dissenting.
I respectfully dissent. I cannot agree that the defendant's "tapping" with the back of his hand against Dwenger's thigh and genital area constituted a "fondling" within the meaning of Ind.Code 85-45-4-l(a)(4). A penal statute must be strictly construed against the State and must be held to prohibit only that conduct which is clearly within the spirit and letter of the statutory language. Lasko v. State (1980), *151Ind.App., 409 N.E.2d 1124. When construing a statute, "[wjords and phrases shall be taken in their plain, or ordinary and usual, sense." Owens v. State (1981), Ind.App., 424 N.E.2d 169, 172 (quoting 1.C. 1-1-4-1).
As the majority notes, "fondle" is defined as: "to handle tenderly, or lingering ly; treat caressingly: caress." Webster's Ninth - New - International Dictionary (1984). It is also defined as: "to handle or stroke with affection; caress lovingly with the hands." The American Heritage Dictionary of the English Language (1981). "Caress" is defined as: "to touch or stroke in an affectionate or loving manner." Id. In construing the language in 1.C. 85-45-4-2(2) to the effect that "[a] person who knowingly or intentionally fondles, or offers or agrees to fondle, the genitals of another person ... commits prostitution ...," the court in Owens concluded that "fondle" encompassed the act of a woman putting a penis between her breasts until ejaculation. This conclusion was reached by determining that manual manipulation is not an essential element of "fondling," and that "fondle" as used in 1.C. 85-45-4-2 "clearly and unequivocally refers to consensual physical contact between persons which may or may not be manual." Id.
Although not discussed by the majority, I do not believe that the conclusion of the court in Owens that "fondle" means physical contact is controlling here. In Owens more than a mere "touching," with or without the hands, was offered. Thus, the court did not need to hold that mere contact was sufficient to constitute "fondling." Further, examination of the statutes indicates that the legislature contemplates "fondling" to be something more than a mere touch. Clearly the legislature does not equate the terms. For example, battery is defined as "touch/ing] another person in a rude, insolent or angry manner...." 1.0. 835-42-2-1 (emphasis added). Sexual battery is defined as touching with the intent to arouse or satisfy sexual desires when the touching is accomplished by force or threat of force. 1.0. 35-42-4-8 (emphasis added).
On the other hand, prostitution includes "fondl[ ing] ... the genitals of another person," but the statute does not use the word "touch." 1.C. 85-45-4-2(2) (emphasis added). Public indecency is likewise defined as "fondling" and not touching. 1.0. 85-45-4-1(a)(4) (emphasis added). However, child molesting is defined as fondling or touching with intent to arouse or satisfy sexual desires. 1.0. 35-42-4-38 (emphasis added). Vicarious sexual gratification is defined as directing, aiding, inducing, or causing a child to touck or fondle himself or another child with intent to arouse or satisfy sexual desires. I.C. 85-42-4-5 (emphasis added). Likewise, child solicitation includes "any fondling or touching intended to arouse or satisfy ... sexual desires." 1.C. 85-42-4-6 (emphasis added).
The above statutes illustrate that the legislature draws a distinction between "fondle" and "touch." The legislature exhibits a conscious decision to define some offenses as "touchings," some offenses as "fondling" and some offenses as "touching" or "fondling." It is just as important to realize what a statute does not say as to recognize what it does say. City of Muncie v. Campbell (1973), 156 Ind.App. 59, 295 N.E.2d 379. Although the legislature has consciously used both "fondle" and "touch" in other statutes, the public indecency statute under which Marshall was convicted does not say "touching" another person's genitals in a public place constitutes public indecency. Clearly the legislature contemplates something more than a mere "touch" when an offense is defined with the term "fondle." The evidence in this case shows that Marshall merely touched Dwenger by "tapping" Dwenger's genital area with the back of his hand. I cannot agree that this act is encompassed by the common meaning of the word "fondle."
I would reverse the conviction for insufficient evidence.