Robert Patrick Terrell v. State of Mississippi
237 So. 3d 717
| Miss. | 2018Background
- In 2011 Terrell conspired (through Nicholson) to have Ricardo Hawthorne record forged warranty deeds conveying John McLendon’s property to Hawthorne; Hawthorne then sold timber rights to Brushy Creek for $20,300 and Brushy Creek harvested and profited from the timber.
- A grand jury returned a 20-count indictment; at trial the State proceeded on four counts: timber theft, conspiracy to commit timber theft, false pretenses, and conspiracy to commit false pretenses.
- At trial Nicholson and Hawthorne (coconspirators) testified against Terrell; investigators and Brushy Creek representatives corroborated key facts; Hawthorne admitted forging deeds and implicated Terrell.
- The State introduced two prior civil judgments against Terrell (one default timber-cutting judgment and one summary-judgment order finding a deed forged) over Terrell’s Rule 9.04 objection; the court admitted them under M.R.E. 404(b)/403 with a limiting instruction.
- Jury convicted Terrell on all four counts; the court imposed consecutive sentences. On appeal the Court affirmed the timber-theft and false-pretenses convictions, vacated the two conspiracy sentences as duplicative, and remanded to allow the State to elect which conspiracy count to dismiss.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Terrell) | Held |
|---|---|---|---|
| Sufficiency of evidence for timber theft (asportation) | Terrell caused asportation by using forged deeds to transfer timber rights to an innocent purchaser (Brushy Creek), so removal by Brushy Creek satisfies "take, steal and carry away." | No evidence Terrell or his agents physically carried away timber; asportation element not met because Brushy Creek (an innocent purchaser) moved the timber. | Affirmed. Court adopts the innocent-purchaser/agent doctrine: asportation can be imputed to defendant who arranged the transfer to an unwitting purchaser. |
| Sufficiency of evidence for false pretenses (injury element) | Brushy Creek was injured because it did not lawfully obtain title to the timber despite paying $20,300; victimhood does not require monetary loss. | Brushy Creek suffered no monetary loss (it profited), so no detriment required by Allred. | Affirmed. Court holds the loss of lawful title suffices as injury for false pretenses. |
| Admission of civil judgments (URCCC 9.04 / M.R.E. 404(b) & 403) | Judgments were relevant to intent/knowledge/plan; trial court followed Box/Rule 9.04, provided time to review, balanced probative value against prejudice, and gave limiting instruction. | Admission was unfair surprise under Rule 9.04 and the judgments were prejudicial prior-bad-acts evidence improperly used to show propensity; should have been excluded. | Affirmed. Court finds no abuse of discretion: Box/9.04 procedure followed, Rule 404(b) purpose satisfied, Rule 403 balance proper, and limiting instruction given. |
| Double punishment for conspiracies (two conspiracy convictions) | Separate conspiracy counts (to commit timber theft and to commit false pretenses) were charged and convicted. | Only a single agreement existed with two objectives; punishing two conspiracy convictions for a single agreement violates double jeopardy. | Reversed in part. Court vacates conspiracy sentences and remands to dismiss one conspiracy count (State's election) and resentence on the remaining count. |
Key Cases Cited
- Bush v. State, 895 So.2d 836 (Miss. 2005) (standard for reviewing sufficiency of the evidence)
- Osborne v. State, 54 So.3d 841 (Miss. 2011) (limits on using uncorroborated or heavily impeached accomplice testimony)
- McAlevy v. Commonwealth, 605 S.E.2d 283 (Va. Ct. App. 2004) (innocent purchaser's removal can satisfy asportation element imputed to defendant)
- Scott v. State, 189 So. 661 (Fla. 1939) (asportation attributable when defendant "sold" property to purchaser who removed it)
- Allred v. State, 605 So.2d 758 (Miss. 1992) (elements of false pretenses, including required causal detriment to victim)
- Pollard v. State, 932 So.2d 82 (Miss. Ct. App. 2006) (admission of similar timber-related acts under Rule 404(b) and Rule 403 balancing)
- United States v. Broce, 488 U.S. 563 (U.S. 1989) (single agreement to commit several crimes constitutes one conspiracy)
- United States v. Privette, 947 F.2d 1259 (5th Cir. 1991) (remedy for duplicative conspiracy convictions: dismiss one count at State's election)