TOMPKINS v. STATE

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Docket Number

No. 1998-KA-01806-COA

Attorney(S)

ATTORNEY FOR APPELLANT: BERNARD GAUTIER. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: PAT FLYNN, DISTRICT ATTORNEY: DALE HARKEY.

Judges

PAYNE, J., FOR THE COURT:

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Smart Summary

Factual and Procedural Background

Royce Reuben Tompkins, age thirty-seven, was indicted, tried and convicted in the Circuit Court of Jackson County, Mississippi, for capital rape of K.D., a thirteen-year-old female who had an ongoing sexual relationship with Tompkins beginning July 1997. Facts recited in the opinion include K.D.'s disappearance on the night of September 26, 1997, her return in distress and subsequent hospitalization, K.D.'s testimony about multiple sexual encounters (including the September incident), and an incident on November 5, 1997 in which Tompkins was found in K.D.'s bedroom with his pants off and fled out a window when K.D.'s mother turned on a flashlight and called 911.

Tompkins was convicted of capital rape and sentenced to life imprisonment. He appealed, raising multiple issues. The Court of Appeals affirmed the conviction, concluded several trial rulings were correct or harmless, but found error in the sentencing procedure: the trial court sentenced under an outdated statutory view and did not apply a statutory amendment effective before sentencing. Consequently the court vacated the life sentence and remanded for re-sentencing under the correct statutory scheme. All costs of the appeal were assessed to Jackson County.

Legal Issues Presented

The court erred in admitting evidence of other crimes, wrongs or acts of the defendant done subsequent to the crime charged in the indictment.
The court failed to properly instruct the jury on the elements of the crime (S-1) and granted an instruction (S-2) which amounted to either a directed verdict or a prejudicial comment on the weight of the evidence.
Representation by trial counsel amounted to ineffective assistance of counsel.
The penalty imposed is cruel and unusual punishment.
Defendant was sentenced under the wrong statute, that is under the code section that had been replaced by an ameliorative amendment effective prior to his sentencing.

Arguments of the Parties

Appellant's Arguments (Tompkins)

Admission of evidence of other crimes was improper: testimony about Tompkins being found in K.D.'s bedroom in November 1997 (a trespass subsequent to the charged offense) should have been excluded; evidence of prior oral sex and prior sexual acts were highly prejudicial and violated due process.
Two State jury instructions were improper: (a) instruction on elements omitted explicit language requiring penetration by the penis or sex organ; (b) an instruction regarding force effectively directed a verdict or commented prejudicially on the weight of the evidence.
Trial counsel's representation was deficient in numerous respects and amounted to ineffective assistance under Strickland v. Washington.
The life sentence was cruel and unusual punishment under the Eighth Amendment.
The trial court sentenced under an outdated statute and failed to apply an ameliorative amendment to § 97-3-65 that became effective before sentencing.

Appellee's Arguments (State)

The opinion does not contain a detailed, standalone account of the State's arguments; the Court's opinion addresses and resolves the appellant's claims using cited authority and established standards of review.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Edwards v. State, 737 So.2d 275 (Miss. 1999)	Standard that trial judge has considerable discretion on relevancy and admissibility of evidence; appellate review limited absent abuse of discretion.	Quoted to state the standard of review for evidentiary rulings and to support deference to the trial court's admissibility determinations.
Stromas v. State, 618 So.2d 116 (Miss. 1993)	General rule that a sentence will not be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.	Used as the general sentencing-review standard cited by the court.
Barbetta v. State, 738 So.2d 258 (Miss. Ct. App. 1999)	Under M.R.E. 404(b), evidence of prior offenses of the same kind with the prosecuting witness is generally admissible to show corroboration, intimate relation, lustful disposition, and probability of commission.	Relied upon to conclude evidence of prior sexual acts between Tompkins and K.D. was properly admitted.
Davis v. State, 367 So.2d 445 (Miss. 1979)	Permitted victim testimony of prior sodomy by the accused (example of admitting prior sexual acts).	Referenced as precedent allowing testimony of prior sexual acts with the victim to be admitted.
Speagle v. State, 390 So.2d 990 (Miss. 1980)	Allowed evidence of prior incestuous conduct with the victim (another example of admitting prior sexual acts).	Used to support admissibility of prior sexual conduct evidence.
Mitchell v. State, 539 So.2d 1366 (Miss. 1989)	Under Rule 404(b), evidence of other sexual relations may be admitted only if such acts occurred between the defendant and the particular victim at issue.	Cited as limiting principle confirming admissibility only when prior acts were between the defendant and the victim.
Gray v. State, 728 So.2d 36 (Miss. 1998)	Instruction need not use the exact statutory phrasing; "sexual intercourse" in an instruction can be sufficient when the instruction is considered as a whole.	Applied to hold that the instruction omitting the words "penis" or "sex organ" was nonetheless adequate because "sexual intercourse" is commonly understood to mean penile penetration and instructions are read as a whole.
Williams v. State, 667 So.2d 15 (Miss. 1996)	Jury instructions must be read as a whole; no single instruction should be taken out of context.	Invoked to reject the claim that an instruction amounted to a directed verdict when read together with the elements instruction.
Mackbee v. State, 575 So.2d 16 (Miss. 1990)	Support for instruction-law principle that instructions are read in context (cited by Williams).	Indirectly cited as authority for treating instructions collectively when determining propriety.
Strickland v. Washington, 466 U.S. 668 (1984)	Two-prong ineffective-assistance standard: (1) deficient performance and (2) prejudice to the defendant such that confidence in the outcome is undermined.	Applied as the governing test for Tompkins's ineffective assistance claim; court concluded any deficiencies were not outcome-determinative under Strickland.
Finley v. State, 739 So.2d 425 (Miss. Ct. App. 1999)	Application of the Strickland standard in Mississippi appellate context.	Cited to frame the ineffective-assistance inquiry and to support application of Strickland to the record.
Guerrero v. State, 97-KA-00387-COA (Miss. Ct. App. Mar. 9, 1999)	Duty of an appellant to provide authority; appellate court need not consider assignments of error when no authority is cited.	Used to note that an ineffective-assistance claim was arguably not properly before the court because Tompkins initially failed to provide authority, though the court nevertheless addressed the claim on the merits.
Handford v. State, 736 So.2d 1069 (Miss. Ct. App. 1999)	Sentencing is within the trial court's discretion and not subject to appellate review if within statutory limits.	Invoked to frame the limited circumstances under which the appellate court will review sentencing.
Reynolds v. State, 585 So.2d 753 (Miss. 1991)	Support for the principle that sentencing discretion of trial court is given deference when within statutory bounds.	Cited as supportive authority for the sentencing-review standard.
Davis v. State, 724 So.2d 342 (Miss. 1998)	Even mandatory statutory sentences must be examined under the Eighth Amendment; proportionality concerns may justify review.	Used to introduce the proportionality (Eighth Amendment) inquiry for Tompkins's cruel-and-unusual-punishment claim.
Solem v. Helm, 463 U.S. 277 (1983)	Supreme Court's proportionality test (gravity of offense vs. harshness of penalty; sentences of others in jurisdiction; sentences in other jurisdictions).	Identified as the controlling U.S. Supreme Court test for proportionality to be applied (as incorporated in Mississippi decisions).
Fleming v. State, 604 So.2d 280 (Miss. 1992)	Mississippi Supreme Court's application of the Solem three-factor proportionality test.	Adopted as the analytical framework for evaluating claims that a sentence is disproportionate.
Clowers v. State, 522 So.2d 762 (Miss. 1988)	Example where a maximum sentence for a relatively small nonviolent crime (forgery) was reduced as disproportionate; courts should give substantial deference to legislative sentencing schemes and Clowers is an exception.	Distinguished by the court; Tompkins's sentence was not found disproportionate in light of Clowers and the governing standards.
Daniels v. State, 742 So.2d 1140 (Miss. 1999)	When a statute is amended to provide for a lesser penalty and the amendment takes effect before sentencing, the trial court must sentence according to the statute as amended.	Applied directly: because the amendment to §97-3-65 took effect before Tompkins's sentencing, the court held he must be re-sentenced under the amended statute and vacated the life sentence for that limited purpose.

Court's Reasoning and Analysis

The court applied established standards of review and existing Mississippi precedent to each issue Tompkins raised and explained its conclusions as follows:

Evidence of other sexual acts between Tompkins and K.D. that occurred prior to the charged offense were admissible under M.R.E. 404(b). The court relied on Barbetta and cited precedent (Davis, Speagle, Mitchell) to explain that prior offenses of the same kind with the prosecuting witness may be admitted for corroboration, to show an intimate relationship, the defendant's disposition, and the probability of commission. The court therefore concluded the trial court properly admitted evidence of prior sexual acts between Tompkins and the victim.
Evidence of acts subsequent to the charged offense (specifically the November incident in which Tompkins was found in K.D.'s bedroom) was improperly admitted, but the court characterized that admission as harmless error. The court found the remaining evidence (testimony of K.D., K.D.'s mother E.L., Sgt. Deflanders, and Tompkins's own statement admitting the crime) overwhelmingly supported conviction, rendering the erroneous admission non-prejudicial.
On jury instructions, the court evaluated the challenged instructions together. Citing Gray, the court held that an instruction using the term "sexual intercourse" was sufficient without explicit statutory wording requiring penile penetration because the instruction must be read as a whole and sex-intercourse is commonly understood to involve penile penetration. Citing Williams and Mackbee, the court further held that the instruction stating force was immaterial if the victim was under 14 did not amount to a directed verdict when read in context with the elements instruction.
The court applied the Strickland two-prong test to the ineffective-assistance claim, concluding that although trial counsel may have made trial choices that could be criticized, those choices were not outcome-determinative given the strength of the evidence. The court also noted procedural shortcomings in Tompkins's briefing (failure to cite authority initially) but addressed the claim on the merits and found no reversible deficiency.
On sentencing, the court explained that the statutory scheme governing "capital rape" had been amended effective July 1, 1998, altering the sentencing options (eliminating the death penalty and providing imprisonment "for life ... or such lesser term ... but not less than twenty (20) years"). The trial judge, however, sentenced on September 1, 1998 under the mistaken belief that life imprisonment was the only option. Relying on Daniels, the court held that when a statute is amended to provide a lesser penalty and the amendment takes effect before sentencing, the defendant must be sentenced according to the amended statute. Accordingly, although the life sentence was within the statutory limits, the court vacated the sentence and remanded for re-sentencing under the correct statutory scheme.

Holding and Implications

CONVICTION AFFIRMED; SENTENCE VACATED AND CAUSE REMANDED.

Direct consequences:

The Jackson County Circuit Court's judgment of conviction for capital rape is affirmed.
The life sentence imposed on September 1, 1998 is vacated because the trial court applied an outdated view of the sentencing statute; the case is remanded to the trial court for the limited purpose of re-sentencing under the amended §97-3-65 that was effective prior to sentencing.
All costs of the appeal were assessed to Jackson County.

Broader implications:

The opinion enforces the principle that sentencing must conform to statutory amendments in effect at the time of sentencing (per Daniels) and reiterates admissibility principles governing prior sexual acts under M.R.E. 404(b). The court did not announce a new rule of law; rather, it applied established precedent and directed limited relief (re-sentencing) to correct the trial court's statutory error.

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ROYCE REUBEN TOMPKINS APPELLANT v. STATE OF MISSISSIPPI APPELLEE.

PAYNE, J., FOR THE COURT:

PROCEDURAL HISTORY

¶ 1. This is a criminal appeal from the Circuit Court of Jackson County, Mississippi, where Royce Reuben Tompkins was convicted of capital rape and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Tompkins filed this appeal.

FACTS

¶ 2. Royce Reuben Tompkins, a thirty-seven year old man, was convicted of capital rape of K.D., a thirteen year old child who was a friend of Tompkins's twelve year old daughter. Tompkins and K.D. began their ongoing sexual relationship in July 1997. The evening of Friday, September 26, 1997, K.D.'s parents could not find her. K.D.'s mother, E.L., phoned the Tompkins's residence, and no one there knew of K.D.'s whereabouts. Later in the night, K.D. called home and asked someone to pick her up from a local Quick-Stop. When she got home, K.D. was crying, and her mother took her to the hospital. Two days later K.D.'s parents learned she had been with Tompkins the previous Friday night, and they filed a capital rape charge against Tompkins.

To protect the child's identity, we have opted to use her initials rather than her name.

¶ 3. On November 5, 1997, K.D.'s mother, E.L., was sleeping on the floor in K.D.'s room. Upon hearing noises, she turned on a flashlight to find Tompkins standing in the room with his pants off. E.L. called 911 as Tompkins fled through the window. Throughout the time of Tompkins's relationship with K.D., Tompkins was sending letters to K.D. professing his love for her. K.D. revealed this in her testimony and also revealed she and Tompkins engaged in several sexual encounters with one another, including on the night of her disappearance in September.

ARGUMENT AND DISCUSSION OF THE LAW STANDARD OF REVIEW

¶ 4. In this petition, Tompkins raises the following issues for our review, and we list these issues verbatim from Tompkins's brief:

I. THE COURT ERRED IN ADMITTING EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS OF THE DEFENDANT DONE SUBSEQUENT TO THE CRIME CHARGED IN THE INDICTMENT.

II. THE COURT FAILED TO PROPERLY INSTRUCT THE JURY ON THE ELEMENTS OF THE CRIME (S-1) AND GRANTED AN INSTRUCTION (S-2) WHICH AMOUNTED TO EITHER A DIRECTED VERDICT OR A PREJUDICIAL COMMENT ON THE WEIGHT OF THE EVIDENCE.

III. REPRESENTATION BY TRIAL COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

IV. THE PENALTY IMPOSED IS CRUEL AND UNUSUAL PUNISHMENT.

V. DEFENDANT WAS SENTENCED UNDER THE WRONG STATUTE, THAT IS UNDER THE CODE SECTION THAT HAD BEEN REPLACED BY AN AMELIORATIVE AMENDMENT EFFECTIVE PRIOR TO HIS SENTENCING.

¶ 5. Our standard of reviewing the decision of a trial court is well-established. "A trial judge is allowed considerable discretion as to the relevancy and admissibility of evidence and, unless his judicial discretion is abused, this Court will not reverse his ruling." Edwards v. State, 737 So.2d 275 (¶ 59) (Miss. 1999) (citations omitted). "As a general rule, a sentence will not [be] disturbed on appeal so long as it does not exceed the maximum term allowed by statute." Stromas v. State, 618 So.2d 116, 122 (Miss. 1993) (citations omitted).

¶ 6. Finding no error in Tompkins's conviction, we affirm as Issue I, Issue II, and Issue III. However, we find Tompkins's challenge of his sentence, in part, to be meritorious. Accordingly, we vacate the sentence and remand for the limited purpose of re-sentencing.

ANALYSIS OF THE ISSUE PRESENTED I. THE COURT ERRED IN ADMITTING EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS OF THE DEFENDANT DONE SUBSEQUENT TO THE CRIME CHARGED IN THE INDICTMENT. ¶ 7. Tompkins claims evidence of other crimes against him should not have been admitted in this case. Specifically, Tompkins argues testimony that he was found in K.D.'s bedroom the night in November 1997 should not have been admitted as this crime of "trespass" was a wholly separate crime in itself and was subsequent to the charge filed against him. Tompkins also claims evidence that he and K.D. engaged in oral sex prior to his arrest is inadmissible as this violates his due process rights and is highly prejudicial.

¶ 8. First, we examine acts in which Tompkins and K.D. engaged prior to the crime in question to determine if evidence of such acts is admissible. Both Tompkins and K.D. admit they had an ongoing sexual relationship prior to the September 1997 charges against Tompkins; however, Tompkins contests the admissibility of such evidence. For reasons detailed further in this opinion, we find evidence of these prior acts was properly admitted.

¶ 9. We look to the case of Barbetta v. State, 738 So.2d 258 (Miss. Ct. App. 1999), where this Court was faced with the similar question as to whether or not evidence of prior sex acts with the same victim were admissible. In concluding such were admissible under Mississippi Rule of Evidence 404(b), we stated:

[E]vidence is generally held to be admissible which shows or tends to show prior offenses of the same kind committed by defendant with the prosecuting witness. The courts assign various reasons for the admission of this evidence such as corroboration of the offense charged, to show the intimate relation between the parties, the lustful disposition of defendant toward the prosecuting witness, and the probability of his having committed the offense charged.

Barbetta, 738 So.2d at 258 (¶ 7).

¶ 10. The Barbetta court also addressed similar cases in which prior sex acts with the same victim were admitted. In Davis v. State, 367 So.2d 445 (Miss. 1979), the supreme court allowed the eleven year old victim to testify that the accused had sodomized her on a prior occasion; in Speagle v. State, 390 So.2d 990 (Miss. 1980), the supreme court allowed evidence of prior incestuous conduct with the victim to be admitted; in Mitchell v. State, 539 So.2d 1366, 1372 (Miss. 1989), the court concluded that under Rule 404(b) evidence of other sexual relations could only be admitted if such acts occurred between the defendant and the particular victim at issue. Barbetta, 738 So.2d at (¶ 8).

¶ 11. In light of the aforementioned cases, evidence concerning the prior sex acts between Tompkins and K.D. was properly admitted.

¶ 12. Tompkins also argues evidence of acts subsequent to his arrest was improperly admitted. We agree but find the admission of this subsequent act to be harmless error. The evidence in this case overwhelmingly supported a conviction, and the statute on this crime was quite clear on elements of the crime. All of the evidence in this case points directly toward guilt: the testimonies of K.D., E.L., and Sgt. Deflanders, together with Tompkins's own statement to the police wherein he admitted to the crime, were sufficient to convict Tompkins.

¶ 13. The evidence in this case was overwhelmingly incriminating despite the wrongful admission of evidence of subsequent acts. Though we find this issue to be harmless and not grounds for reversal in the case sub judice, we do find the trial court should exercise more caution and be more attentive when M.R.E. 404(b) issues are raised to prevent any further confusion or need to analyze whether the court's actions were proper or not.

II. THE COURT FAILED TO PROPERLY INSTRUCT THE JURY ON THE ELEMENTS OF THE CRIME (S-1) AND GRANTED AN INSTRUCTION (S-2) WHICH AMOUNTED TO EITHER A DIRECTED VERDICT OR A PREJUDICIAL COMMENT ON THE WEIGHT OF THE EVIDENCE.

¶ 14. Tompkins argues two of the State's jury instructions were improper statements of the law. The first instruction at issue regards the elements of the crime and states:

The Court instructs the Jury that the defendant, Royce Reuben Tompkins, has been charged with the crime of Capital Rape for having had unlawful sexual intercourse with [K.D.], a female under the age of fourteen (14) years of age by actual penetration of her private parts. If you find from the evidence in this case, beyond a reasonable doubt, that:

(1) Between June 1997 thru September 1997, in Jackson County, Mississippi;

(2) The Defendant, Royce Reuben Tompkins, was a person eighteen (18) years of age or older; and

(3) [K.D.] was a female under the age of fourteen (14) years; and

(4) The Defendant, Royce Reuben Tompkins, had sexual intercourse with [K.D.] by actual penetration of her private parts;

then you shall find the Defendant, Royce Reuben Tompkins, guilty of Capital Rape. If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant, Royce Reuben Tompkins, not guilty of Capital Rape.

The pertinent part of this instruction reads, "The Defendant, Royce Reuben Tompkins, had sexual intercourse with [K.D.] by actual penetration of her private parts." Tompkins says this was improper as it failed to include penetration by "the penis" or the "sex organ" which had to be included in the instruction as it was an essential element of the crime. We disagree.

¶ 15. A similar issue regarding jury instructions arose in Gray v. State, 728 So.2d 36 (Miss. 1998). In Gray, the issue was whether or not the instruction containing "sexual intercourse" as the only description of the violative act was sufficient to instruct the jury on the elements of the crime or whether the actual statutory language must be present. The Gray court said:

The instruction did not have to mention sexual intercourse to have been sufficient. . . . This Court has long held that such an instruction . . . sufficiently sets out the elements of rape. . . . The instruction must be considered as a whole, and the words contained therein given their customary, ordinary and usual meaning.

Id. at (¶¶ 113-115). Applying the Gray law to the case sub judice, sexual intercourse is widely recognized as meaning penetration by the penis; thus, this instruction was adequate as given.

¶ 16. The second instruction at issue involved whether or not force was used. The instruction states, "The Court instructs the Jury that it is immaterial whether the Rape was accomplished by force or violence or against the will of [K.D.], if [K.D.] was under the age of 14 years."

¶ 17. Tompkins argues this instruction amounts to a directed verdict instruction as it instructs that rape was committed. In light of the previous instruction regarding whether or not to find rape occurred, it is evident the second instruction was only to be applied if the jury found the elements detailed in the prior instruction were met. "[J]ury instructions are to be read as a whole and no one instruction is to be taken out of context of the whole." Williams v. State, 667 So.2d 15, 24 (Miss. 1996) (citing Mackbee v. State, 575 So.2d 16 (Miss. 1990)). Reading this instruction with the afore described instruction, we find no problem with this instruction, as well.

III. REPRESENTATION BY TRIAL COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 18. "A claim of ineffective assistance of counsel is judged by the standard in Strickland v. Washington, 466 U.S. 668 (1984). The two inquiries under the Strickland standard are "(1) whether counsel's performance was deficient, and, if so, (2) whether the deficient performance was prejudicial to the defendant in the sense that our confidence in the correctness of the outcome is undermined." Finley v. State, 739 So.2d 425 (¶ 5) (Miss. Ct. App. 1999) (citing Strickland, 466 U.S. at 687).

¶ 19. Tompkins lists over two pages of what he sees as deficiencies in his counsel's representation of him at trial. Applying the Strickland test to Tompkins's situation, however, all the claims appear not to be outcome determinative. That is, even if trial counsel did make some poor choices, the outcome of guilty was correct, as stated before, and these mistakes did not interfere with the jury's reaching the proper verdict as dictated by the evidence.

¶ 20. Tompkins fails to cite any authority with this issue in his first brief, but then does in his reply brief after appellee's revelation of the fact. "`[I]t is the duty of an appellant to provide authority and support of an assignment.' Further, `if a party does not provide this support this Court is under no duty to consider assignments of error when no authority is cited.'" Guerrero v. State, 97-KA-00387-COA (¶ 7) (Miss. Ct. App. Mar. 9, 1999). Arguably, this issue is not properly before this Court. Nonetheless, if we consider the authority cited in the reply brief for this issue, there still is no merit to the argument that Tompkins's trial counsel was ineffective.

IV. THE PENALTY IMPOSED IS CRUEL AND UNUSUAL PUNISHMENT. V. DEFENDANT WAS SENTENCED UNDER THE WRONG STATUTE, THAT IS UNDER THE CODE SECTION THAT HAD BEEN REPLACED BY AN AMELIORATIVE AMENDMENT EFFECTIVE PRIOR TO HIS SENTENCING. ¶ 21. We discuss Tompkins's last two assignments of error together for reasons that will become apparent. First "[s]entencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute." Handford v. State, 736 So.2d 1069 (¶ 11) (Miss. Ct. App. 1999) (citing Reynolds v. State, 585 So.2d 753, 756 (Miss. 1991)).

¶ 22. The Mississippi Code defines the definition and punishment for capital rape in our state:

(1) The crime of statutory rape is committed when . . .(b) A person of any age has sexual intercourse with a child who: (i) Is under the age of fourteen (14) years; (ii) Is twenty-four (24) or more months younger than the person; and (iii) Is not the person's spouse . . . (c) Neither the victim's consent nor the victim's lack of chastity is a defense to a charge of statutory rape.

(2) Upon conviction for statutory rape, the defendant shall be sentenced as follows: . . . (c) If eighteen (18) years of age or older and convicted under paragraph (1)(b) of this section, to imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.

Miss. Code Ann. § 97-3-65 (Supp. 1999).

Throughout this opinion reference is made to the crime of "capital rape" since this is the term used in both the indictment and in the judgment. A discrepancy lies, however, in deciphering which code section applies to the crime of capital rape and which section applies to the separate crime of statutory rape.
Prior to 1998, § 97-3-67 was the statutory rape provision (victim between ages of 14-18) and § 97-3-65 was the capital rape provision (victim under 14). In 1998, § 97-3-65 was amended to encompass both of these sections and § 97-3-67 was repealed. The current § 97-3-65 does not use the term "capital rape" but entitles its section "statutory rape" and includes elements of both capital and statutory rape, differentiating the elements and punishments of each.
Reading further into the amended § 97-3-65 we find (1) (a) is the statutory rape provision and (1) (b) is the capital rape provision. Additionally, the capital rape punishment is found in (2)(c) wherein the punishment is changed from the previous penalty of life imprisonment or death penalty to the new penalty of twenty years to life imprisonment. This amendment does not affect the case sub judice as the elements of Tompkins's crime are met according to both the old and the new sections.

¶ 23. Tompkins argues his punishment of the maximum allowed by law constituted cruel and unusual punishment under the Eighth Amendment. Tompkins further argues the trial court was unaware of the amendment to §97-3-65 and did not know another option existed for sentencing other than life imprisonment. As supported by the above authority, sentences falling within the statutory guidelines of a particular crime are deemed appropriate.

¶ 24. "Even as to those circumstances for which the statutes provide mandatory sentences, the punishment must be weighed against the prohibition imposed in the Eighth Amendment to the United States Constitution against cruel and unusual punishment." Davis v. State, 724 So.2d 342 (¶ 14) (Miss. 1998). In conducting a proportionality test weighing the punishment against the crime, the United States Supreme Court case Solem v. Helm, 463 U.S. 277 (1983), set the standard to follow. In Fleming v. State, 604 So.2d 280 (Miss. 1992), the Mississippi Supreme Court applied the Solem test:

[T]he 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. This Court will review a sentence, however, where it is alleged that the penalty imposed is disproportionate to the crime charged . . . The United States Supreme Court set out three factors for courts to consider when conducting a proportionality analysis. The criteria include: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.

Fleming, 604 So.2d at 302-03.

¶ 25. Tompkins cites Clowers v. State, 522 So.2d 762 (Miss. 1988), and draws an inaccurate conclusion that Clowers's sentence was grossly disproportionate to his crime. In Clowers, a man convicted of forging a $250 check was given the maximum sentence by law as an habitual offender and argued such sentence was disproportionate to his crime. The trial court exercised the Solem proportionality test and found such sentence was too harsh and reduced it.

Our approval of the sentence in [this case] should not be taken to intimate that reduced sentences for habitual offenders might become the rule. Solem v. Helm does not represent a de facto grant of sentencing discretion, but, rather, ties proportionality to the three-step analysis outlined therein . . . [A]s the Supreme Court acknowledged in Solem v. Helm, "`outside the context of capital punishment, successful challenges to the proportionality of a particular sentence [will be] exceedingly rare. . . .'" We should give "substantial" deference to the Legislature in the present context, and, thus, extended analysis rarely will be necessary.

Clowers, 522 So.2d at 765 (citations omitted). As stated above by the trial judge, Clowers is the exception to the rule. Thus, Tompkins's argument that his sentence is disproportionate for his crime is without legal or factual merit. However, while not disproportionate, Tompkins's sentence is problematic in that the trial court employed an outdated statute in the imposition of Tompkins's sentence.

¶ 26. Tompkins argues that the trial judge failed to consider the July 1, 1998 amendment to § 97-3-65 which altered the sentencing scheme for the crime of capital rape. Prior to the amendment, the sentencing authority had two options: life in prison or death. The amended statute eliminates the death penalty option and provides a sentence ranging from "imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years." Miss. Code Ann. § 97-3-65 (2)(c) (Cum. Supp. 1999).

¶ 27. As discussed above, as long as the sentence was within statutory guidelines, we will not reverse. However, while Tompkins's sentence was within the statutory limits, his argument remains meritorious in that the trial court sentenced Tompkins to a life term of imprisonment under the mistaken belief that this was his only option. This error on the part of the trial court is evidenced in the record. Tompkins's attorney objected to the statutory sentencing scheme as being unconstitutional. This objection drew the following response from the trial judge:

By the Trial Court: All right. Well, I will overrule the objection. The Legislature has provided by statute that the punishment for this crime will be life imprisonment. Of course, they also provided the death penalty, but the U.S. Supreme Court has decreed that the death penalty cannot be given in a case where, in a capital rape case where death was not taken, or someone was not killed. So, based on the statute then, I'll sentence you to serve a term of life imprisonment. . . .

Accordingly, it is apparent that the trial court sentenced Tompkins to a life term because he thought that such sentence was his only option.

¶ 28. In Daniels v. State, 742 So.2d 1140, 1145 (Miss. 1999), our unanimous supreme court held that "when a statute is amended to provide for a lesser penalty, and the amendment takes effect before sentencing, the trial court must sentence according to the statute as amended." Having been sentenced on September 1, 1998, Tompkins was entitled to be sentenced under the amended statute which became effective two months prior to the imposition of Tompkins's sentence. While the trial court may well impose upon Tompkins the same sentence herein imposed, such sentence must be imposed under the proper statute. Accordingly, we vacate the sentence of life imprisonment and remand this cause for the limited purpose of re-sentencing under the correct statutory scheme.

¶ 29. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL RAPE IS AFFIRMED. THE SENTENCE OF LIFE IMPRISONMENT IS VACATED AND THIS CAUSE REMANDED FOR THE LIMITED PURPOSE OF RE-SENTENCING UNDER THE CORRECT STATUTORY SCHEME. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P. JJ., BRIDGES, DIAZ, IRVING, LEE, MOORE, AND THOMAS, JJ., CONCUR.