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Girten v. State

Court of Appeals of Indiana

November 21, 2019

Manford F. Girten Jr., Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal 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. Lafayette, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

          OPINION ON REHEARING

          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). "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.
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 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. ...


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