By Steven A. Morelli
The California attorney general has asked the state Supreme Court to review an overturned guilty verdict in the Glenn Neasham case, in which an insurance agent was convicted of felony theft for selling an annuity.
The petition says the top court should review the decision to:
-- “Ensure uniformity with the well-established meaning of the word ‘taking’ and to settle the important question whether a nonconsensual exchange of property of equivalent market value is a taking.”
--“Secure uniformity with precedence on instructional error and prejudice.”
An appellate court threw out the theft conviction on Oct. 8, saying that the prosecutor had not proven that Neasham knew his client had dementia or if he knew why that would even be considered theft because the client did not lose money. The judge who wrote the opinion for the three-justice court had apparently been baffled by the prosecutor’s definition of theft.
“Under the prosecution’s theory of this case, merely cashing a check for a person known to suffer from dementia would support a larceny conviction,” Associate Justice Stuart Pollak wrote in the ruling.
Neasham sold an indexed annuity in 2008 to an 83-year-old client who was later said to have suffered from dementia. Neasham and his assistants have testified that they did not see any evidence of cognitive issues. The client was paid back the principal and interest after Neasham was convicted of felony theft from an elder in 2011.
The appeals court said because Neasham never possessed the client’s money (the check was written to the insurance company) and the client was given something of at least equal value, that a “taking” did not occur.
The attorney general’s petition says the appellate justices’ decision was a “a major departure from the long-established principle … the theft is a crime against a right to specific property and a ‘taking’ requires only the slightest movement of the property and is not negate by the absence of conversion or by restoration.”
The court should decide if any “nonconsensual” exchange should not be considered theft if it was for something of comparable market value, according to the petition.
The petition also asks the court to consider if “omission of an essential element of the offense” in jury instructions constitutes an “error of constitutional significance.” The trial judge had instructed the jury to consider, “When the defendant took the property he intended to deprive the owner of it permanently or removed it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.” The error was that the word “removed” should have been “to remove.”
“The Court of Appeal did not consider the explicit clarification in the prosecution’s closing arguments, choosing to automatically find constitutional error upon finding that the trial court changed a verb conjugation,” the petition said. “The Court of Appeal impermissibly created a new rule that a failure to include an element in an instruction defining a crime automatically constitutes constitutional error.”
Neasham lost his insurance business and license after his conviction. He is attempting to get his license back while he, his wife and four children subsist on public assistance in housing rented from his in-laws.
Neasham’s attorney, Joseph Axelrad, and the petitioning prosecutor, Deputy Attorney General Hanna Chung, did not return calls for comment.
Steven A. Morelli is editor-in-chief for InsuranceNewsNet. He has more than 25 years of experience as a reporter and editor for newspapers, magazines and insurance periodicals. He was also vice president of communications for an insurance agents’ association. Steve can be reached at [email protected].