¶1Appellant, Ralph Lewis Kramer, was tried and convicted by the court of sexual abuse, 1st degree, in violation of the Ark. Stat. Ann. § 41-1808 (Repl. 1977) and sentenced to four years imprisonment. On appeal appellant argues the evidence is insufficient to support the conviction. We agree.
¶2The victim, a twelve-year-old girl, testified that on June 19,1983, while she was standing in line to get a soft drink in a store, appellant touched her on her buttocks. Appellant argues that the sexual abuse statute does not prohibit touching of the buttocks and that therefore the evidence is insufficient to support the conviction.
¶3Ark. Stat. Ann. § 41-1808 (Repl. 1977) provides:
(1) A person commits sexual abuse in the first degree if:
(c) being eighteen (18) years or older he engaged in sexual conduct with a person not his spouse who is less than fourteen (14) years old.
¶4Sexual contact is defined in Ark. Stat. Ann. § 41-1801(8) (Repl. 1977) as follows:
(8) “Sexual conduct” means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female.
¶5It has long been held that penal statutes are to be strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed. Austin v. State, 259 Ark. 802, 536 S.W.2d 699 (1976); Scarmardo v. State, 263 Ark. 396, 565 S.W.2d 414 (1978). Touching of the buttocks is not prohibited sexual conduct as defined in Ark. Stat. Ann. § 41-1801(8); therefore appellant’s conviction cannot stand under this statute.
¶6Reversed and dismissed.
¶7concurring. I take strong exception to the dissenting opinion. It is manifestly unfair to state that the majority legalizes the fondling of twelve year old girls by adult males. Such language is unjustified and unfounded. Sexual contact is defined in Ark. Stat. Ann. § 41-1801(8) (Repl. 1977) as follows: “Any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female.” I do not understand how any sound thinking person could say the touching of the buttock by a hand through the clothing is expressly included in the foregoing statute. Since it is admitted by the dissent that we strictly construe criminal statutes, I cannot understand the position of the dissent. Perhaps it is a matter which should be taken up with the legislature. It is not our duty or prerogative to construe laws in the manner in which we think they ought to be written. It is the function of the legislative branch of the government to enact laws in the manner in which they deem proper. It is the responsibility of the people to keep the legislative branch informed on such matters. The judicial branch is not given the authority to re-write the laws to its own liking. Perhaps appellant violated some other statute but he clearly did not conduct himself in a manner which is prohibited by Ark. Stat. Ann. § 41-1808( 1 )(c) (Repl. 1977).