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06/18/03 "See News Release 044 for any dissents and/or concurrences

SUPREME COURT OF LOUISIANA No. 02-K-1547 STATE OF LOUISIANA v. JOHN SULLIVAN AMOS, IV On Writ of Certiorari to the First Circuit Court of Appeal

PER CURIAM: Defendant-respondent was charged with two counts of aggravated oral sexual battery, in violation of La. R.S. 14:43.4, and found guilty on each count of oral sexual battery, in violation of La. R.S. 14:43.3, over his objection to the trial court's list of responsive verdicts. The charges stemmed from respondent's sexual misconduct with two 10-year-old boys in the spring and summer of 1998. Respondent was 16 years old at the time but subject to prosecution as an adult under the provisions of La.Ch.C. art. 305(B)(2), which permits the state to file a bill of information in the district court for certain offenses committed by a juvenile over the age of 15 years and which, at the time of the instant offenses, including aggravated oral sexual battery as one of the enumerated crimes. La.Ch.C. art. 305(B)(2)(i)(since repealed by 2001 La. Acts 301). On appeal, the First Circuit reversed respondent's convictions and sentences, finding that oral sexual battery was not a lesser included offense of aggravated oral sexual battery because the former includes the requirement that the victim was not the spouse of the offender while the latter, before its repeal as

a separate offense and assimilation into the crimes of aggravated and forcible rape by the legislature in 2001 La. Acts 301, did not. State v. Amos, 01-2024 (La. App. 1st Cir. 3/28/02), ____ So.2d ____ (unpub'd)(Carter, C.J., dissenting). See La.C.Cr.P. art. 815 ("In all cases not provided for in Article 814, the following verdicts are responsive: (1) Guilty; (2) Guilty of a lesser and included grade of the offense . . . ; (3) Not Guilty."); see also State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La. 1982)("Lesser and included grades of the charged offense are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged . . . . Thus, the evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense.")(citation omitted).1 We granted the state's application to reverse the First Circuit's decision because the trial court's instructions correctly gave the jury the option of returning oral sexual battery as a lesser included offense of aggravated oral sexual battery under the particular circumstances of the case. The legislature added both crimes to the Criminal Code in the same act, 1985 La. Acts 287, as follows:

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