Atlanta police arrested 65-year-old Danny Benson in February, alleging that Benson asked a 2-year-old girl about her panties at Chastain Park in Northeast Atlanta.

A Fulton County judge dismissed the charge, saying there was not enough evidence.

But Fulton County District Attorney Paul Howard presented the case to a grand jury, and they decided to indict.

"We were horrified," Benson's attorney, Robert Rubin, told Channel 2’s Manuel Bojorquez.

"There's no way this case should have been indicted," he said.

Rubin said Benson was having a conversation with the girl's mother that day and commented on the girl's dress, but that there was no sexual intent.

"[Benson] thought he was moving on and now he's been indicted and has to deal with facing criminal charges in Fulton County and it's devastating," Rubin said.

District Attorney Paul Howard issued a statement regarding the indictment, saying his office thoroughly looked at the case before presenting it to the grand jury.

"The principal reason the Judge found no probable cause, according to our understanding, was based upon the fact that the mother of the victim did not appear before the Judge to present eyewitness testimony of the facts and circumstances related to the incident," the statement said.

"The mother's absence was not a factor when the case was presented to the Grand Jury."

But Rubin said the Fulton County judge who dismissed the case did have the information from the mother's statement.

Either way, the case will move forward.

No trial date has been set.