Massachusetts Appeals Court April 13, 2007, No. 05-P-1123 (Commonwealth v. Butler)

Perretta, J.

In May of 2003, a jury found the defendant guilty of the lesser included crime of rape on indictments charg*659ing him with aggravated rape and burglary committed in 1991.1 He argues on appeal that it was error to deny his motion to dismiss the charges based on a violation of the provisions of Mass.R.Crim.P. 36, 378 Mass. 909 (1979).