From an article on Producers Web: Added by Paul Wilson

The first appellate district court of California has reversed Neasham’s conviction of committing theft from an elder and dependent adult stemming from his 2008 sale of a MasterDex 10 Annuity to then 83-year-old Fran Schuber.

A document released by the court states, “Although there was conflicting evidence as to the elder’s inability to understand the nature of the transaction, there was no evidence that defendant appropriated the elder’s funds to his own use or to the benefit of anyone other than the elder herself, nor was there evidence that defendant made any misrepresentations or used any artifice in connection with the sale. Moreover, the jury was incorrectly instructed that  to convict it need find only that the purchase of the annuity deprived the elder of a major portion of the value or enjoyment of her property, eliminating the necessity of proving that defendant had any such intention. Hence, defendant’s conviction must be reversed.”

See also: California Appellate Court nixes Neasham conviction

A complaint was originally filed against Neasham on December 8, 2010, and an information filed on April 15, 2011, stating he “committed theft and embezzlement with respect to the property of an elder and dependent adult, said property having a value exceeding $950.00, and knew and reasonably should have known that said person, Fran Schuber, was an elder and dependent adult.”

The appellate court’s opinion notes that Schuber’s boyfriend, Louis Jochim, testified that Schuber “was very clear in her mind at that time,” and also cites Neasham’s former assistsant, who said Schuber “was very clear in her mind at that time.”

It then notes that the jury was instructed that in order to find Neasham guilty of violating Penal Code section 368, the prosecution needed to prove: “1. The defendant took possession of property owned by someone else; 2. The defendant  took the property without the owner’s consent; 3. 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; and 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.”

“Even assuming that Schuber was incapable of giving effective consent to the  purchase of the annuity, defendant’s acceptance of payment for the annuity cannot be considered a trespassory taking of possession of her property within the meaning of the larceny instruction,” the opinion continues.

The reversal notes that Neasham received a cashier check payable to Allianz and transmitted it directly to the insurer, which then issued the annuity policy. “He did not take her fund s or convert her property for his own use or the use of any  other person; as the amici argue, he did not deprive her of any property but instead placed her funds into an investment instrument of equal value to the monies withdrawn from her certificate of deposit.”

The policy was issued in Schuber’s name and she had 30 days after the issuance to cancel the policy and receive a full refund.

And while the prosecutor focused on the potential penalty Schuber could have suffered had she withdrawn more than 10 percent of the  policy within five years of issuance, “there was no evidence that Schuber had any intention or need to make such a withdrawal, the penalty did not apply if she became hospitalized or moved to a long-term care facility and, most importantly, there was no evidence that this standard term reduced the value of the policy to less than she paid for it.”

The prosecutor also argued that Schuber’s decision to transfer funds from a CD to the annuity was not in her best interested due to her age, but “That … is a matter of judgment over which reasonable persons can, and the witnesses did, disagree.”

In addition, the opinion found another reason the conviction could not stand. A conviction of larceny requires an intent to steal – “to deprive the owner of her property permanently.”