Manford F. Girten Jr., Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
from the Tippecanoe Superior Court The Honorable Steven P.
Meyer, Judge Trial Court Cause No. 79D02-1802-F3-4
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana J.T. Whitehead Deputy Attorney General
OPINION ON REHEARING
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).
"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.
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
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.
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
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
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.