Marcus Dean Lepard a/k/a Marcus Lepard v. State of Mississippi

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

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Initials have been used for the minor victim C.W. and minor witness A.T. to protect
their identities.

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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

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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.”

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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

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[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

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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

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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

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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

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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).

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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)

(emphasis added).

¶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

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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

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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

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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.

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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.

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¶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)

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(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.

(Emphasis added).

¶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,

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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.

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