The Indiana Court of Appeals “regrettably” reversed one of a mother’s conviction for neglect after her baby was found to have been dead for two days before being taken to the hospital, finding that one of the woman’s neglect convictions violated her right to be free from double jeopardy.

In November 2015, Makenzie Shultz went to check on her daughter, B.G., who was allegedly napping. When Shultz found her, B.G. was dead. But at the hospital, a doctor realized B.G. had been dead for roughly two-days as her skin was green and smelled of decomposition.

B.G.’s father, Chad Giroux, Jr., admitted to police that he and Shultz knew B.G. was dead and agreed to find her when a relative was present and to react like it just happened. Shultz was thus convicted 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; 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. After the Level 5 and Level 6 neglect counts were merged with the Level 3 count, Schultz received a 44-year sentence.

On appeal, Shultz argued her convictions for Level 1 felony neglect of a dependent resulting in death and Level 3 felony neglect of a dependent resulting in serious bodily injury violated her constitutional right to be free from double jeopardy. Specifically, she contended the conviction violated the “actual evidence test.”

Shultz was not formally charged, but rather indicted by a grand jury. The appellate court found that the indictments were “vague and mentioned only the elements of the crime.” It noted that the indictments did not appear to allege any facts to distinguish the act of neglect underlying each charge, nor did it inform the jury which pieces of evidence supported the charge of neglect resulting in death and which other distinct pieces of evidence supported the charge of neglect resulting in serious bodily injury.

Therefore, the appellate court ultimately found that Shultz’s double jeopardy argument could stand.

“We regret that we must vacate one of Shultz’s convictions for neglect,” Judge Melissa May wrote for the court.  “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,” May continued. “Accordingly, we vacate Shultz’s conviction of Level 3 felony neglect.”

However, the appellate court found sufficient evidence to support Shultz’s conviction of neglect of a dependent resulting in death in Makenzie D. Shultz v. State of Indiana, 790A2-1712-CR-2835. The case was remanded for resentencing.