State v. Loudner

PHILLIPS, Judge.

Defendant was convicted of engaging in a sex act with a person in his custody, a stepdaughter, in violation of G.S. 14-27.7, and sentenced to four years in prison. While the indictment in pertinent part alleged that defendant engaged “in a sexual act, to wit: performing oral sex” on the child involved, the State’s evidence showed only that the defendant placed his finger in her vagina, which by definition is a separate sex offense under the terms of G.S. 14-27.1(4). This variance between charge and proof is the basis for defendant’s contention that the court erred in denying…