STATE v. MULENGA (2021)

Writ application denied.

The Criminal Code defines battery as “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La.R.S. 14:33. Misdemeanor sexual battery is “the intentional touching of the breasts or buttocks of the victim ․ directly or through clothing, when the offender acts without the consent of the victim.” La.R.S. 14:43.1.1. Defendant's conduct, at worst, could be deemed a misdemeanor offense of attempted sexual battery, and is certainly not a simple battery.

Additionally, simple battery is not a legislatively responsive verdict to sexual battery. See La.C.Cr.P. art. 814. Furthermore, defendant's conviction could not be deemed a responsive verdict under La.C.Cr.P. art. 815, as his conduct could not be considered a “lesser and included grade of the offense” of simple battery. Because defendant's conduct does not fit the definition of simple battery, as there is no evidence of any use of force or violence in defendant's actions or in the intentional administration of a poison or noxious liquid or substance to another, I would reverse defendant's conviction.

Crichton, J., would grant for the reasons assigned by Justice Genovese. Genovese, J., would grant and assigns reasons. Griffin, J., would grant.