Makenzie D. Shultz, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
from the Tippecanoe Superior Court The Honorable Randy J.
Williams, Judge Trial Court Cause No. 79D01-1606-F1-10
Attorney for Appellant Bruce W. Graham Graham Law Firm P.C.
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Chandra K. Hein Deputy Attorney General
Makenzie D. Shultz appeals following her convictions of Level
1 felony neglect of a dependent resulting in death,
Level 3 felony neglect of a dependent resulting in serious
bodily injury,  Class A misdemeanor false informing,
Class A misdemeanor failure to report a dead body,
Level 6 felony obstruction of justice,  and two counts of
Level 6 felony perjury. 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.
and Procedural History
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.
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 was green and smelled of decomposition. Dr.
Aliamo estimated B.G. had been dead for two days.
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.
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. Giroux admitted he and Shultz agreed to
find B.G. dead when Mood was present and to react like it
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,  Level 6 felony neglect of a
dependent,  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
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 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),
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),
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 prove Level 6 felony neglect that resulted in serious
bodily injury. I.C. § 34-46-1-4(b)(2) (2014).
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 ...