Suliveres (defendant) had sex with his brother’s girlfriend by impersonating the brother. On the night of the incident, while the girlfriend slept alone in the bedroom she and her boyfriend shared, Suliveres entered the room, and the girlfriend woke up. The room was dark, and the girlfriend could not see that it was Suliveres. The girlfriend assumed her boyfriend had just returned home from work, and she called Suliveres by her boyfriend’s name. Suliveres got into bed and had intercourse with the girlfriend. The girlfriend later testified that during the intercourse she believed Suliveres was her boyfriend and that if she had known it was Suliveres she would never have consented. Suliveres was charged with rape and tried before a jury. The defense argued that the sex was consensual; the prosecution argued that Suliveres obtained the girlfriend’s consent fraudulently. The jury could not reach a verdict, and the judge declared a mistrial. Suliveres moved to dismiss the indictment, but the trial court dismissed the motion. Suliveres appealed the trial court’s denial of the motion to dismiss.