Andy Fortune, who was 25 at the time of the trial, was sentenced to two years in prison in February 2011 after a Lowndes County Circuit Court jury deliberated about three hours before finding him guilty of fondling. The girl was a relative who was 11 at the time of the incident when it occurred in December 2008.
Although he has completed his sentence and is out of prison on five years post-release supervision, Fortune had appealed the conviction, claiming Judge Lee Howard erred in not allowing a jury instruction dealing with the impact medication for his war injuries might have had on his intent to commit the crime.
A Marine, Fortune was deployed to Iraq in 2006 and injured by a roadside bomb.
He said he was taking Ambien to help him sleep and other drugs and that the jury should have been able to consider whether that and other drugs made him unaware of his actions. He says the jury should have been able to consider whether his actions were intentional.
In its ruling today, the state Court of Appeals said Howard did not make an error and the conviction should stand.