asphyxiation. We’re also talking about
               her emaciation, her dehydration, her malnutrition and her
               impacted bowel. So here the only element that changes is that
               last one. Elements one and two you can apply the same evidence
               that you did for count one.


       (Id. at 10) (emphasis added).


               …not again just the asphyxiation but also her malnutrition, her
               impacted bowel and her dehydration.


       (Id.) (emphasis added).


               And as far as serious bodily injury goes, you’ll have a definition
               of serious bodily injury and that being serious or permanent
               disfigurement, unconsciousness, extreme pain, permanent or
               protracted loss or impairment of the function of a bodily
               member, organ or loss of a fetus. The asphyxiation alone accounts
               for some of these, but there are also separate options as the result of
               the Defendant’s conduct.

       Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018    Page 8 of 13
       (Id. at 15) (emphasis added).


[16]   Although not directly at issue in this appeal because the trial court merged the

       two lesser counts of neglect into the Level 3 felony conviction, the prosecutor

       continued this conflation of the asphyxiation with the other injuries while

       discussing those lesser counts:


               And this count you can apply it very much the same evidence as
               count two, very much.


       (Id. at 16.)


               Bodily injury is defined by law, it means any impairment of
               physical condition including physical pain. And again, you can
               use the same evidence as Count II and we know from Dr. Griggs
               that there would have been physical pain. Also, any impairment,
               I would submit to you that means malnourishment, dehydration,
               emaciation, impacted bowel, all would be an impairment of her
               body. By getting serious bodily injury we also have bodily injury.


       (Id.)


               However, again, I would submit to you we have serious bodily
               injury, not only in all of the conditions that Dr. Griggs
               mentioned, but also the asphyxiation that’s not separate. It’s a
               separate condition, caused at a separate time, but still a
               consideration. Count IV is just Neglect of a Dependent with no
               end result that you have to find. This is the same as the others
               except there is – there just is no fifth element here. And you can
               apply the same evidence you did in Count II and Count III. And
               remember for these neglect counts you are considering
               everything, everything, the whole picture that you’ve seen. From
               no longer receiving the right formula, at least not from WIC, to


       Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018   Page 9 of 13
                not taking her to the doctor, to the living conditions on top of the
                asphyxiation.


       (Id. at 16-17) (emphasis added).


[17]   We regret that we must vacate one of Shultz’s convictions for neglect. When

       the State asked the jury to convict Shultz for the four counts of neglect, the

       prosecutor explicitly told the jury it could rely on asphyxiation to support all of

       those counts. Thus, there is a reasonable probability the jury relied on the same

       evidence to find Shultz guilty of all four counts. Accordingly, we vacate

       Shultz’s conviction of Level 3 felony neglect. 10 See Clark v. State, 732 N.E.2d

       1225, 1229 (Ind. Ct. App. 2000) (vacating two attempted arson convictions

       when all three convictions were based on one act).


                                  Sufficiency of the Evidence
[18]   Shultz next argues there was insufficient evidence to support her conviction of

       neglect of a dependent resulting in death. When considering the sufficiency of

       evidence, “a reviewing court does not reweigh the evidence or judge the

       credibility of the witnesses.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

       We must affirm “if the probative evidence and reasonable inferences drawn




       10
          Shultz raises a third issue on appeal, which is that her sentence is inappropriate. Because we vacate
       Shultz’s conviction of Level 3 felony neglect, we also vacate the 5-year sentence imposed for that crime,
       which was to be served consecutive to the 35-year sentence imposed for Level 1 felony neglect. Because trial
       courts often fashion individual sentences with an eye toward reaching a desired final cumulative sentence,
       see, e.g., Sanjari v. State, 981 N.E.2d 578, 583 (Ind. Ct. App. 2013) (recognizing the trial court’s overall plans
       when sentencing), trans. denied, we remand for the court to resentence Shultz in light of the vacated sentence.
       As we remand for resentencing, we need not address Shultz’s argument that her sentence is inappropriate.

       Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018                          Page 10 of 13
       from the evidence could have allowed a reasonable trier of fact to find the

       defendant guilty beyond a reasonable doubt.” Id. at 126 (internal citation

       omitted). Shultz does not dispute the evidence of neglect. Instead, Shultz

       questions whether there was enough evidence to prove her actions were

       intentional and whether there was evidence her neglect resulted in the death of

       B.G.


[19]   As for Shultz’s mens rea, we first note the definition of neglect did not require

       her act to be intentional. See I.C. § 35-46-1-4(a) (2014) (defining neglect as an

       intentional or knowing act).


               Under the child neglect statute a ‘knowing’ mens rea requires a
               subjective awareness of a ‘high probability’ that a dependent had
               been placed in a dangerous situation. Because, in most cases,
               such a finding requires the factfinder to infer the defendant’s
               mental state, this Court must look to all the surrounding
               circumstances of a case to determine if a guilty verdict is proper.


       Pierson v. State, 73 N.E.3d 737, 741 (Ind. Ct. App. 2017) (internal citations and

       quotations omitted), trans. denied.


[20]   The State points to evidence that Shultz knew not having a proper bed for B.G.

       was dangerous. Nurse Analei Whitlock testified that, while meeting with

       Shultz, she explained how to safely put a baby down to sleep. Nurse Amy

       Guynn testified that, when a mother and child are released from the hospital,

       the family has a meeting with hospital staff and receives a booklet on safe sleep

       practices for the baby. Each parent must participate before they can be

       discharged. Shultz also has another daughter, L.G., who was older than B.G.
       Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018   Page 11 of 13
       and who was cared for by Shultz. Giroux testified Shultz was a good care

       provider for L.G. This evidence would allow a jury to determine that Shultz

       knew she was neglecting B.G. See Pierson, 73 N.E.3d at 737 (witness testimony

       about defendant being able to provide basic care for his other children was

       sufficient to show knowledge); and see Pierson, 73 N.E.3d at 741 (evidence was

       sufficient to prove father knowingly neglected child when he had been

       instructed on feeding and the child died of malnutrition).


[21]   As for Shultz’s neglect being the cause of death, the State presented evidence

       asphyxiation was the cause of death. The coroner listed the cause of death as

       asphyxia. (Ex. at 30.) 11 Deputy Coroner Mary Jasheway testified to the marks

       she observed on B.G. during the autopsy. Jasheway explained the marks are

       referred to as “modeling” and demonstrate something had been up against

       B.G.’s face. (Tr. Vol. II at 75.) Jasheway also explained that the white areas on

       the bridge of B.G.’s nose were a sign her nose had been pushed up. Giroux

       testified he had found B.G. with blankets on her face at least twice. Based on

       these facts, the evidence was sufficient to prove Shultz’s neglect resulted in

       B.G.’s death. See, e.g., McConniel v. State, 974 N.E.2d 543, 559 (Ind. Ct. App.

       2012) (evidence of malnourishment provided inference neglect was cause of

       death), trans. denied.




       11
        The State’s Exhibits do not have proper page numbers, so we cite to the page number in the electronic
       PDF.

       Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018                    Page 12 of 13
                                           Conclusion
[22]   Because the jury could have relied on the evidence of asphyxiation to support

       multiple findings of neglect, Shultz’s multiple convictions of neglect subjected

       her to double jeopardy. However, there was sufficient evidence to convict

       Shultz of neglect of a dependent resulting in death. Accordingly, we vacate

       Shultz's conviction of neglect of a dependent resulting in serious bodily injury

       and remand for the court to resentence Shultz for the remaining convictions.


[23]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana |Opinion 79A02-1712-CR-2835 | December 7, 2018   Page 13 of 13
