dissenting.
I respectfully dissent. The discovery in this case disclosed two separate acts of sexual contact. Either act, the child being subjected to touching defendant’s genitals or defendant touching the child’s genitals, would support a separate charge of sexual abuse. Comment to 1973 Proposed Code, § 566.010.1(3), V.A.M.S (1979). Each act of sexual contact is a separate and distinct crime of sexual abuse.
I fear the majority opinion may be construed to support the proposition that separate acts of sexual abuse are but one crime because they occur during a single sexual encounter. The fact that two acts occur simultaneously does not mean the crimes are identical. State v. Bolen, 731 S.W.2d 453, 458 (Mo.App.1987). The apparent “minuscule” difference in the two acts takes on significant meaning when one considers that each act of sexual contact is a separate felony, each punishable by up to five years in prison.
The information did not specify the act upon which the State intended to rely. As the information was consistent with the approved form, it was deemed to be sufficiently definite and certain. MACH-CR 20.16 (1979) and Rule 23.01(e).
When the State failed to specify which act of sexual contact it intended to prosecute, defendant’s remedy was to seek a bill of particulars under Rule 23.04. State v. Stark, 728 S.W.2d 301, 303 (Mo.App.1987). Defendant did so and was informed by the bill of particulars that the State intended to prosecute him for having touched the genitals of the victim.
The effect of a bill of particulars is to bind and restrict the State as to the scope of the indictment or information. State v. Moseley, 735 S.W.2d 46, 48 n. 1 (Mo.App.1987). The act of sexual contact described in the bill of particulars was at variance with the act of sexual contact which was proved and submitted to the jury in the verdict directing instruction.
The State elected, by way of the bill of particulars, to proceed against the defendant for having had sexual contact by touching the genitals of the victim. Even at the close of the State’s case, when the bill of particulars could have been amended to conform to the evidence, the State stood on the bill of particulars.
I disagree with the majority opinion’s implication that Doolen’s defense was based solely on alibi. After the State rested, the defendant moved for a directed verdict because the evidence did not support a finding that defendant touched the victim’s genitals, as averred in the bill of particulars. Although the motion was well taken and should have been sustained, the defendant at that point was forced to produce such evidence as he had in his defense. The fact that the defendant presented alibi evidence did not assuage the harm inflicted by allowing the State to prove and to submit the different act of sexual contact to the jury. Defendant had every right to rely and did rely on the defense that the evidence was insufficient to show he had touched the victim’s genitals.
The crux of my disagreement with the majority is the conclusion that the variance was not material to the merits of the case and was not prejudicial. Wise, 745 S.W.2d 776, 779 (Mo.App.1988), cited in the principal opinion, holds that a variance between the date of the offense disclosed in the bill of particulars and the date used in a verdict director was not a fatal variance because time is not an essential element of the crime of rape. State v. Wise, supra, at 779. While Wise decided time is not an essential element of rape, sexual contact, in one of its variations, is essential for the crime of sexual abuse.
A variance between what is alleged and what is proved is material when it is of such character that it could mislead the defendant at trial or deprive him of his right to be protected against another prosecution for the same offense. Berger v. United States, 295 U.S. 78, 83, 55 S.Ct. 629, 631, 79 L.Ed. 1314, 1318-19 (1935). I have no confidence in saying the bill of particulars did not mislead defendant or that he may not yet be subject to prosecution for touching the victim’s genitals. He was neither convicted nor acquitted of that *387charge. I believe the variance was material.
Finally, I believe the majority opinion does violence to the principle that an accused person cannot be brought into court to answer a charge for the commission of one offense and be convicted of an entirely different offense. Mo. Const, art. I, § 18(a); State v. Bowles, 360 S.W.2d 706, 708 (Mo.1962). If the State is not limited to convicting the defendant based upon the criminal act alleged in the bill of particulars, the defendant’s effort to determine exactly which act the State intended to prosecute by filing the motion for a bill of particulars was an exercise in futility. I do not believe that was what was intended by the authors of the rule permitting motions for a bill of particulars.