dissenting.
I respectfully dissent because I believe there was enough evidence to go to the jury on the question of whether the defendant is guilty of the offense of attempted sexual battery, not merely a lewd assault. The investigating officer testified that during his interview with the defendant he drew an outline of a hand and asked Ellis to draw a line showing: “the very furthest your finger might have gone inside her”. Rather than object that he did no such thing, the defendant drew a series of lines on the fingertips of the sketch. The officer testified that the appellant was showing him “how far he penetrated her vagina with his fingertips”. The defendant told the officer that what he did “played on his mind” and made him feel remorseful. Because the victim only testified about touching, the evidence in this case is admittedly close; however, the only issue is whether the defendant intended to penetrate and did an overt act toward the offense. There is evidence that he did.