Rehearing: COA improperly applied continuous crime doctrine in rape case

A man’s strangulation conviction associated with a rape conviction in the same case will remain vacated despite an appellate panel’s agreement on rehearing that it improperly applied the continuous crime doctrine to his conviction.

The Indiana Court of Appeals in August reversed Manford Girten’s conviction of Level 6 felony strangulation based on the continuous crime doctrine, which it had also applied to his conviction of Level 3 felony rape. On petition for rehearing, the appellate court agreed with the state that it had improperly applied that doctrine.

“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,” Judge Melissa May wrote for the appellate court on rehearing in Manford F. Girten Jr. v. State of Indiana, 18A-CR-2252,

“In [Hines v. State, 30 N.E.3d 1216 (Ind. 2015)],   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. The same reasoning applies to this case.”

The appellate court therefore found that because the state prosecutor in Girten used the evidence of the struggle that ensued on the bed to prove the force required for the rape, and because the strangulation occurred at the same time, the jury reasonably could have relied on the strangulation as evidence that the intercourse was forced.

“Therefore, Girten’s simultaneous conviction of both crimes violates the actual evidence test,” the appellate panel concluded. “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.”