State v. Delgado
In State v. Delgado, 174 Ariz. 252, 848 P.2d 337 (App. 1993), the indictment alleged the defendant had recklessly attempted to commit second-degree murder, an offense not recognized in Arizona. Id. at 254, 848 P.2d at 339.
The trial court granted the state's motion to amend the indictment to conform to the evidence of intentional commission of attempted second-degree murder and instructed the jury pursuant to the amendment. Id.
On appeal, Delgado claimed the amendment was improper, but this court found the issue waived because it had not been raised below. Id. at 254, 255, 848 P.2d at 339, 340.
The Court also found no error because the defendant had not been deprived of adequate notice and an opportunity to defend. Id. at 255, 848 P.2d at 340.