Among lawyers, there’s an axiom that goes something like, “When the law is against you, argue the facts. When the facts are against you, argue the law. If both the law and the facts are against you, attack the other side.” Taking the third tack, a Tennessee lawyer tried and failed to overturn his client’s conviction on a theft charge stemming from the sale of used equipment to a scrap metal recycler.

Terry Robinson worked for Foam Fabricators as a temporary employee in September and October 2008 and was later indicted on a charge of theft of property after selling several of his employer’s tools to SMC Recycling, a scrap metal dealer.

At trial, Foam Fabricator’s operations manager, Robert Sharra, testified that the company would scrap tools that were no longer needed to fill customer orders. Sharra testified that only he was authorized to take discarded tools to a recycling center, that he never asked other employees to do so, and that he dealt exclusively with nearby businesses and never with faraway SMC. Whatever money the company got from recycling was deposited into an employee bonus fund.

When, in September 2008, Sharra found a tool gone, he conducted an inventory that turned up 14 missing tools. Based on their last use, he pinpointed their disappearance sometime between August and November. These tools were heavy-duty items that retained their value, and he calculated their replacement cost at about $160,000. Carrying photos of similar tools, he visited several recycling firms and discovered that the items had been scrapped at SMC.

Kevin Roberts, an SMC employee, testified that Robinson came to SMC about seven times between September and November 2008 to sell scrap metal. Once or twice Robinson came alone, and five times he came with Eldon Rogers. Roberts provided SMC receipts showing payments to Robinson — one of them for a 591-pound piece of equipment. Checks were sometimes made payable to Robinson, sometimes to Rogers.

Rogers, a co-defendant and former Foam Fabricators employee, eventually pled guilty to stealing items from Foam Fabricators and was sentenced to 12 years of probation. He testified that his guilty plea was an admission that he had taken items from the company’s recycling dumpster without permission and sold them at SMC. Rogers said that Robinson, who accompanied him, knew that the goods were stolen and shared the proceeds.

After a Madison County circuit court jury convicted Robinson of felony theft, the trial judge sentenced him to 10 years in prison.

On appeal, his attorney argued that the prosecutor was guilty of misconduct in his closing argument and that the evidence was insufficient for a conviction.

Near the end of his rebuttal, the prosecutor had said, “Foam Fabricators is out $159,000 because of what these two did. One has accepted responsibility, and the other has left it to you to say that he’s guilty. He won’t admit it on his own even though the evidence against him is overwhelming.”

Affirming the conviction, the appeals court found that the prosecutor’s remarks contained no mischaracterization of the evidence and generally no reference to any matters outside what a jury may properly consider. “Proof of the defendant’s guilt was rather strong,” the court concluded. “[A]ny error in the prosecutor’s argument did not affect the jury’s verdict.”

[State v. Terry Robinson, W2010-00145-CCA-R3-CD, Tenn.Crim.App., March 16, 2011]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].