State v. Brown

565 A.2d 1035, 132 N.H. 321, 1989 N.H. LEXIS 112
CourtSupreme Court of New Hampshire
DecidedNovember 13, 1989
DocketNo. 88-221
StatusPublished
Cited by14 cases

This text of 565 A.2d 1035 (State v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 565 A.2d 1035, 132 N.H. 321, 1989 N.H. LEXIS 112 (N.H. 1989).

Opinion

Thayer, J.

The defendant, Robert J. Brown, was indicted on three counts for being an accomplice to receiving stolen property, RSA 637:7, and was convicted on one of the counts after a jury trial in the Superior Court (Pappagianis, J.). On appeal, the defendant argues (1) that there was insufficient evidence as a matter of law for the jury to have found that the defendant was guilty on December 3, 1986; (2) that the trial court erred in denying his motion for directed verdict because there was insufficient evidence for the jury to have found that he knew or believed that the property had probably been stolen on December 3, 1986; (3) that the trial court erroneously denied his motion to set aside the verdict when neither the defendant nor the State’s expert could have ascertained, based on the evidence presented, that the property had been stolen; and (4) that the trial court erred in denying his motion for judgment notwithstanding the verdict after the jury returned inconsistent verdicts. For the reasons that follow, we affirm the conviction.

Lawrence Paro operated General Machine and Foundry in Wilton, a business which made permanent mold aluminum castings by pouring molten aluminum into molds. In the course of his business, Paro purchased different types of aluminum alloy from distributors in the form of thirty-five-pound bars, or ingots, which were stored in an underground area. Each bar was stamped with a serial number, indicating the type of alloy in that bar.

On October 27, 1986, Paro reported to the New Hampshire State Police that 4,548 pounds, in the form of 2 pallets, of Number 356 alloy aluminum worth over $3,000 was missing. On November 20, 1986, an additional 2,780 pounds of alloy worth over $2,500 was stolen, including one bundle of Number 356 and one bundle of Number 208. Then, on December 2, 1986, a third theft occurred in which 2,700 pounds of aluminum was stolen, 1,350 pounds of Number 356 and 1,400 pounds of Number 850, which together were worth over $3,000.

After the third theft was reported, the State Police began checking the various scrap metal yards in both New Hampshire and Massachusetts for the missing aluminum. On December 4, 1986, the police spoke with Robert Betty, the owner of Aleo Scrap Metal Yard in Lowell, Massachusetts. Betty indicated that the same quantity of aluminum that the police had described as stolen had recently been sold to Betty by the defendant, Robert J. Brown. Subsequently, Paro identified the aluminum in Betty’s scrap yard as the aluminum which was stolen from him.

[324]*324Betty testified that he was in the business of purchasing scrap metal, usually from sheet metal machine shops, for resale. He was acquainted with the defendant because Brown had worked for another metals company with which Betty had done business in the past. In October of 1986, Brown called Betty and offered to sell him some scrap aluminum which he represented as alloy 6061, an alluminum alloy in extrusion form. Extrusion aluminum is generally poured for a specific job, and not being readily reusable, it is usually discarded for scrap.

Betty purchased 3,054 pounds of what Brown told him was extrusion aluminum on October 23, 1986, and another 3,244 pounds of what Brown represented as extrusion aluminum on November 20, 1986. Prior to the second transaction, Betty did not have an opportunity to personally view the aluminum he had purchased from Brown. After Brown delivered the second load, however, Betty realized after looking at what he had bought that the aluminum was not 6061 extrusion, but various types of casting alloys. As Betty testified, casting alloys are usually remelted in a foundry and used as is, with the result that they are rarely discarded and sold as scrap.

On December 3, 1986, Brown drove down to Betty’s metal yard once more to sell Betty a third truckload of alleged extrusion aluminum. At this time, Betty pointed out to Brown that the aluminum bars Brown had sold to him in October and November, which had numbers stamped on them, were not extrusion, but various casting alloys. Because of the large quantities of the alloys, and the fact that casting alloys are not generally sold as scrap, Betty told Brown that “there was a distinct possibility they might be stolen.” Brown assured Betty that the aluminum had not been stolen, but told Betty that the delivery that day would be his last. After purchasing the final delivery of aluminum, which included 2,244 pounds of what he now knew to be new castings, Betty did not hear from Brown again.

The defendant’s testimony indicates that he was approached by a Mr. Dobens in October, 1986, and was asked whether Brown could help him get a good price for some aluminum Dobens wanted to sell. Brown testified that at this point he asked whether the aluminum was stolen, and was told that it was not. After receiving this assurance, Brown proceeded to help Dobens and another two men transport the materials down to Lowell in October, November, and December, to sell to Betty as scrap.

[325]*325Whether or not Brown knew that the aluminum was casting alloy, or that it was stolen, and the degree to which Brown participated in transporting the materials and sharing in the profits from the sales, are all subject to conflicting testimony. For example, Brown claimed that the first time he went to Lowell to sell Betty the aluminum, he did not assist in transporting the materials. However, one of Betty’s laborers named Banacos testified that the aluminum was unloaded from the vehicle owned and driven by Brown, a Blazer-type truck. Later, Brown claimed he never saw the third load of aluminum that he sold to Betty on December 3, 1986. However, Banacos testified that not only were the aluminum bars transported in the same Blazer-type vehicle driven by Brown, but also that Brown had helped unload the third delivery of bars.

The defendant, who had been involved in the metals business for over twenty years, testified that he was unfamiliar with different types of aluminum, and could not distinguish a casting alloy from extrusion aluminum merely by looking at it. Betty, on the other hand, testified that when he first saw the aluminum he had purchased from Brown, he knew immediately after looking at the markings that the aluminum was a casting alloy, and not 6061 extrusion aluminum. Additionally, Betty testified that Brown appeared to be experienced in metals and generally knew what was being sold.

After the New Hampshire State Police located the alloys that Paro had reported missing, Officer Forsaith questioned the defendant. Brown admitted selling the aluminum to Robert Betty, and he gave a written statement to the police describing the extent of his involvement. In his statement, Brown indicated that he had only made two trips to Betty’s scrap yard. The defendant also stated that out of the money Betty had paid for the aluminum, Brown was given only $50-$100 after the first trip down to Lowell, and nothing after the second trip. However, according to other witnesses and his own in-court testimony, Brown made three trips, not just two, to Betty’s scrap yard. Furthermore, the police later learned, after questioning Dobens, that Brown had lied when he had stated he was paid only after the first delivery was made to Lowell. In truth, as Dobens told the police and as Brown later admitted in court, the defendant was paid $50 after both the first and second loads of aluminum were delivered.

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Cite This Page — Counsel Stack

Bluebook (online)
565 A.2d 1035, 132 N.H. 321, 1989 N.H. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-nh-1989.