Ortega

Defendant Andrew Ortega was charged with sexual penetration by force. A jury found defendant not guilty of the charged offense but guilty of the lesser included offense of assault with intent to commit sexual penetration by force. Defendant argues that sexual battery is also a lesser included offense of forcible sexual penetration and that the trial court erred by failing to instruct sua sponte on sexual battery. We will conclude that evidence received at the preliminary hearing to support the information should have been considered in determining whether forcible sexual penetration necessarily encompasses sexual battery, because the two offenses have the same mens rea and the particular conduct supporting a holding order for the charged offense established the lesser offense. Our conclusion takes into account due process principles of notice and fairness, as well as a defendant’s right to have the jury determine every material issue presented by the evidence. We will reverse the judgment because we find that defendant was prejudiced by the failure to instruct the jury on sexual battery as a lesser included offense.

L TRIAL COURT PROCEEDINGS

Defendant was charged by…