## Facts

- The victim lived in an apartment with her small child and went to bed at night.
- The apartment was forcibly entered during the night.
- The victim testified she was asleep and awoke to find the defendant engaging in sexual intercourse with her; she did not consent.
- The defendant claimed the victim consented and asserted he mistook her for someone else.
- A jury convicted the defendant of second-degree rape and second-degree sexual offense and, on the burglary indictment, of misdemeanor breaking.
- Post-trial, the defendant pursued relief alleging ineffective assistance based on trial counsel’s conduct, including drug use during trial, falling asleep at counsel table, unfulfilled promises in opening statement, and inadequate investigation and presentation of available defense evidence.
- The Court of Appeals arrested judgment on the rape conviction for fatal variance (indictment alleged “by force and against her will,” while evidence showed the victim was asleep), affirmed the remaining convictions, and rejected the ineffective-assistance claim.

## Issues

1. Whether proof that the victim was asleep when intercourse began fatally varied from an indictment alleging intercourse “by force and against [the victim’s] will.”
2. Whether trial counsel’s conduct and omissions denied the defendant effective assistance of counsel requiring a new trial.

## Decision

- The Supreme Court of North Carolina reversed the Court of Appeals.
- The court held there was no fatal variance because, when a victim is asleep or otherwise incapacitated, force and lack of consent are implied by law, satisfying an indictment alleging force and nonconsent.
- The court held the defendant was denied effective assistance of counsel under the Strickland standard due to deficient performance and resulting prejudice in a credibility-driven trial.
- The court awarded the defendant a new trial on all charges.

## Legal Principles

- A variance between indictment and proof warrants relief only if the proof materially departs from the indictment in a way that misleads the defendant or creates double-jeopardy risk.
- In rape prosecutions, when the victim is asleep or physically incapable of resistance at the time of penetration, force and lack of consent may be implied as a matter of law; intercourse under such circumstances satisfies an allegation that the act was “by force and against [the victim’s] will.”
- Ineffective assistance of counsel is shown by (1) deficient performance below objective professional standards and (2) prejudice, meaning a reasonable probability of a different result absent counsel’s errors.
- In a case turning largely on credibility, counsel’s drug use during trial, sleeping during testimony, failure to investigate or present available corroboration, and unfulfilled promises to the jury can establish both deficient performance and prejudice.

## Conclusion

The court held that evidence the victim was asleep did not fatally vary from an indictment alleging force and nonconsent because the law implies those elements when a victim cannot meaningfully consent, but it nonetheless ordered a new trial on all charges because trial counsel’s misconduct and failures deprived the defendant of effective assistance in a trial dependent on witness credibility.


State v. Moorman, 358 S.E.2d 502 (N.C. 1987)