                                                                                     FILED
      OPINION ON REHEARING                                                      Nov 21 2019, 9:48 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
                                                                J.T. Whitehead
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Manford F. Girten Jr.,                                    November 21, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-2252
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Steven P. Meyer,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                79D02-1802-F3-4



      May, Judge.

[1]   We decided Girten’s appeal on August 16, 2019. Girten v. State, No. 19A-CR-

      2252, slip op. (Ind. Ct. App. Aug. 16, 2019). In that decision, we reversed one

      conviction based on the continuous crime doctrine. Id. at 6. In its petition for

      rehearing, the State argues the continuous crime doctrine is inapplicable in this

      situation, and in support it cites Hines v. State, 30 N.E.3d 1216 (Ind. 2015).
      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-2252 | November 21, 2019                 Page 1 of 6
      “The continuous crime doctrine is a rule of statutory construction and common

      law limited to situations where a defendant has been charged multiple times

      with the same offense.” Id. at 1219. Because we applied the continuous crime

      doctrine to Girten’s convictions of rape and strangulation, the State appears

      correct that we improperly applied that doctrine to vacate Girten’s conviction of

      strangulation.


[2]   However, our misapplication of the continuous crime doctrine does not require

      us to modify the outcome of Girten’s appeal because the strangulation

      conviction would have needed to be vacated under the actual evidence test used

      for Double Jeopardy analysis. In Hines, despite finding the continuous crime

      doctrine did not apply, our Indiana Supreme Court applied the actual evidence

      test to determine Hines’ right to be free from double jeopardy was violated. Id.

      at 1225. The same reasoning applies to this case.


[3]   The relevant facts were provided in the memorandum decision:


              E.A. and Girten were watching a show when Girten tried to
              place E.A.’s hand on his genitals. When she pulled back, Girten
              pinched her arm, leaving it feeling weak and tingly. Girten told
              E.A. he could paralyze her arm.


              E.A. went to the bedroom and stood at the foot of her bed.
              Girten came up behind her and pushed her onto the bed. Girten
              pulled off E.A.’s pants and underwear as she was trying to
              escape. As E.A. tried to crawl away, Girten flipped E.A. over
              onto her back. E.A. begged for Girten to stop and give back her
              underwear. Girten told her to “shut up.” Girten told E.A. he
              would return her underwear if she stopped begging him to stop.

      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-2252 | November 21, 2019   Page 2 of 6
              E.A. became silent, but instead of returning her underwear,
              Girten moved his face toward her genitals. Girten put his hand
              around E.A.’s throat and used his thumb to make it hard for her
              to breathe. When Girten let go of E.A.’s throat, he used his hand
              to keep E.A. from talking.


              During all of this, Girten managed to undress. Girten took his
              penis and put the tip in her vagina and anus, alternating between
              them. Girten told E.A. he could use either his penis or his
              tongue. Girten forced E.A.’s legs apart. E.A. told Girten to stop
              and continued to resist. Girten put his face towards E.A.’s
              genitals and inserted his tongue into her vagina. E.A. continued
              to struggle and to beg Girten to stop. Girten then stuck his
              fingers in her vagina. When Girten stopped, E.A. curled into the
              fetal position. Girten amusingly told E.A.: “You say you don’t
              want it, but I can tell that you’re wet.” E.A. told Girten she did
              not want it.


              Girten’s demeanor became angry, and he pulled E.A. across the
              bed, forced himself between E.A.’s legs, and inserted his penis
              into her vagina. At the same time, he began to interrogate E.A.
              about Austermann. E.A. told Girten if he did not stop she would
              scream. Girten stopped, and E.A. ran out of the room wrapped
              in a blanket.


      Girten, slip op. at 1-2 (internal record citations omitted).


[4]   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). “When two convictions are


      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-2252 | November 21, 2019   Page 3 of 6
      found to contravene double jeopardy principles, a reviewing court may remedy

      the violation by reducing either conviction to a less serious form of the same

      offense if doing so will eliminate the violation. If it will not, one of the

      convictions must be vacated.” Richardson v. State, 717 N.E.2d 32, 54 (Ind.

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

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


[5]   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. The actual

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

      established by separate and distinct facts.” Richardson, 717 N.E.2d at 54. 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.


[6]   The elements of Level 3 felony rape as charged against Girten are: (1) Girten;

      (2) knowingly or intentionally; (3) had sexual intercourse; (4) with E.A.; (5)

      while E.A. was compelled by force or imminent threat of force. See Ind. Code §

      35-42-4-1(a)(1). The elements of Level 6 felony strangulation as charged

      against Girten are: (1) Girten; (2) in a rude, angry, or insolent manner; (3)

      knowingly or intentionally; (4) applied pressure to the throat or neck of E.A.;

      (5) and/or obstructed the nose or mouth of E.A.; (6) in a manner that impeded

      the normal breathing or the blood circulation of E.A. See Ind. Code § 35-42-2-9

      (c)(1)(2).



      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-2252 | November 21, 2019   Page 4 of 6
[7]   During closing argument, when discussing the evidence as it applies to

      strangulation, the prosecutor explained to the jury that E.A. and Girten were in

      a struggle on the bed. Specifically, the State’s attorney said:


              So what was going on at the time when he did this, when he put
              the pressure on her throat, when he covered her mouth and nose?
              Well, E.A. told you he was angry in the bedroom, she was
              struggling with him on the bed, and that he kept telling her to shut
              up.


      (Tr. Vol. III at 184) (emphasis added). Later on, the State’s attorney discussed

      the elements of rape. When discussing whether E.A. was compelled by force or

      imminent threat of force, the State said:


              When she was compelled by force or imminent threat of force.
              Well, what do we know? Well, she told you that she didn’t want
              to do any of this. She did not consent to any of the acts in the
              bedroom, but this is more than just the lack of consent. You
              have to have more to prove force or imminent threat of force.
              What did she tell you? That he held her down on the bed, that she
              struggled. She tried to resist, that she tried to “clench down there”
              were her words so he couldn’t insert his penis, couldn’t do
              anything, that he was applying force into - on her vaginal
              opening and also her anal opening. And I want you to remember
              her demeanor when she was telling you this, when she was on
              the stand retelling you all about that night and what happened.


      (Id. at 189) (emphasis added). In that part of his argument, the prosecutor used

      the evidence of the struggle on the bed to prove the force required for the rape.

      Because the strangulation occurred during that same struggle on the bed, the

      jury reasonably could have relied on the strangulation as evidence that E.A.

      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-2252 | November 21, 2019   Page 5 of 6
      was forced to have intercourse. Therefore, Girten’s simultaneous conviction of

      both crimes violates the actual evidence test.


[8]   While the State is correct about our misapplication of the continuous crime

      doctrine, Girten’s strangulation conviction nevertheless should have been

      vacated on double jeopardy grounds. We affirm our earlier opinion in all other

      respects.


      Mathias, J., and Brown, J., concur.




      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-2252 | November 21, 2019   Page 6 of 6
