                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-CT-00669-SCT

CARLOS TAYLOR

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        03/20/2009
TRIAL JUDGE:                             HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:               LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: ERIN ELIZABETH PRIDGEN
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                       WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             THE SENTENCE OF LIFE IN THE CUSTODY
                                         OF THE MISSISSIPPI DEPARTMENT OF
                                         C OR REC TIO N S A S A H A B ITU A L
                                         OFFENDER, WITHOUT ELIGIBILITY FOR
                                         PAROLE OR PROBATION, AFFIRMED -
                                         08/01/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Carlos Taylor appealed his sentence of life without parole, claiming that “the trial

court abused [its] discretion in sentencing Taylor under Miss. Code Ann. Section 99-19-83,

as the prosecution failed to prove all essential elements under the statute.” The Court of

Appeals affirmed. Taylor v. State, __ So. 3d __, 2011 WL 5196781 (Miss. Ct. App. Oct. 11,
2011). We granted Taylor’s petition for writ of certiorari. We hold that the trial court did not

abuse its discretion by sentencing Taylor under Section 99-19-83. Accordingly, we affirm

Taylor’s sentence of life imprisonment without the possibility of parole.

                               PROCEDURAL HISTORY

¶2.    In November 2007, Taylor was indicted for possession of a controlled substance in

a prison facility and as a habitual offender under Mississippi Code Section 99-19-83 in cause

number 2007-0328. Taylor also was charged in separate, consecutively numbered

indictments for possession of a firearm by a felon and assault on a law-enforcement officer

as a habitual offender (cause number 2007-0326) and possession of a firearm by a felon,

felony evasion, and simple assault on a law-enforcement officer as a habitual offender (cause

number 2007-0327). Prior to trial, Taylor filed a motion to dismiss all charges (cause

numbers 2007-0326, 2007-0327, and 2007-0328) for failure to provide a fast and speedy

trial, which the trial judge denied. A jury trial was held in cause number 2007-0328 on the

charge of possession of a controlled substance in a prison facility. Taylor was convicted of

that offense.

¶3.    After the jury’s verdict was returned, the court held a hearing to determine whether

Taylor should be sentenced as a recidivist under Mississippi Code Section 99-19-83. At the

hearing, the State introduced certified copies of two separate, prior felony indictments. The

State also introduced two separate sentencing orders, which revealed that Taylor had pleaded

guilty to separate felonies, the sale of marijuana and sexual intercourse with a child under

age. The sentencing orders revealed that Taylor was sentenced to three years’ imprisonment

                                               2
for the sale conviction and six years for the sex-crime conviction. The pen pack confirmed

that Taylor had served the required terms. Taylor was given a reasonable opportunity to

challenge the prosecution’s proof. Taylor offered no evidence to rebut or contest the State’s

proof. The trial judge adjudicated in the sentencing order that “one (1) of [Taylor’s prior]

felonies [was] a crime of violence.” Taylor was sentenced as a habitual offender to life

imprisonment without parole.

¶4.    Thereafter, Taylor filed in the trial court two post-trial motions: a “Motion for a New

Trial or, in the Alternative, Judgment of Acquittal Notwithstanding the Verdict,” and a

separate “Motion to Reduce Mandated Sentence,” arguing that his sentence “is grossly

disproportionate to the maximum sentence of seven years he would have received had he not

been [charged] as an habitual offender[,]” and that “a sentence of life without parole would

be cruel and unusual punishment under these circumstances.” Both motions were denied.

Taylor appealed, and his case was assigned to the Court of Appeals.

¶5.    In his brief, Taylor asserted that “[t]he trial court erred in sentencing Taylor as a

habitual offender under Miss. Code Ann. § 99-19-83. During the sentencing hearing, the

prosecution presented evidence that Taylor was previously convicted of sex with an underage

child . . . .” Taylor argued that “[t]here is absolutely no implication that a violent act took

place during the commission of this felony.” In its brief, the State argued that “[b]ased on the

standard in Bandy,[1 ] statutory rape, or sexual intercourse with a child underage, is per se



       1
           Bandy v. State, 495 So. 2d 486 (Miss. 1986).

                                               3
violent.” In his reply brief, Taylor described the State’s position as being that “Taylor was

correctly sentenced . . . because Taylor’s previous conviction of sex with an underage child

was per se a crime of violence.”

¶6.    A good measure of confusion was injected into the appellate proceedings by the

failure to furnish the Court of Appeals with a complete record of the evidence admitted at the

sentencing hearing in the trial court. The “certified” copy of the pen pack presented to the

Court of Appeals failed to include either the indictment or the sentencing order regarding

Taylor’s felony sex crime. Even after the Court of Appeals ordered the parties to submit

supplemental briefs addressing whether Taylor’s conviction for “sexual intercourse with a

child under age” was a crime of violence, neither the appellant nor the State discovered the

oversight or argued that the documents were not part of the record. The Court of Appeals

concluded that Taylor’s prior sex-crime conviction was a crime of violence and affirmed

Taylor’s sentence.

¶7.    Taylor filed a petition for writ of certiorari, claiming that the Court of Appeals’

holding conflicts with prior decisions of this Court. The petition reasserted that the pen pack

did not include the sentencing order for Taylor’s conviction of “sexual intercourse with a

child under age,” while at the same time asking this Court to adopt the Court of Appeals’

dissent. (Emphasis added.) After granting Taylor’s petition, we held oral argument, during

which the attorneys for both parties asserted that the record did not include the sentencing

order for the felony conviction for the sex crime against an underage child. Recognizing that

all evidence considered by the trial court was significant for this Court’s determination of

                                              4
whether Taylor was lawfully sentenced as a habitual criminal, this court directed the Clerk

of Court to obtain a duplicate certified copy of the pen pack. The copy furnished in response

contained the indictment charging Taylor with a prior sex offense and the sentencing order.

The indictment alleged that Taylor, “being a person over eighteen (18) years of age . . . did

unlawfully, wilfully, and feloniously have sexual intercourse with [Jane Doe], a child under

the age of fourteen (14) years.” The sentencing order reads that Taylor entered a plea of

guilty to “sexual intercourse with a child underage.” Thus, we know with certainty that the

previous conviction at issue was for “sexual intercourse with a child under age.”

                                  LAW AND ANALYSIS

       I. Standard of Review

¶8.    “It is well-settled in this state that sentencing is within the complete discretion of the

trial court. ‘Further, the general rule in this state is that a sentence cannot be disturbed on

appeal so long as it does not exceed the maximum term allowed by statute.’” Long v. State,

52 So. 3d 1188, 1195 (Miss. 2011) (citations omitted). “The trial court’s rulings are

presumed correct, and this presumption will prevail unless the record shows otherwise.”

Hardy v. Brock, 826 So. 2d 71, 76 (Miss. 2002) (citations omitted). Under an abuse-of-

discretion standard of review, “[t]he trial court’s decision will be affirmed unless there is a

‘definite and firm conviction that the court below committed a clear error of judgment in the

conclusion it reached upon weighing of relevant factors.’” Plaxico v. Michael, 735 So. 2d

1036, 1039 (Miss. 1999) (citation omitted).

¶9.    This Court has provided that:

                                               5
       [w]e must decide cases on the facts shown by the record, not by assertions of
       fact made in briefs or suggestions of error, however sincere counsel may be in
       those assertions. Facts asserted to exist ought to, and must, be definitely
       proved and placed before us by a record thereof certified as required by law;
       otherwise we cannot, in law, know them.

Alexander v. Hancock, 174 Miss. 482, 164 So. 772 (1935), on suggestion of error, 174 Miss.

498, 165 So. 126 (1936). “Stated differently, our task on appeal is to review the actions and

decisions of the trial court judge within the context of the situation as it existed at that time.”

Phillips v. State, 421 So. 2d 476, 478 (Miss. 1982) (addressing Alexander, 165 So. at 126).

       II. The trial court did not abuse its discretion by sentencing Taylor as a
       violent habitual offender under Mississippi Code Section 99-19-83.

¶10.   “At the bifurcated hearing required under the recidivist statutes, the State must prove,

beyond a reasonable doubt, that the defendant meets the requirements for sentencing as a

habitual offender. The defendant has the right to be heard at this hearing.”Bandy, 495 So. 2d

at 491 (citing Seely v. State, 451 So. 2d 213, 215 (Miss. 1984)). For a defendant to be

sentenced under Section 99-19-83, the State must prove that he was:

       convicted twice previously of any felony or federal crime upon charges
       separately brought and arising out of separate incidents at different times and
       . . . sentenced to and served separate terms of one (1) year or more in any state
       and/or federal penal institution, whether in this state or elsewhere, and . . . any
       one (1) of such felonies shall have been a crime of violence . . . .

Miss. Code Ann. § 99-19-83 (Rev. 2007). This Court has explained that:

       for determining the defendant’s status as an habitual offender, the prosecution
       must show and the trial court must determine that the records of the prior
       convictions are accurate, that they fulfill the requirements . . . , and that the
       defendant sought to be so sentenced is indeed the person who was previously
       convicted.


                                                6
               Once the above mentioned factors have been ascertained, the trial court
       is not required to go beyond the fact of the prior convictions sought to be used
       in establishing the defendant’s status as an habitual offender. . . . [T]he trial
       court must not be placed in position of “retrying” the prior case. Certainly any
       such frontal assault upon the constitutionality of a prior conviction should be
       conducted in the form of an entirely separate procedure solely concerned with
       attacking that conviction.

Bandy, 495 So. 2d at 491 (citing Phillips v. State, 421 So. 2d 476, 481 (Miss. 1982)).

¶11.   We have further provided that “[a]ll that is required is that the accused be properly

indicted as an habitual offender . . . ; that the prosecution prove the prior offenses by

competent evidence . . . ; and that the defendant be given a reasonable opportunity to

challenge the prosecution’s proof.” Keyes v. State, 549 So. 2d 949, 951 (Miss. 1989)

(citations omitted). Each of these requirements was satisfied in the case sub judice. All agree

that Taylor was indicted as a habitual offender. The sentencing orders presented by the State

were competent evidence of Taylor’s separate felony convictions for sale of marijuana and

sexual intercourse with a child under age. McIlwain v. State, 700 So. 2d 586, 589 (Miss.

1997) (“We have regularly upheld sentences under the habitual criminal statutes where the

proof of prior convictions was made by certified copies of the judgments of conviction.[2 ]

This accords with the basic principle that the best evidence of a conviction is the judgment

of conviction.” (citations omitted)). Moreover, “[w]e have repeatedly held that orders of a

court having competent jurisdiction are presumed valid.” Farris v. State, 764 So. 2d 411, 422

(Miss. 2000) (citations omitted). “Certified copies of the indictments and sentencing orders


       2
        See Miss. R. Evid. 803(22) (judgments of conviction are not excluded by the hearsay
rule, and are admissible to prove any essential fact).

                                              7
in these prior convictions were introduced into evidence at the sentencing hearing. [Neither

the majority nor Taylor] dispute[s] their accuracy. . . . [T]hese records constitute sufficient

evidence that he was a habitual offender within this statute.” Moore v. State, 631 So. 2d 805,

805-06 (Miss. 1994). Finally, Taylor had a reasonable opportunity to challenge the

sufficiency of the evidence presented by the State at the sentencing hearing, but he declined

to do so. Thus, the State presented uncontradicted, competent evidence for Taylor to be

sentenced under Section 99-19-83, and the trial court did not abuse its discretion by doing

so.

¶12.   The dissent opines that “the evidence offered to identify the crime for which Taylor

was convicted was vague and inconsistent.” (Dissent at ¶ 32). There is no vagueness or

inconsistency in the sentencing order – Taylor was convicted of “sexual intercourse with a

child under age.”

¶13.   The trial court did not err by concluding that Taylor’s sex-crime conviction was a

crime of violence. In McQueen v. State, 473 So. 2d 971 (Miss. 1985), this Court concluded

that the term “crime of violence” is not unconstitutionally vague, citing authorities from

numerous jurisdictions:

       “[V]iolence is a general term and includes all sorts of force.”

       ...

       “Violence” is force, physical force; force unlawfully exercised. Bouvier in his
       Law Dictionary, 2 Bouvier Law Dictionary, Rawle’s 3rd Rev., p. 3402, defines
       “violence” as: “The abuse of force. That force which is employed against
       common right, against the laws, and against public liberty.”

                                              8
       ...

       “Violence” is a relative term. No particular degree of force is required to
       constitute violence. Violence is broadly defined in Webster's New
       International Dictionary, 2nd ed., as “the exertion of any physical force
       considered with reference to its effect on another than the agent.” It is not
       necessary that the impact be of sufficient force to inflict damage.

       ...

       The terms “violence” and “force” are synonymous when used in relation to
       assault, and include any application of force even though it entails no pain or
       bodily harm and leaves no mark.

McQueen, 473 So. 2d at 972-73 (emphasis added) (citations omitted). Sexual intercourse

between an underage child and an adult clearly is a crime of violence, for sexual intercourse

cannot occur without the exertion of some degree of physical force, even if it entails no pain

or bodily harm and leaves no mark. Under Mississippi law, such force is “unlawfully

exercised” and is “against the law.” 3

¶14.   The same is true for any other sex-crime victim who lacks the capacity to consent. It

matters not whether a victim is a ninety-year-old Alzheimer’s patient or a one-day-old infant,

whether he or she is a mentally handicapped person or a child. No overt act of resistance to

       3
         Numerous statutes prohibit sexual contact between an adult and a minor. See Miss.
Code Ann. § 97-3-65 (Rev. 2006) (statutory rape); Miss. Code Ann. § 97-3-95 (Rev. 2006)
(sexual battery); Miss. Code Ann. § 97-5-23 (Rev. 2006) (fondling of a child); Miss. Code
Ann. § 97-5-24 (Rev. 2006) (sexual involvement of a school employee over the age of
eighteen years with a student under the age of eighteen years); Miss. Code Ann. § 97-5-41
(Rev. 2006) (carnal knowledge of certain children). This Court also clearly has provided that
a child cannot consent to engage in sexual activity with an adult. Phillipson v. State, 943 So.
2d 670, 672 (Miss. 2006); Collins v. State, 691 So. 2d 918, 924 (Miss. 1997); McBride v.
State, 492 So. 2d 581, 584 (Miss. 1986).

                                              9
force or violence, no matter how slight, is required for sex crimes against such defenseless

victims to be crimes of violence.

¶15.   Sexual intercourse with a child under age is forceful, because, by operation of law,

the child is unable to consent. See Phillipson, 943 So. 2d at 672 (“The age of a minor is [a]

complete bar to the legal exercise of consent to sexual intercourse.”); Collins, 691 So. 2d at

924 (“‘[t]he child was under the age of consent, and it was not material whether the rape was

accomplished by force or violence and against the will of the child.’ Consent is no defense

to the charge.” (quoting McBride, 492 So. 2d at 584) (emphasis added)); Brooks v. State,

242 So. 2d 865, 867 (Miss. 1971) (“It is immaterial whether the rape was accomplished by

force or violence or against the will of the child, because she was under the age of consent.”

(emphasis added)); Wilson v. State, 221 So. 2d 100, 103 (Miss. 1969) (where the victim in

a rape case was incapable of consent, “it was not necessary to prove ‘actual force’ beyond

the mere force of penetration so that actual resistance was not necessary to constitute the

offense”). Federal courts have held the same. United States v. Herrera, 647 F. 3d 172, 180

(5th Cir. 2011) (“because a minor lacks legal capacity to consent to sexual relations, any such

relations are ‘forcible’”) (citing United States v. Remoi, 404 F. 3d 789, 795 (3d Cir. 2005)).

¶16.   Further, this Court consistently has held that sex crimes against underage children are

different. In Long v. State, 52 So. 3d 1188, the defendant previously had been convicted of

two counts of sexual assault upon a child and one count of aggravated incest with his own

daughter when she was seventeen years old. We found that at least one of the prior



                                              10
convictions was for a crime of violence, citing U.S. v. Vigil, 334 F. 3d 1215 (10th Cir. 2003),

as follows:

       “psychological brutilization is inherent in an offense like [aggravated incest]
       and incest and rape are in the same category as both being crimes of violence
       inherently whether or not raw force is used.” The Vigil court found that even
       consent by the child-victim would not eliminate the risk of physical harm and
       that the age of the victim was immaterial.

Long, 52 So. 3d at 1196 (citing Vigil, 334 F. 3d at 1220, 1223-24) (emphasis added).

¶17.   The language in Long is consistent with our holding in Bandy v. State, 495 So. 2d

486 (Miss. 1986). Bandy was charged with gratifying his lust by touching a child under the

age of fourteen years. Bandy, 495 So. 2d at 488. He was indicted as a habitual offender under

Section 99-19-83, based on prior convictions for indecency with a child under Texas law and

assault with intent to commit a felony, to wit: sodomy under Iowa law. Id. Bandy made the

same argument as Taylor does today, by challenging his sentence under Section 99-19-83

that “[t]he proof of prior convictions for enhancement did not sustain the charge.” Id. at 487.

At the habitual-offender hearing in trial court, Bandy testified that neither of the previous

crimes was violent. Id. at 490. A review of the record 4 reveals that Bandy testified that his

previous sodomy conviction was not a violent crime, because “the information . . . where it

mentions assault, was served to me . . . as being simple assault nonviolent by touching, and

that is what assault they mean. There was no violence.” He further testified that “[t]he



       4
        Appellate records for criminal cases in which the mandate was handed down more
than ten years ago are available to the public at the Mississippi Department of Archives and
History.

                                              11
charges I had in . . . Iowa was fondling. Which was termed to sodomy because of oral

copulation of the penis and it was not assault.” The trial court found that both prior

convictions “were per se violent, and that ‘beyond a reasonable doubt,’ Bandy could be

sentenced under § 99-19-83.” Id. at 490. In Bandy, this Court approvingly cited a California

Court of Appeals holding that “the word ‘violence’ . . . applies to any criminally lewd act

upon the body of the witness child.” Bandy, 495 So. 2d at 492 (quoting People v. Brown,

262 Cal. App. 2d 378 (1968)) (emphasis added). Bandy explicitly declared that “[i]n the

absence of a legislative standard, we adopt the rationale that a separate standard of

determining violence applies when the victim is a child.” Bandy, 495 So. 2d at 492 (emphasis

added).

¶18.   In Lee v. State, 322 So. 2d 751 (Miss. 1975), we held that “intercourse with a female

unable to consent because of tender years . . . establishes the common law crime of rape, the

essential element being the inability to consent rather than the requirement of force.” Lee,

322 So. 2d at 752 (emphasis added).5 In 1997, we applied the same standard when addressing

a charge of capital rape. Collins, 691 So. 2d at 924. Collins held that “capital rape does not

require that the act be ‘forcefully done against the will of the child.’ Rather, . . . ‘[t]he child

was under the age of consent, and it was not material whether the rape was accomplished by




       5
         See also People v. Parker, 74 Cal. App. 540, 545 (Cal. Ct. App. 1925) (“The reason
is that in such cases the female cannot consent to the assault. The law resists for her.”)
(emphasis added).

                                                12
force or violence and against the will of the child.’ Consent is no defense to the charge.” Id.

(quoting McBride, 492 So. 2d at 584) (emphasis added).

¶19.   Long addresses the psychological harm inherent in sex crimes against children and

the immateriality of the child’s consent. Long, 52 So. 3d at 1196. All three of Long’s

previous convictions involved felony sex crimes by an adult defendant upon a minor. Sexual

intercourse with an underage child is the conviction we consider today. If incest – sexual

penetration with a person’s own seventeen-year-old daughter – was the violent crime in

Long, then sexual intercourse with a child who is not the daughter of the defendant also is

violent, for it is the act of sexually penetrating a child that makes either a crime.6 The other

crimes referenced in Long were sexual assaults. If sexual assault was the violent crime in

Long, then it follows that sexual intercourse with an underage child (which meets all the

elements of sexual battery 7 ) also is a violent crime.

¶20.   Taylor’s argument that the decision of the Court of Appeals conflicts with this Court’s

decision in Hughes v. State, 892 So. 2d 203 (Miss. 2004), is misplaced. Taylor argues that


       6
        It would be absurd to find incest – but not sexual intercourse with a child who is not
the daughter of the defendant – violent, the only distinction being the existence of a familial
relationship. It would be equally absurd to find sodomy, but not sexual intercourse with an
underage child, to be a crime of violence.
       7
       The dissent concedes that six years’ imprisonment is a permissible sentence for a
conviction of sexual battery for “sexual penetration with (a) another person without his or
her consent[,]” but suggests that the elements are not met. (Dissent at ¶ 33). “A person is
guilty of sexual battery if he or she engages in sexual penetration with . . . [a]nother person
without his or her consent.” Miss. Code Ann. § 97-3-95(1)(a) (Rev. 2006). “Sexual
intercourse” meets the element of sexual penetration, and the law supplies the absence of
consent when the victim is an underage child.

                                               13
the Court of Appeals’ decision conflicts with a remark in Hughes that “there may be

instances of consensual, nonviolent sex which nonetheless violate the statutory rape laws .

. . .” Hughes, 892 So. 2d at 211. As the Court of Appeals astutely recognized, this remark

from Hughes is dicta and cannot control our decision today. Taylor v. State, __ So. 3d __,

2011 WL 5196781, at *1 (Miss. Ct. App. Oct. 11, 2011). Hughes was before this Court on

appeal of a conviction for kidnapping, rape, and murder of a sixteen-year-old. Hughes, 892

So. 2d at 208. The quoted statement appears in the Hughes Court’s analysis of the admission

at trial of the defendant’s prior conviction for raping a seven-year-old girl under Arkansas

law. Id. at 211. Neither the conviction on appeal nor Hughes’s prior conviction was under

Mississippi’s statutory-rape law. In other words, this Court did not have under consideration

a case of statutory rape. It follows that the statement that some consensual, nonviolent sex

acts could violate Mississippi’s statutory-rape statute was not essential to the determination

of any issue before the Hughes Court. The statement does “not embody the resolution or

determination of the court,” and “is not decisive of, nor precedent for, the case at bar.” 8 Deer

Island Fish & Oyster Co. v. First Nat’l Bank of Biloxi, 166 Miss. 162, 146 So. 116, 119

(1933); see also Lee v. Mem’l Hosp. at Gulfport, 999 So. 2d 1263, 1266, n.3 (Miss. 2008)

(“[T]his Court has held on more than one occasion that a statement which qualifies as dictum

does not have a binding effect.”) (citing Collins v. McMurry, 539 So. 2d 127, 130-31 (Miss.


       8
        Cf. Bandy, 495 So. 2d 486 (this Court’s finding that sex crimes against children are
crimes of violence was essential to its adjudication of the defendant’s assignment of error
that the State had failed to prove that he previously had been convicted of a crime of
violence).

                                               14
1989)); City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223, 225 (1940) (“Language

beyond the litigation in which it is used is limited to the facts involved in the litigation, and

all beyond that, necessary or proper for the construction of the particular subject matter

before the Court, is mere dictum – not decision. . . . [C]onsequently[,] the expressions beyond

the necessities of the case are mere dicta.”); Aetna Ins. Co. v. Commander, 169 Miss. 874,

153 So. 877, 879-80 (1934) (declaring that an earlier decision was “not a precedent here for

the . . . reason that the decision therein on the question here under consideration was not

necessary for, and did not affect, the decision of the case”). Hughes “has been carefully

considered, and we are of opinion that the language relied on . . . formed no part of the real

decision of the court.” State v. Tingle, 103 Miss. 672, 60 So. 728, 729 (1913). Accordingly,

Hughes does not control our decision today.

¶21.   Neither does the result of Brown v. State, 102 So. 3d 1087 (Miss. 2012) (Dissent at

¶ 28), control our decision today. However, we can heed the language from Brown that when

“some other provision of law . . . clearly and unambiguously requires us to [label a crime

‘violent,’]” we should do it. Brown, 102 So. 3d at 1089. In Brown, this Court considered

whether the offense of burglary of a dwelling was a crime of violence.

¶22.   Prior to Brown, no body of law had developed regarding whether burglary is a crime

of violence. In contrast, preceding the case sub judice, this Court explicitly has established

that a separate standard of violence applies to sex crimes against children, as discussed supra.

Thus, a body of law developed regarding sex crimes against children, compared to the void

that existed regarding a crime against property, the issue in Brown. We stand on our

                                               15
predecessors’ holdings that sex crimes against underage children are violent to provide us

with guidance. Our caselaw clearly and unambiguously provides that sexual intercourse with

an underage child is a crime of violence.

¶23.   Moreover, our Legislature consistently has provided that sex crimes are crimes of

violence in other Mississippi statutes addressing the penalty or punishment to be imposed for

crimes of violence. See Miss. Code Ann. § 47-7-3(1)(h) (Rev. 2011) (addressing parole

eligibility and defining “nonviolent crime” as “a felony other than . . . sex crimes . . .”); Miss.

Code Ann. § 97-1-5(2) (Supp. 2012) (“[f]or the purposes of [sentencing upon conviction of

accessory after the fact], ‘violent crime’ means . . . sex crimes . . .”). Thus, the Legislature

unambiguously has declared that sex crimes are crimes of violence, consistent with our

holdings.

¶24.   Our holdings that sex crimes against underage children are crimes of violence also

comport with the holdings of courts in other states. In State ex rel. Spaulding v. Watt, 423

S.E.2d 217 (W. Va. 1992), the West Virginia Supreme Court noted that “the word ‘violence’

in our . . . statute is not limited by the adjective ‘physical.’ There can be no dispute that even

in the absence of any significant physical trauma, sexual assaults on young children result

in severe emotional and psychological harm.” Watt, 423 S.E.2d at 219. The Court held that:

       [W]e decline to resolve the question presented here solely on the ground that
       physical violence is not an element of the crimes of which [the defendant] was
       convicted. The fact that the State elected to prosecute . . . sexual assault . . .
       based on the age of the children rather than upon a theory of forcible
       compulsion, does not mean that the children were not the victims of violence.




                                                16
Id. at 220. Accordingly, the Watt Court concluded that the sexual assault of children

involved “violence to a person” for purposes of West Virginia’s post-conviction bail statute.

Id.

¶25.   In Jarrett v. State, 333 N.E.2d 794 (Ind. Ct. App. 1975), the Indiana Court of Appeals

considered whether the intent to have intercourse with a minor satisfied the assault

requirement of intent to commit a violent injury. The Court held that, “where the female is

incapable of consent, the attempt to have intercourse satisfies the requirement . . . that the

attempt be one to commit ‘a violent injury.’” Jarrett, 333 N.E.2d at 796. In State v. Sprouse,

719 S.E.2d 234 (N.C. Ct. App. 2011), the North Carolina Court of Appeals held that “an act

of sexual intercourse with a person deemed incapable of consenting as a matter of law is a

violent act.” Sprouse, 719 S.E.2d at 242 (quoting State v. Clark, 714 S.E.2d 754 (N.C. Ct.

App. 2011) (holding that first-degree rape, which, under North Carolina law, involves a

victim under the age of thirteen years, was a violent act)).

                                      CONCLUSION

¶26.   Because Taylor’s prior conviction was for sexual intercourse with an underage child,

we conclude that, under the facts presented in this case, it was a crime of violence. Thus, the

trial court did not abuse its discretion by sentencing Taylor under Section 99-19-83.

Accordingly, we affirm the result reached by the Court of Appeals and Taylor’s sentence of

life imprisonment without the possibility of parole.




                                              17
¶27. THE SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, WITHOUT
ELIGIBILITY FOR PAROLE OR PROBATION, AFFIRMED.

    WALLER, C.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR.
CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, P.J., KITCHENS AND KING, JJ.

       CHANDLER, JUSTICE, DISSENTING:

¶28.   I respectfully dissent. In this Court’s most recent pronouncement on crimes that are

per se violent under Mississippi Code Section 99-19-83, we held that “we will not place a

‘violent crime’ label on a crime where there was no proof of a violent act, unless the statute

itself—or some other provision of law (such as the definitions within the chapter that include

the statute)—clearly and unambiguously requires us to do so.” Brown v. State, 102 So. 3d

1087, 1089 (Miss. 2012). Taylor’s crime of “sexual intercourse with a child underage” is not

defined by any statute identified by the State or by this Court. The majority errs by deeming

Taylor’s sex crime to be one of violence in the absence of an applicable statute. I would hold

that, because the record established only that Taylor previously had served six years for some

unknown sex crime, the State failed to prove beyond a reasonable doubt that Taylor had a

prior conviction of a crime of violence. And because the State bore the burden of proof

beyond a reasonable doubt, Taylor had no burden to refute the State’s evidence. Due to this

failure of proof, I would reverse and remand for resentencing under Mississippi Code Section

99-19-81.




                                             18
¶29.   I begin by clarifying that the question of whether a prior felony is a per se “crime of

violence” under Section 99-19-83 is a question of law subject to de novo review, not a matter

within the trial court’s discretion. Brown, 102 So. 3d at 1089. It is well settled that the State

must prove habitual-offender status beyond a reasonable doubt before the trial court can

impose an enhanced sentence under Mississippi Code Sections 99-19-81 and 99-19-83. See

e.g., Gilbert v. State, 48 So. 3d 516, 524-25 (Miss. 2010) (citing Dalgo v. State, 435 So. 2d

628, 630-31 (Miss. 1983)); Seely v. State, 451 So. 2d 213, 215 (Miss. 1984) (“The State has

the same burden of proof as to the habitual offender portion of the indictment as it has on the

principal charge.”). In most cases, the State can meet this burden by providing certified

copies of indictments and sentencing orders. Duplantis v. State, 708 So. 2d 1327, 1347

(Miss. 1998) (Moore v. State, 631 So. 2d 805, 806 (Miss. 1994)). Of course, this assumes

that the indictments and sentencing orders clearly and correctly reflect the nature of the prior

offenses. See Brown v. State, 222 Miss. 863, 77 So. 2d 694 (1955) (reversing conviction of

unlawful possession of intoxicating liquors, second offense, based on inconsistencies in the

judgment of conviction for first offense). Here, the trial court found that Taylor had been

previously convicted of a violent crime for the purposes of habitual-offender sentencing. The

Court of Appeals stated that the trial court had determined that Taylor’s prior crime was

“statutory rape,” and found that statutory rape is a per se violent crime. However, the record

reveals that the State failed to prove that Taylor’s crime was statutory rape or any other

specific crime defined by statute.



                                               19
¶30.   The indictment for the prior sex offense alleged that Taylor, “being a person over

eighteen (18) years of age . . . did unlawfully, wilfully, and feloniously have sexual

intercourse with [Jane Doe], a child under the age of fourteen (14) years.” Thus, the charge

alleged statutory rape, a violation of Mississippi Code Section 97-3-65(1)(b), and, because

Taylor was nineteen at the time, the potential penalty ranged from twenty years to life

imprisonment. Miss. Code Ann. § 97-3-65(3)(c) (Rev. 2006). However, the court order

reflects that Taylor was sentenced to six years’ imprisonment, referencing a guilty plea to

“sexual intercourse with a child underage.” No subsection of the statutory-rape law

authorizes a six-year sentence when the offender is eighteen years of age or older.

¶31.   The records custodian for the Mississippi Department of Corrections (MDOC) and

the Leflore County Sheriff testified that the prior conviction was for “sexual intercourse of

a child underage.” The sheriff once described the offense as “sexual assault” but stated that

he did not know any of the underlying facts. Throughout the hearing, the prosecutor was the

only person to use the term “statutory rape,” at one point describing the conviction as

“basically statutory rape.” Finally, when imposing the sentence, the trial judge referred to the

prior conviction as a “sex crime,” and the sentencing order simply stated that Taylor was a

habitual criminal as defined by Mississippi Code Section 99-19-83, without identifying his

prior convictions.

¶32.   As noted above, the documents in the pen pack establish that Taylor had pleaded

guilty to a crime designated “sexual intercourse with a child under age” or “sex offense,”

and none of the documents cited a particular statute. The indictment related to the present

                                              20
conviction, possession of marihuana in a correctional facility, charged Taylor as an habitual

offender, and alleged that he had been “previously convicted of the felony crime of statutory

rape, a crime of violence.” Although the indictment sufficiently alleged “the nature or

description of the offense,” 9 the evidence offered to identify the crime for which Taylor was

convicted was vague and inconsistent. All of the relevant evidence described a conviction

for “sex with an underage child” or a “sex offense,” and Taylor’s sentence of six years’

imprisonment does not fall within any of the permissible ranges for statutory rape. Miss.

Code Ann. § 97-3-65.

¶33.   It is true that six years’ imprisonment is a permissible sentence for sexual battery.

Miss. Code Ann. § 97-3-101(1) (Rev. 2006) (providing sentence of not more than thirty

years’ imprisonment for conviction of sexual battery under Mississippi Code Section 97-3-

95(1)(a),(b), or (2)). But this punishment is limited to “sexual penetration with (a) another

person without his or her consent; (b) a mentally defective, mentally incapacitated or

physically helpless person,” or “a child under the age of eighteen (18) years if the person is

in a position of trust or authority over the child.” Miss. Code Ann. § 97-3-95(1)(a),(b), and

(2) (Rev. 2006). “Sexual intercourse with a child under age,” does not describe precisely the

elements of any of these crimes. Sexual battery is not a lesser-included offense of statutory




       9
        See URCCC 11.03 (“In cases involving enhanced punishment for subsequent
offenses under state statutes . . . [t]he indictment must allege with particularity the nature or
description of the offense constituting the previous convictions . . . .”).


                                               21
rape, for which Taylor was indicted. For these reasons, Taylor’s crime cannot be

characterized as sexual battery.

¶34.   Taylor’s status as a habitual offender under Section 99-19-83 was contingent upon

proof beyond a reasonable doubt of a prior conviction of a crime of violence. The most the

State proved was that Taylor had pleaded guilty to violating an unspecified provision of

Mississippi’s sex-offense statutes. Because the State bore the burden of proof, Taylor had no

burden to refute the State’s evidence. Lacking sufficient clarity, the proof did not establish

that Taylor’s prior convictions warranted a sentence of life without parole pursuant to

Mississippi Code Section 99-19-83.

¶35.   This Court has held that “we will not place a ‘violent crime’ label on a crime where

there was no proof of a violent act, unless the statute itself—or some other provision of law

(such as the definitions within the chapter that include the statute)—clearly and

unambiguously requires us to do so.” Brown, 102 So. 3d at 1089. Because the State did not

prove that Taylor was convicted of a specific crime, there is no applicable criminal statute,

and this Court is unable to examine the elements of the specific crime to determine whether

that crime is per se violent. The majority’s blanket categorization of all sex crimes involving

anyone underage as per se violent crimes doubtless will result in unintended consequences

as the rule is applied in particular cases.10 Because the State did not prove beyond a




       10
        See, e.g., Taylor v. State, 2011 WL 5196781, at *11 (Miss. Ct. App. Oct. 11, 2011)
(Roberts, J., dissenting).

                                              22
reasonable doubt that Taylor had a prior conviction of a violent crime, I would reverse and

remand for resentencing under Mississippi Code Section 99-19-81.

       DICKINSON, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.




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