May, Judge.
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 this case.
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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. 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).
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.
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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… 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. was forced to have intercourse. Therefore, Girten’s simultaneous conviction of both crimes violates the actual evidence test.
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.