State v. Moorman

ARNOLD, Judge.

Defendant first contends that the trial court erred in denying his motion for dismissal of the charges of second degree rape and second degree sexual offense based upon insufficiency of the evidence. We hold the trial court properly denied dismissal of the charge of second degree sexual offense. As to the charge of second degree rape, we find there is a fatal variance between the indictment and the proof, and therefore the judgment as to this charge must be arrested.

The indictment for second degree rape in the present case reads:

Date of Offense: September 1, 1984 Offense in…