State v. Moorman

358 S.E.2d 502 (1987)

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Nature of the Case

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Facts

V was out with friends, returned to her dorm room and fell asleep. V dreamed she was engaging in sexual intercourse and awoke to find D on top of her having vaginal intercourse. V tried to sit up, but D pushed her back down. V offered no further resistance. D then engaged in anal intercourse with V. V went to the door and turned on the light and D told her not to call the police as he was V's roommate's friend and that he thought that V was the roommate and that he would not have done it if he knew that it was V. V finally made a statement two days later but told several friends immediately. D testified that V told him not to worry as it could have happened to anybody. The State tried D under an indictment of forcible rape. D was convicted of raping a person that was physically helpless to resist. The Court of Appeals reasoned that this fatal variance between the indictment and the conviction for a crime not charged demanded that the judgment be vacated. The State appealed.