for the Court:
¶ 1. Malcolm Weeks Sr. was indicted and tried for sexually abusing his fourteen-year-old daughter. He was convicted of one count of child fondling and two counts of sexual battery.
FACTS AND PROCEDURAL HISTORY
¶ 2. Malcolm Weeks Sr. and his wife “Sarah” have two children, “Wesley” and “Mary.”
Malcolm Clifton Weeks ... a male human being above the age of eighteen (18) years, whose date of birth is October 18, 1970, did willfully, unlawfully, and intentionally engage in sexual penetration ... with [Mary], a female child (14) years of aye, whose date of birth is March 25, 1996, by performing cunnilingus on [Mary], at a time when Malcolm Clifton Weeks was more than twenty-four (24) months older than [Mary] ... in violation of Section 97-3-95(1) (d), Mississippi Code Annotated (1972, as amended)....
(Emphasis added.)
The State moved to amend the indictment to track subsection (c). Malcolm objected to the motion, but the trial court allowed the amendment. The sexual-battery counts, as amended, read:
Malcolm Clifton Weeks ... a male human being above the age of eighteen (18) years, whose date of birth is October 18, 1970, did willfully, unlawfully, and intentionally engage in sexual penetration ... with [Mary], a female child (14) years of age, whose date of birth is March 25, 1996, by performing cunnilingus on [Mary], at a time when Malcolm Clifton Weeks was more than thirty-six (36) months older than [Mary] ... in violation of Section 97-3-95(1) (c), Mississippi Code Annotated (1972, as amended)....
(Emphasis added.)
¶ 3. The only witness for the defense was Malcolm himself. Malcolm emphasized that he consistently had denied ever touching Mary inappropriately, that he had volunteered to assist the police in their investigation, and that he had refused to plead guilty in exchange for a lesser sentence. This testimony was consistent with that of Tucker, who had acknowledged on cross-examination that Malcolm had called her, that he had volunteered to come to the police department, and that he repeatedly had denied the allegations.
¶4. The jury found Malcolm guilty of two counts of sexual battery and one count of child fondling. Weeks received a thirty-year sentence for each of the sexual-battery convictions and a fifteen-year sentence for the child-fondling conviction. The second thirty-year sentence and the fifteen-year sentence run concurrently with each other but consecutively to the first thirty-year sentence. Following the trial court’s denial of his motion for judgment notwithstanding the verdict or, in the alternative, a new trial, Malcolm timely filed this appeal.
¶ 5. Three issues are presented on appeal: 1) whether the trial court allowed the State to substantively amend Malcolm’s indictment; 2) whether there was sufficient evidence to support the jury’s verdicts;
A. Amendment of Indictment
¶ 6. Malcolm was indicted for two counts of sexual battery under Mississippi Code Section 97-3-95(1) which reads:
A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.10
The counts initially tracked subsection (d), despite the fact that the indictment explicitly stated Mary was fourteen years old at the time of the alleged criminal behavior. At trial, the State was permitted to amend the indictment to change subsection (d) to subsection (c) and twenty-four (24) months to thirty-six (36) months. Malcolm contends that the amendments were improper because they were of substance, as opposed to form.
¶ 7. The question of whether an indictment is legally sufficient is a question of law and must be reviewed de novo.
[A] change in the indictment is permissible if it does not alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.13
“The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood will be equally available after the amendment is made.”
¶ 9. As in Smith, Malcolm’s indictment included the birth dates of Mary and Malcolm and the dates of the alleged criminal behavior. It also specifically stated that Mary was fourteen at the time of the alleged crimes. Malcolm argues his case is distinguishable from Smith because Smith’s indictment did not name a specific subsection of Mississippi Code Section 97-3-95(1), whereas his indictment named the wrong subsection. While this factual distinction is correct, it does not necessitate a different result. An indictment is sufficient despite citing the wrong statutory subsection so long as it contains a “clear and concise statement of the elements of the crime charged.”
¶ 10. The amendments also did not alter Malcolm’s defense.
B. Sufficiency of the Evidence
¶ 11. Malcolm claims that the State failed to present sufficient evidence to support any of his three convictions, and that the trial court erred in denying his motion for judgment notwithstanding the verdict (JNOV). When reviewing the denial of a motion for JNOV, the evidence is viewed in the light most favorable to the verdict.
¶ 12. To convict Malcolm of child — fondling, the State had to prove that Malcolm, “for the purpose of gratifying his ... lust, or indulging his ... depraved licentious sexual desires, ... handle[d], touch[ed] or rub[bed] [Mary] with hands or any part of his ... body or any member thereof’ when he was more than eighteen years old and Mary was less than sixteen years old.
Sexual penetration includes 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.29
¶ 13. Mary testified that Malcolm had touched her vagina and had performed oral sex on her the morning of September 19, 2010. She also testified that Malcolm had touched her vagina several times between the end of June 2010 and September 18, 2010, with his hands, mouth, penis, and a vibrator. Such behavior constitutes sexual penetration under Section 97-3-97(a) and fondling under Section 97-5-23.
C. The Weight of the Evidence
¶ 14. Finally, Malcolm argues that the jury’s verdict is against the overwhelming weight of the evidence and faults the trial court for denying his motion for a new trial. A “motion for a new trial is addressed to the discretion of the trial court, and such motion should be considered with caution. ‘[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.’ ”
CONCLUSION
¶ 15. Malcolm Weeks Sr. was indicted and tried for sexually abusing his fourteen-year-old daughter. Malcolm was convicted of one count of child — fondling and two counts of sexual battery. Malcolm’s indictment was sufficient, even though the sexual-battery counts initially tracked the wrong subsection of the sexual-battery statute. The indictment provided Malcolm with notice of the charges against him, because it specifically alleged that he abused his fourteen-year-old daughter and included his birthday, his daughter’s birthday, and the dates of the alleged crimes. The trial court appropriately granted the State’s motion to amend the indictment to reflect the appropriate subsection of the sexual-battery statute, as the amendment was one of form. The trial court also appropriately denied Malcolm’s motion for judgment notwithstanding the verdict, or in the alternative a new trial, because the jury’s verdicts were sufficiently supported by the evidence and were not against the overwhelming weight of the evidence. The judgment of the Rankin County Circuit Court is affirmed.
¶ 16. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE
. Weeks was indicted for two counts of child fondling and two counts of sexual battery.
. Fictitious names have been used for the minor victim and her family members to protect the identity of the victim. Members of the Weeks family will be referred to by first names to avoid confusion.
.The parties dispute how Malcolm responded. Malcolm claims he told Sarah that "he was waking [Mary] up for church,” while Sarah claims he said "nothing.”
. A Y-chromosome test is often used when a sample is likely to have a large amount of female DNA and only a minimal amount of male DNA. This test cannot pinpoint an individual but it can pinpoint a paternal line.
. Miss.Code Ann. § 97-3-95(1) (Rev.2006).
. Miss.Code Ann. § 97-3-95(l)(c) (Rev.2006).
.Miss.Code Ann. § 97-3-95(l)(d) (Rev.2006).
. Malcolm does not specifically attack the legal sufficiency of the State’s evidence. Instead, he makes arguments against both the sufficiency and the weight of the evidence under one heading reading "The lower court erred in denying the Defendant's Motion for JNOV, and in failing to grant a new trial where the jury returned a verdict against the overwhelming weight of the evidence.” To avoid confusion, these issues are addressed separately.
. Malcolm also was indicted for two counts of child fondling under Mississippi Code Section 97-5-23, Count I and Count III in the indictment. These counts were not amended. Malcolm challenges the validity of his Count III conviction based on the sufficiency and the weight of the evidence. Those arguments are addressed infra. Malcolm was not convicted of Count I; therefore it is not at issue in this appeal.
. Miss.Code Ann. § 97-3-95(1) (Rev.2006).
. Patton v. State, 109 So.3d 66, 80 (Miss.2012).
. Id. (internal quotations omitted).
. Id. (quoting Montgomery v. State, 891 So.2d 179, 186 (Miss.2004)).
. Patton, 109 So.3d at 81 (internal quotations omitted).
. Smith v. State, 989 So.2d 973 (Miss.Ct.App.2008).
. Id. at 975.
. Id. at 976.
. Id. at 977.
. Id. at 977. Notably, the same prejudice does not accompany the amendment at issue here. By changing Weeks’s indictment to charge him under subsection (c) as opposed to subsection (d), the State reduced his potential maximum sentence.
. Id. at 978.
. Id. at 979.
. Id.
. See Evans v. State, 916 So.2d 550, 552 (Miss.Ct.App.2005) (citing White v. State, 169 Miss. 332, 153 So. 387, 388 (1934)).
. See Givens v. State, 730 So.2d 81 (Miss.Ct.App.1998) (amendment changing the date of the alleged crime held to be one of form because the date change did not change the
. Patton, 109 So.3d at 82.
. Id. (quoting McClain v. State, 625 So.2d 774, 778 (Miss.1993) (internal quotations omitted)).
. Miss.Code Ann. § 97-5-23(1) (Rev.2006).
. Miss.Code Ann. § 97-3-95(c) (Rev.2006).
. Miss.Code Ann. § 97-3-97(a) (Rev.2006) (internal quotations omitted).
.See Brady v. State, 722 So.2d 151 (Miss.Ct.App.1998) (evidence that defendant kissed nine-year-old victim’s vagina was sufficient to establish that defendant had performed cunnilingus on the victim for the purpose of proving sexual penetration); Golden v. State, 984 So.2d 1026 (Miss.Ct.App.2008) (seven-year-old victim’s testimony that defendant licked her vagina three or four times was sufficient to support fondling conviction under Mississippi Code Section 97-5-23).
. Weatherspoon v. State, 56 So.3d 559, 564 (Miss.2011).
. Id. at 564 (citations omitted).
.Ben v. State, 95 So.3d 1236, 1253 (Miss.2012) (citing Bush v. State, 895 So.2d 836, 844 (Miss.2005)).
