IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-KA-01159-COA
MARCUS DEAN LEPARD A/K/A MARCUS APPELLANT LEPARD
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/28/2022 TRIAL JUDGE: HON. CALEB ELIAS MAY COURT FROM WHICH APPEALED: LEAKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOHN S. GRANT IV ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON DISTRICT ATTORNEY: STEVEN SIMEON KILGORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 10/08/2024 MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., LAWRENCE AND McCARTY, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Marcus Lepard, a youth pastor, was charged with fondling one of his Sunday school
students between February 2019 and February 2021. Following a trial, the jury found Lepard
guilty. The court sentenced him to a term of fifteen years in the custody of the Mississippi
Department of Corrections, with three years suspended and twelve years to serve. On appeal,
Lepard argues that reversal is required because (1) the circuit court failed to instruct the jury
on an essential element of the offense, and (2) the indictment failed to allege an essential
element of the offense. After review, we affirm the conviction and sentence.
PROCEDURAL AND FACTUAL HISTORY ¶2. On October 25, 2021, Marcus Lepard was indicted by a Leake County grand jury for
touching a child for a lustful purpose pursuant to Mississippi Code Annotated section 97-5-
23 (Supp. 2015). On October 28, 2021, Lepard pled not guilty to the charge set out in the
indictment. The matter was then tried in the Leake County Circuit Court on September 15-16,
2022.
¶3. The State first called minor victim C.W.,1 who was about thirteen years old when the
fondling occurred, to testify. In his testimony, C.W. explained that Lepard was his Sunday
school teacher at Wake Forest Pentecostal Church in Thomastown, Mississippi.
Occasionally, Lepard split the Sunday school class into two separate classrooms based on
gender (i.e., boys and girls). C.W. said the boys’ class was “more like a sex educational class
than it was a Sunday school class.” In the split classes, Lepard told the boys “how [their]
bod[ies] work” and “how to have sex.” C.W. stated that Lepard told the class “not to talk
about [the class discussions] around other people . . . period.” C.W. knew the classes were
“inappropriate” but did not tell his parents about the discussions because he was
“embarrassed.”
¶4. C.W. testified that Lepard asked C.W. if they could hang out outside of church. C.W.
responded, “I don’t know. I’ll have to talk to my mom.” C.W. then testified that “[Lepard]
asked [C.W.’s] parents before [C.W.] asked them, and [C.W.’s parents] said it was okay.”
¶5. The first time C.W. felt “really uncomfortable” was after a men’s church conference
1 Initials have been used for the minor victim C.W. and minor witness A.T. to protect their identities.
2 in Ridgeland, Mississippi. C.W. and Lepard were driving back in Lepard’s car alone when
“[Lepard] asked if [Lepard] could go through [C.W.’s] phone and look through [C.W.’s]
search history” to see if C.W. has been looking at “porn.” C.W. responded, “[A]bsolutely
not.” After C.W. and Lepard returned from the men’s conference, they continued to “hang
out” outside of church. They “went to put up corn feeders, and [Lepard] asked [C.W.] one
more time if he could go through [C.W.’s] phone. [C.W.] said no.”
¶6. The next time C.W. was at Lepard’s house was with his adoptive father. They went
to Lepard’s house for dinner, and “[Lepard] asked [C.W.’s] dad if [C.W.] could spend the
night” “to check feeders the next morning.” C.W. testified that his father “said it was fine”
to stay the night at Lepard’s house. C.W. did not know that Lepard was going to ask his
father this in advance.
¶7. While staying at the house, Lepard wanted C.W. to play “truth or dare.” During the
course of the game, Lepard dared C.W. to “put ice in [his] underwear,” “go outside and pull
[his] pants and underwear down,” “hump piano chairs,” and dared C.W. to hit Lepard “in the
nuts.” The next morning, “[Lepard] showed [C.W.] a picture of where [C.W.] had [C.W.’s]
hand on [C.W.’s] private parts sleeping.” While at Lepard’s house, Lepard would also “talk
about masturbation” and told C.W. “that it was okay as long as [C.W.] wasn’t thinking of
women or watching porn.”
¶8. Another time at Lepard’s house, C.W. testified that Lepard “had a condom, and
[Lepard] demonstrated how to put it onto a flashlight.” C.W. also testified that Lepard
3 showed him “a ring that goes around your private parts while you’re having sex.” While
C.W. was at Lepard’s house Lepard showed C.W. a video of a male’s genitals to “teach”
C.W. “how to check if your” testicles “have cancer.” Lepard also showed C.W. videos “[o]f
animals having sex.”
¶9. C.W. testified that the first time he remembered Lepard making him “show [Lepard]
[C.W.’s] private parts was in a deer stand” on Lepard’s hunting property. While in the deer
stand, C.W. had to urinate. Lepard told C.W. “to pee up in the stand,” but because of the size
of the deer stand, they were only “four inches” apart. C.W. reluctantly decided to relieve
himself, and Lepard “starting peeing beside [C.W.].” While urinating, C.W. caught Lepard
looking at his genitals. This made C.W. “very uncomfortable.”
¶10. The last time Lepard saw C.W.’s genitals was when Lepard was “teaching” C.W
about “when [C.W.’s penis] gets hard and when it gets soft.” During this “teaching” Lepard
“made [C.W.] pull his pants down . . . and then [Lepard] touched the top of [C.W.’s] private
parts” with “two fingers.” Lepard touched “[C.W.’s] penis,” and C.W. “pulled [Lepard’s]
hand off.” The touching was “skin on skin” and “not over the clothes.” C.W. testified that
he “didn’t want to[,]” but [Lepard] made [him.]” Shortly after this incident, C.W.’s mother
called Lepard because she was ready for him to come home. “[C.W.] said he was ready, but
[Lepard] told [C.W.’s mother] that [C.W.] wasn’t ready” to come home.
¶11. C.W. testified that after Lepard “touch[ed] [C.W.’s] penis,” he told friends of family
about the incident. The family friends “gave [C.W.] three weeks to tell [C.W.’s] parents.”
4 C.W. was “super nervous.” C.W. “wanted to tell [his] parents. [He] just couldn’t go to [his]
parents and tell them that.” During the three weeks, C.W. also told A.T., a boy in his Sunday
school class, but A.T. did not believe him. Once the three weeks were over, the family
friends “came, and they made [C.W.] tell” his parents.
¶12. The State then called C.W.’s mother to testify. C.W.’s mother testified that when she
learned that “the Sunday school was being used as a sexual education class,” she called
Lepard to confront him. Lepard “then cried [a]nd said that that was not his intention and that
[C.W.] was told plainly that he was not to come home and tell anything that he learned in
those Sunday school classes.” After the conversation between C.W.’s mother and Lepard,
C.W. did not attend Lepard’s Sunday school class again.
¶13. C.W.’s mother also testified that Lepard “would call and ask if [C.W.] could . . . help
him work on deer plots or put up deer stands or work at his house.” C.W.’s mother thought
this was a “good thing” since “C.W. lives in the house with three other girls” because his
father works offshore. She thought Lepard would be a “mentor,” a “good leader,” and “a
good example to [C.W.].” The last time C.W.’s mother allowed C.W. “to go with [Lepard]”
was when Lepard “touch[ed] [C.W.’s] penis.” C.W.’s mother testified that she was not aware
of the incident at the time. However, she did testify that when she picked up C.W., she could
“feel an extreme uneasiness with him.”
¶14. After C.W.’s mother became aware of the incidents between Lepard and C.W., Lepard
approached C.W.’s mother at church, and Lepard was “crying and said that the Lord had told
5 [Lepard] if he has done anything to [C.W.’s mother] or [her] family to apologize for that.”
C.W.’s mother asked “[i]f he knew of anything that he had done,” but he failed to answer the
question. C.W.’s mother then told the Wake Forest Pentecostal Church’s pastor about the
incident. The pastor told her he would “conduct an internal investigation.” C.W.’s mother
did not inform law enforcement immediately because she was “scared of not being believed”
and “nothing being pursued.” After the pastor gave C.W.’s mother “his blessing,” she
informed law enforcement.
¶15. The State also called A.T., another one of Lepard’s Sunday school students to testify.
In his testimony, he explained that he encountered a progression of several inappropriate
instances with Lepard that made A.T. feel “uncomfortable.” While at Lepard’s hunting
property, Lepard asked A.T. to play “truth or dare.” During the game, Lepard dared A.T. “to
take off [his] pants.” On a separate occasion at the hunting property, Lepard “asked [A.T.]
to show [his] privates in front of the deer camera,” which “should snap a picture.” Lepard
also testified that Lepard taught him about condoms and “cock rings.” A.T. then explained
how the touchings escalated. Lepard “asked [A.T.] to” masturbate while Lepard stood beside
and watched until A.T. “finished.” Other incidents occurred where Lepard would
“[masturbate] as well, and he asked [A.T.] to hold his private area.” Lastly, while A.T. was
at Lepard’s house, A.T. was taking a shower, and Lepard “joined [A.T.] in the shower” and
“shaved [A.T.’s] private area.”
¶16. The State also called Mississippi Bureau of Investigation Investigator Ricky Dean to
6 testify. Dean testified that on May 13, 2021, he interviewed Lepard. The interview was
recorded and, after objections and redactions, shown to the jury. During the recorded
interview, Lepard never admitted to intentionally touching C.W.’s genitalia. However, Dean
explained that during the interview, Lepard remembered grabbing C.W. near the groin area
when they would wrestle. When asked whether Lepard used thoughts of the wresting
interaction with C.W. to facilitate an orgasm, he responded, “It’s very possible.” Lepard also
stated that he “may have thought about” sexual conduct with C.W. Lastly, when Dean asked
whether Lepard’s “actions were gratifying the lust of the flesh,” Lepard responded by saying,
“In all honesty yes, sir.”
¶17. Lastly, the State called Deputy Warden Steven Bell of the Walnut Grove Correctional
Facility. At the time of the relevant events, Bell was an investigator for the Leake County
Sheriff’s Office and interviewed Lepard. In the interview, Lepard stated that he had shown
C.W. “how to put a condom on a flashlight,” “a cock ring,” and “pornographic images,” and
Lepard said he “exposed himself to C.W. several times while urinating.” Bell also testified
that in the interview, Lepard admitted to “masturbat[ing] to the image of himself touching
C.W.’s penis.”
¶18. At the end of trial, the State proposed the following jury instruction:
The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that on or between February 2019 and February 2021, in Leake County, Mississippi, the Defendant, Marcus Dean Lepard, willfully, unlawfully and feloniously did touch the person of C.W., a child under the age of sixteen (16) years, for the purpose of gratifying his lust and indulging in his depraved licentious sexual desires, at a time when he, the said
7 Marcus Dean Lepard, was a person above the age of eighteen (18) years, then it is your duty to find the Defendant guilty as charged.
(Emphasis added).
¶19. Lepard’s counsel objected that the instruction was missing the essential element that
describes “what part of Marcus Lepard’s the State alleges he touched the body of C.W.
with.” The judge overruled this objection and asked defense counsel, “What authority do you
have that we have to get so specific as to talk about what part of the body was touched[?]”
The defense attorney responded that pursuant to Mississippi Code Annotated section 97-5-
23(1) the touching must be done “with hands or any part of his or her body or any member
thereof.” The judge again overruled the objection because he disagreed “with [the defense
attorney’s] objection based on the wording of the statute.”
¶20. The jury found Lepard guilty as charged. On September 19, 2022, the judge sentenced
Lepard to fifteen years in the custody of the Mississippi Department of Corrections, with
three years suspended and twelve years to serve, and three years of post-release supervision.
Lepard was also ordered to register as a sex offender upon release. On October 7, 2022,
Lepard appealed.
ANALYSIS
I. The jury was adequately instructed on the essential elements of fondling.
¶21. Lepard argues the jury instructions were missing an essential element of the applicable
statute by not stating the touching had to be done “with hands or any part of his or her body
8 or any member thereof, or with any object” Lepard argues that this element is essential to the
crime and must be included in the jury instructions because it is the only element that ensures
the touching is physical.
¶22. “It is well settled that jury instructions generally are within the discretion of the trial
court, so the standard of review for the denial of jury instructions is abuse of discretion.”
Newell v. State, 49 So. 3d 66, 73 (¶20) (Miss. 2010). When reviewing challenge to a jury
instruction on appeal, we do “not review jury instructions in isolation; rather, they are read
as a whole to determine if the jury was properly instructed.” Burton ex rel. Bradford v.
Barnett, 615 So. 2d 580, 583 (Miss. 1993). “When read together, if the jury instructions fairly
state the law of the case and create no injustice, then no reversible error will be found.”
Bailey v. State, 78 So. 3d 308, 315 (¶20) (Miss. 2012).
¶23. The Mississippi Supreme Court has clearly held that the State has the responsibility
“for making sure the jury is instructed on the essential elements of the crime.” Harrell v.
State, 134 So. 3d 266, 270 (¶14) (Miss. 2014) (citing Hunter v. State, 684 So. 2d 625, 635
(Miss.1996)). Furthermore, “[i]t is always and in every case reversible error for the courts
of Mississippi to deny an accused the right to have a jury decide guilt as to each and every
element.” Id.
¶24. Caselaw states that pursuant to Mississippi Code Annotated section 97-5-23(1) the
“elements of child fondling includ[e] (1) a handling or touching or rubbing; (2) of a child
9 under the age of [16] years;[2] (3) by a person above the age of 18; and (4) for purposes of
gratifying lust or indulging licentious sexual desires.” Hailey v. State, 537 So. 2d 411, 414
(Miss. 1988); see also State v. Shaw, 880 So. 2d 296, 300 (¶13) (Miss. 2004); Nix v. State,
8 So. 3d 141, 144 (¶15) (Miss. 2009).
¶25. The issue in this case is whether the exact location of the touching and the exact part
of Lepard’s body that performed the touching are essential elements of the offense. There is
no case directly aligned with this question, but this Court has addressed a similar issue
relating to the sexual battery statute. In Chandler v. State, 789 So. 2d 109 (Miss. Ct. App.
2001), Chandler was charged with sexual battery of a five-year-old girl by digital penetration.
Id. at 110 (¶1). At trial, the State amended the indictment by eliminating the “digital
penetration” language because the evidence “pointed to acts of fellatio rather than digital
penetration.” Id. at 111 (¶3). The relevant portion of the indictment, with the eliminated
portions stricken, stated that Chandler
did wilfully, unlawfully and feloniously engage in sexual penetration of [the victim], a female child under the age of fourteen years, contrary to and in violation of § 97-3-95 [(1)](d) of the Mississippi Code . . . .
Id. at 110 (¶3). Chandler appealed and argued that the eliminated portion of the indictment
was substantive, and he was required to “defend a broader charge of sexual penetration rather
than the specific charge of digital penetration.” Id. at 111 (¶5). This Court held that the
State’s amendment to eliminate the reference of “digital penetration” in the indictment was
2 The statute was amended in 1998 to raise the age from fourteen to sixteen. 1998 Miss. Laws ch. 549, § 5 (H.B. 834).
10 proper because “[p]enetration is the essence of the crime of sexual battery,” and “[t]he
method of achieving sexual penetration is not an element of the offense.” Id. at 112 (¶7)
¶26. This Court cited Chandler in another case where a defendant was charged and found
guilty of five counts of sexual battery and four counts of child fondling. Mendez v. State, 309
So. 3d 1109, 1111 (¶1) (Miss. Ct. App. 2020). He appealed and raised the issue of whether
his indictment was defective because the State “did not charge an essential element of the
crime of sexual battery.” Id. The indictment stated he sexually penetrated the victim “by
placing his anus to [the child’s] finger” and “his mouth to [the child’s] penis.” Id. at 1116
(¶29). Mendez argued that the indictment was insufficient because of the use of the word
“to” instead of “into.” Id. This Court found that “it does not matter whether the indictment
should have stated that Mendez achieved sexual penetration by forcing the child’s penis into
his mouth or by forcing the child’s finger into his anus/rectum because that is not an element
of the offense charged.” Id. at 1115-16 (¶29). We held that the indictment was sufficient. Id.
¶27. The Mississippi Supreme Court has reached similar conclusions relating to the sexual
battery statute. In Hennington v. State, 702 So. 2d 403 (Miss. 1997), Hennington was
convicted of sexual battery of a ten-year-old male. The indictment charged Hennington with
“sexual penetration of [the victim] a male person under the age of fourteen years, by then and
there wilfully, unlawfully and feloniously putting his mouth and hands on the penis.” Id. at
407 (emphasis added). On appeal, he argued that the State failed to prove that the victim was
11 penetrated by the act of fellatio. Id. He claimed “that the indictment charged him with
penetration ‘of’ a child, instead of penetration ‘with’ a child.” Id. The Mississippi Supreme
Court held that “[w]hether there was penetration ‘of’ or penetration ‘with’ [the victim] is not
an essential element of the crime and is not relevant.” Id. at 408. Therefore, the State proved
beyond a reasonable doubt that Hennington penetrated the victim and was guilty of sexual
battery. Id.
¶28. In another case this year, a defendant was found guilty of sexual battery of his two
nieces. Stewart v. State, 378 So. 3d 379, 381 (¶1) (Miss. 2024). The defendant, Stewart, was
indicted on two counts of sexual battery, one for each niece. Id. at 383 (¶12). The indictment
alleged that Stewart penetrated each niece “by three different means—by vaginal, anal, and
oral penetration.” Id. at 382 (¶3). At trial, one niece testified that “Stewart put his penis in
her vagina, her butt, and her mouth.” Id. at 383 (¶14). However, the other niece testified that
“Stewart put his penis into her vagina and her butt,” but did not testify as to any oral
penetration. Id. On appeal, Stewart claimed that the jury instructions insufficiently described
sexual penetration as “inserting his penis into her vaginal, anal and oral areas” rather than
“genital or anal openings” pursuant to Mississippi Code Annotated section 97-3-97(a). Id.
at 387 (¶32). He argued that a mere touching is not enough for sexual penetration to occur.
Id. Stewart also argued that the proof was insufficient since there was no evidence presented
at trial that “he engaged in oral penetration of [one niece] or that he penetrated either
[niece’s] anus.” Id. at 386 (¶26). The Mississippi Supreme Court stated that the sexual battery
12 statute lists a number of ways in which penetration can occur, including “cunnilingus,
fellatio, buggery or pederasty, any penetration of the genital or anal openings of another
person’s body by any part of a person’s body, and insertion of any object into the genital or
anal openings of another person's body.” Id. at 387. The Supreme Court held that in order “to
commit sexual penetration, one does not have to engage in all the activities listed in section
97-3-97(a). Id. Just one of those activities will suffice.” Id. Thus, the Court found that there
was no reversible error because “the jury instructions, read as a whole, fairly announce the
law of the case and create no injustice.” Id. at 388 (¶32).
¶29. Here, the elements of fondling, among others, are a handling, touching, or rubbing of
a child with a lustful purpose. See Miss. Code Ann. § 97-5-23(1). The statute states the
handling, touching, or rubbing must be done “with hands or any part of his or her body or
any member thereof, or with any object[.]” Id. (emphasis added). The phrase “with hands
or any part of his or her body or any member thereof, or with any object” makes the statute
clear that any lustful touching is illegal. In sexual battery, any penetration of a child is
prohibited, and the “method of achieving” the penetration, while required to be proved by
a reasonable doubt, is not an essential element for purposes of the jury instructions. See
Chandler, 789 So. 2d at 113 (¶7). The same logic applies here; the fondling statute prohibits
any touching of a child for a lustful purpose, and the “method of achieving” that touching,
while required to be proved beyond by a reasonable doubt, is not an essential element for
purposes of the jury instructions. Again, the phrase “with hands or any part of his or her body
13 or any member thereof, or with any object” makes the statute clear that all lustful touchings
are illegal. It matters not whether it is done with the hand, body, or any object because any
touching with any member of the body is prohibited. Thus, that phrase is not an essential
element. That phrase defines the method of achievement of the illegal handling, touching,
or rubbing. As such, just like previous interpretations of the sexual battery statute, that
phrase is not the essential element. The essential element is the “handling, touching, or
rubbing.”3
¶30. We find that the jury instructions were sufficient, and there was no abuse of
discretion. When read as a whole, the instructions fairly state the essential elements of
fondling and create no injustice for Lepard. See Burton, 615 So. 2d at 583. Even though the
instructions did not include the method of achieving the illegal touch, the fact C.W. testified
that Lepard “made [C.W.] pull his pants down” and “touched the top of [C.W.’s] private
parts” with his “two fingers” proves that the touching was physical. There was no other
alleged illegal touching. The jury obviously found that Lepard (1) touched (2) C.W., a child
under the age of 16 years, (3) was above the age of 18, and did so (4) for purposes of
gratifying his lust or indulging licentious sexual desires, which are the essential elements the
supreme court set out in Hailey, 537 So. 2d 414, Shaw, 880 So. 2d at 300 (¶13), and Nix, 8
So. 3d at 144 (¶15). This argument is without merit.
II. The indictment was legally sufficient.
3 It certainly would be good practice to set out the manner in which the “handling, touching, or rubbing” occurred in the indictment and jury instructions, but it is not essential.
14 ¶31. Lepard also argues that his indictment was insufficient for failing to include the same
alleged “essential element” addressed in the first issue. “The question of whether an
indictment is defective is an issue of law and therefore deserves a relatively broad standard
of review, or de novo review, by the [appellate] court.” Tapper v. State, 47 So. 3d 95, 100
(¶17) (Miss. 2010).
¶32. Mississippi Rule of Criminal Procedure 14.1(a)(1) states:
[t]he indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts and elements constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them.
The rule mandates that the indictment also include:
(A) the name of the accused; (B) the date on which the indictment was filed in court; (C) a statement that the prosecution is brought in the name and by the authority of the State of Mississippi; (D) the county and, in two-district counties, the judicial district in which the indictment is brought; (E) the date and, if applicable, the time at which the offense was alleged to have been committed; (F) the signature of the foreperson of the grand jury issuing it; and (G) the words “against the peace and dignity of the state.”
MRCrP 14.1(a)(1). “The primary purpose of an indictment is to give the defendant fair
notice of the crime charged. It must contain the essential facts constituting the offense
charged and shall fully notify the defendant of the nature and cause of the accusation.”
Faulkner v. State, 109 So. 3d 142, 146 (¶13) (Miss. Ct. App. 2013) (emphasis added)
15 (internal quotation marks omitted). “An indictment must contain (1) the essential elements
of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against
which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the
event of a future prosecution for the same offense.” Gilmer v. State, 955 So. 2d 829, 836-37
(¶24) (Miss. 2007) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)).
¶33. In the case at hand, the indictment stated:
Marcus Dean Lepard in Leake County, Mississippi, on or between February, 2019 and February, 2021 did willfully, unlawfully, and feloniously touch the person of C.[]W., a child under the age of sixteen (16) years of age, for the purpose of gratifying his lust and indulging in his depraved licentious sexual desires, at a time when he, the said Marcus Dean Lepard, was a person above the age of eighteen (18) years of age, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.
¶34. The indictment is legally sufficient because it has all of the essential elements of
fondling. See Hailey, 537 So. 2d at 414; Shaw, 880 So. 2d at 300 (¶13); Nix, 8 So. 3d at 144
(¶¶14-15). Lepard was above the age of eighteen years, and C.W. was a child under the age
of sixteen. Lepard was charged with willfully, unlawfully, and feloniously touching C.W.
The touching was allegedly for the purpose of “gratifying [Lepard’s] lust and indulging his
depraved licentious sexual desires.” The only part of section 97-5-23 not specifically
included in the indictment was “with hands or any part of his or her body or any member
thereof, or with any object.” As stated previously in the cases of Steward, Chandler, and
Hennington, concerning the essential elements of sexual battery, pursuant to section 97-3-95,
16 the essential element of the crime is the penetration not the “method of achieving” that
penetration. Stewart, 378 So. 3d at 380 (¶30); Chandler, 789 So. 2d at 110 (¶7); Hennington
702 So. 2d at 406. In sexual battery cases, it has been held in those cases that the indictment
and jury instructions do not require the “method of achieving” the penetration. Likewise, the
fondling statute does not require the method of achieving the touching because the touching
is the essential element of the crime. The fondling statute clearly prohibited all lustful
touching, and that is the essential element of the crime, not the method of achieving the
touching. The indictment fairly informed Lepard of the fondling charge against him. Thus,
Lepard had fair notice of the crime charged. This issue is without merit.
CONCLUSION
¶35. Following a thorough review, we find that the jury instruction and indictment were
sufficient. The fact that the instruction did not include the method of achieving the lustful
touch did not make the instructions insufficient because it is not an essential element. The
essence of fondling is the illegal touching, not the method of achievement. We find no abuse
of discretion. Furthermore, we find the indictment was not fatally defective because it
included all the essential elements and provided Lepard with sufficient notice of the fondling
charge.
¶36. Finding no reversible error, we affirm Lepard’s conviction and sentence.
¶37. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.