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Terrell v. State

Supreme Court of Mississippi, En Banc

January 4, 2018


          DATE OF JUDGMENT: 04/08/2016






         ¶1. 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.

         ¶2. 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 count.

         Background Facts and Procedural History

         I. Indictment

         ¶3. 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 McLendon's timber.

         II. Trial

         ¶4. 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 Evidence

         1. Investigators

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         2. Victims

         ¶9. 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.[1] 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.

         ¶10. 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.

         ¶11. 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."

         ¶12. 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 unidentified man.

         ¶13. 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.

         3. Coconspirators

         ¶14. 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.

         ¶15. 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.

         4. Civil Judgments Against Terrell

         ¶16. 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 timber.

         ¶17. 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).[2] 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.

         ¶18. 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 later.

         ¶19. 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 9.04.

         ¶20. 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.

         ¶21. 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."

         B. Defense

         ¶22. At the close of the State's case, Terrell moved for a directed verdict, which was denied. Terrell rested without calling any witnesses.

         III. Conviction

         ¶23. 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, [3] the court also ordered Terrell to pay McLendon $97, 921.64 in restitution.

         ¶24. 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.


         I. Motion for Directed Verdict and JNOV

         ¶25. 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.

         ¶26. 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).

         A. Accomplice Testimony

         ¶27. 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 him.

         ¶28. 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 conviction.

         ¶29. 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.[4]

         ¶30. 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).

         B. Timber Theft

         ¶31. Next, Terrell specifically challenges the sufficiency of the evidence supporting his conviction for timber theft. Under ...

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