ROBERT PATRICK TERRELL a/k/a ROBERT P. TERRELL a/k/a PATRICK TERRELL
STATE OF MISSISSIPPI
OF JUDGMENT: 04/08/2016
DAVIS COUNTY CIRCUIT COURT HON. PRENTISS GREENE HARRELL TRIAL
ATTORNEY FOR APPELLANT: J. M. RITCHEY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY: HALDON J. KITTRELL
In 2011, Robert Patrick Terrell-through his middleman Archie
Nicholson-recruited Ricardo L. Hawthorne to record forged
property deeds purporting to convey John McLendon's
property to Hawthorne. Terrell and his coconspirators then
used the forged deeds to fraudulently induce a timber company
to buy the timber rights for $20, 300 and, unbeknownst to
McLendon, harvest his timber. A jury found Terrell guilty of
timber theft, conspiracy to commit timber theft, false
pretenses, and conspiracy to commit false pretenses.
Because the evidence was sufficient to convict Terrell of
both timber theft and false pretenses, we affirm those
convictions and sentences. However, we agree with Terrell
that the evidence supported only one conspiracy between
Terrell, Nicholson, and Hawthorne, not two. We therefore
vacate his two conspiracy sentences and remand the two
conspiracy convictions to the trial court with instructions
to dismiss-at the State's election-one of the conspiracy
counts and resentence Terrell on the remaining conspiracy
Facts and Procedural History
In March 2013, a grand jury returned a twenty-count
indictment against Terrell, Nicholson, and Hawthorne. The
charges stemmed from their scheme to "sell" the
timber on McClendon's property to Brushy Creek Timber
Company. The State charged that Terrell, who worked in the
timber industry and was familiar with property deeds, with
Nicholson as the go-between, recruited Hawthorne to record
forged warranty deeds purporting to convey McLendon's
family property to Hawthorne. Hawthorne then sold these
fraudulently obtained timber rights to the property to Brushy
Creek for $20, 300. Brushy Creek, which had no idea the
timber deed was forged, then harvested and sold
Only Terrell was tried. At the beginning of trial, the State
dismissed sixteen counts and proceeded to trial on the
remaining four counts-(1) timber theft, (2) conspiracy to
commit timber theft, (3) false pretenses, and (4) conspiracy
to commit false pretenses. A. The State's
The State's first witness was State Trooper Demetrius
Hawthorne (no relation to Ricardo Hawthorne). In 2011,
Hawthorne was a deputy sheriff in Jefferson Davis County. On
May 28, 2011, McLendon reported to the sheriff's office
that someone had been harvesting timber on his family's
property. After visiting McLendon's property himself and
seeing the large equipment and cut timber, Deputy Hawthorne
contacted the Department of Agriculture.
Chris Newman, an investigator with the Department of
Agriculture, also testified. Newman's investigation
revealed two recorded deeds-one from John McLendon and one
from Clarence McLendon-both conveying property to Ricardo
Hawthorne. Newman also found a third warranty timber deed
conveying Hawthorne's timber rights to Brushy Creek.
Newman showed the deeds to John McLendon, who maintained he
never signed them. With the recorded deeds were two
affidavits of heirship. One affidavit was from someone named
John Smith, who claimed to have known A.C. McLendon.
According to Smith, A.C. had died and left as his sole heirs
John McLendon and Clarence McLendon. The other affidavit was
from someone named Ray Rodgers. Rodgers's affidavit
claimed he had known Ellawese McLendon and that she had died,
leaving as her sole heirs John McLendon and Clarence
McLendon. But Newman's investigation revealed this claim
was false. In truth, Ellawese was still alive. In fact,
Newman had talked to her the morning of trial. Newman also
discovered that Clarence McLendon did not exist.
Newman ultimately approached Ricardo Hawthorne about the
bogus documents. And Hawthorne confessed to forging them.
Hawthorne explained that Terrell and Nicholson were also part
of the scheme.
McLendon's testimony corroborated Newman's. He
clarified that Ellawese was his wife of fifty years, not his
mother, and that she was still alive and quite spry for her
age. And he had never heard of Ray Rodgers, John Smith, or
his purported brother, Clarence. John McLendon never signed
the warranty deed claiming to transfer his property to
Hawthorne, which did not even list his correct phone number.
In fact, the first time he ever met Hawthorne was in the
sheriff's office, after the investigation started.
But McLendon did know Terrell. Terrell had approached
McLendon in 2007 about buying some timber. McLendon said he
had agreed to help Terrell out by selling below
"cruise" price. After Terrell drafted a contract, a
man who McLendon assumed was Terrell's business partner,
Isaac Haynes, wrote McLendon a check for $20, 000. The check
bounced. And the deal fell through. After that, McLendon
refused to have any further dealings with Terrell.
The State also called representatives of Brushy Creek. In
April 2011, forester Robert Newsome worked for Brushy Creek.
Part of his job was to locate property owners willing to sell
timber. If he found an interested owner, Newsome would
"cruise" the owner's property to evaluate the
timber for purchasing. Newsome testified he had talked to
Terrell several times about the Hawthorne deal.
"[Terrell] would call me to know what the hold up was on
the money issue and stuff like that."
Randy Davis owned Brushy Creek. He testified someone had
called Brushy Creek's office about some prospective
timber property. Davis had Newsome follow up with the lead.
Newsome met someone at the land located between Joe Griffith
Road and Hammond Road-where McLendon's property is
located. Newsome told Davis the timber looked good. So Davis
went out there and met with Hawthorne and another
Hawthorne told Davis he had inherited the land "from his
grandfather or something." Davis "cruised" the
timber and offered $20, 300. Hawthorne accepted. Hawthorne
then hired an attorney to issue a title opinion. Based on
this opinion, which relied on the forged deeds, Brushy Creek
wrote Hawthorne a $20, 300 check. Then, based on its contract
with Hawthorne, Brushy Creek harvested the timber. Davis
testified Brushy Creek sold the timber for a profit.
Terrell's coconspirators were also called. Nicholson
testified that he had worked for Terrell since 2005, taking
down trees after Hurricane Katrina. At first, Nicholson said
Hawthorne had approached him about needing some work, so
Nicholson introduced Hawthorne to Terrell. But then the State
confronted him with his prior statement he had given to
Newman. At that point, Nicholson admitted that it was Terrell
who had asked him if he knew anyone who would be willing to
sign some deeds. So Nicholson called Hawthorne, who agreed to
forge and record the bogus deeds for Terrell. Nicholson also
took Hawthorne to McLendon's land to meet the men from
Brushy Creek. Nicholson testified he was supposed to receive
$5, 000 from the purchase-price money but never did. On
cross-examination, Nicholson testified the State agreed to
let him out of jail, where he remained on bond, and drop the
charges if he testified against Terrell.
Hawthorne testified he had been offered $2, 000-$1, 000
upfront and $1, 000 after the deal closed-to record the false
deeds. Hawthorne said he did not draft the deeds, nor had he
ever met the person who notarized them. At first, he said
only Nicholson put him up to it. However, the State impeached
him with a prior statement he had given, in which he
implicated Terrell as the person who had organized the
scheme. Hawthorne insisted he had given the statement to try
and "put it off on Pat Terrell." Hawthorne also
claimed that, after he received the $20, 3000 check from
Brushy Creek, he tried to give Terrell his cut of the money
through a third person, but Terrell refused. When asked
pointedly if someone had paid him not to testify against
Terrell, Hawthorne admitted Terrell had paid him several
hundred dollars not to testify against him.
Civil Judgments Against Terrell
As its final witness, the State called Clint Langley of the
Jefferson Davis County Circuit Clerk's office. Langley
sponsored the admission of several civil judgments against
Terrell related to forged deeds and his wrongful taking of
The State tried to call Langley earlier in the trial. But
Terrell objected, arguing Langley had not been disclosed as a
potential witness. See URCCC 9.04(I). According to the
State, Terrell could not claim any unfair surprise. The
prosecutor explained he had just learned about the judgments
the morning of trial. But Terrell's trial attorney had
personally represented Terrell in these civil matters and was
well aware of them. The State offered the judgments under
Mississippi Rule of Evidence 404(b). The trial judge agreed
they qualified as Rule 404(b) evidence but noted he would
have to balance the judgments' admissibility with the
potential prejudice. See M.R.E. 403.
Terrell did not dispute the judgments' admissibility
under Rule 404(b). Rather, his objection was based solely on
Rule 9.04. His attorney insisted the judgments had to be
disclosed during discovery to avoid trial by ambush. The
trial judge reasoned, "You're not surprised . . . if
you were his lawyer." Still, the judge acknowledged
Terrell's counsel needed time to further review the
documents, citing Box v. State, 437 So.2d 19 (Miss.
1983). The judge ruled the State could not call Langley at
that point in the trial but possibly could call Langley
At the close of its case-in-chief, the State recalled
Langley. And this time, the judge permitted Langley to
testify. Terrell's lawyer requested a mistrial under Rule
9.04, claiming he had insufficient time to defend against the
judgments. Alternatively, he requested-in the event his
motion was denied and the judgments admitted-a limiting
instruction to prevent undue prejudice under Rule 403. The
court denied his request for a mistrial. The judge found
there was no unfair surprise, as Terrell's counsel had
represented Terrell on two of the civil matters. Also, the
judge had given Terrell's lawyer time to review the civil
judgments and interview Langley. See URCCC
After the judge decided the evidence passed Rule 403 muster,
the court admitted two judgments into evidence. One was a
2012 order granting summary judgment to several plaintiffs
who had sued Terrell and his timber company for forging deeds
with their signatures and causing them more than $10, 000 in
damages. The other was a 2009 judgment ordering Terrell to
pay $40, 000 for wrongfully cutting timber from one hundred
acres of land in Jefferson County belonging to someone else.
At the end of trial, the judge gave a limiting instruction.
He specifically instructed the jury it could consider the
judgment as evidence of Terrell's knowledge and intent
but not as "proof of guilt of the charges for which he
is presently on trial."
At the close of the State's case, Terrell moved for a
directed verdict, which was denied. Terrell rested without
calling any witnesses.
The jury found Terrell guilty on all four counts. He was
sentenced to five years' imprisonment for timber theft
and five years for conspiracy to commit timber theft. He was
also sentenced to ten years for false pretenses and five
years for conspiracy to commit false pretenses. The court
ordered all sentences to run consecutively. In addition to
imposing $25, 000 in fines,  the court also ordered Terrell to
pay McLendon $97, 921.64 in restitution.
The trial judge denied his post-trial motion for judgment
notwithstanding the verdict (JNOV) or, alternatively, a new
trial. Terrell now appeals to this Court.
Motion for Directed Verdict and JNOV
On appeal, Terrell argues the trial court wrongly denied his
motions for directed verdict and JNOV. Both motions
challenged the sufficiency of the State's evidence.
When reviewing a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the State. And we ask whether "any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." Bush v. State, 895
So.2d 836, 843 (Miss. 2005).
Terrell casts the testimony of his coconspirators Nicholson
and Hawthorne, not in a light most favorable to the State,
but in an unfavorable light. He suggests their
testimony was "uncorroborated, unreasonable,
self-contradictory and substantially impeached." Thus,
he argues, it was insufficient as a matter of law to convict
Usually, uncorroborated testimony may sustain a conviction.
But we have held this general notion inapplicable when
"testimony is unreasonable, self contradictory or
substantially impeached." Osborne v. State, 54
So.3d 841, 846 (Miss. 2011) (citing Ballenger v.
State, 667 So.2d 1242, 1253 (Miss. 1995)). Terrell's
problem is that he fails to show Nicholson's and
Hawthorne's testimonies were uncorroborated-let alone so
unreasonable, self-contradictory, or substantially impeached
that they were insufficient as a matter of law to support his
Hawthorne's testimony corroborated Nicholson's and
vice versa. See id. at 847 (requiring "[o]nly
slight corroboration of an accomplice's testimony").
Yet Terrell contends one accomplice's testimony cannot
corroborate another's. As support, he cites Williams
v. State, 32 So.3d 486 (Miss. 2010). But this is not
what Williams says. Rather, Williams
explained "that testifying accomplices cannot
corroborate each other sufficiently to obviate the
necessity of a cautionary jury instruction."
Id. at 492 (emphasis added). And here, the trial
court gave a cautionary instruction on accomplice testimony.
So Williams does not apply. Further, both
Nicholson's and Hawthorne's testimony was
corroborated in part by Newsome, who testified he spoke
several times with Terrell about the Hawthorne/Brushy Creek
deal. He too connected Terrell to this venture. See
Osborne, 54 So.3d at 847. The State also presented other
circumstantial evidence-namely, McLendon's 2007 dealing
with Terrell and the civil judgments-that supported both
accomplices' implicating Terrell as the mastermind behind
the scheme to use forged deeds to steal timber.
As to Terrell's claims that Nicholson's and
Hawthorne's testimony was contradictory and substantially
impeached, this goes to the weight and credibility-not the
legal sufficiency-of Nicholson's and Hawthorne's
testimony. And it is the jury's job to make weight and
credibility determinations. Osborne, 54 So.2d at
846. "[W]here the evidence justifies a verdict, "
we must accept this evidence "as having been found
worthy of belief." Gillett v. State, 56 So.3d
469, 505 (Miss. 2010).
Next, Terrell specifically challenges the sufficiency of the
evidence supporting his conviction for timber theft. Under