Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-2252 | November 21, 2019 Page 1 of 6

OPINION ON REHEARING

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

IN THE

COURT OF APPEALS OF INDIANA

Manford F. Girten Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

November 21, 2019

Court of Appeals Case No.

18A-CR-2252

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven P. Meyer, 

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-CR2252, 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). 
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“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. 
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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 
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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).
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[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. 
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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.