PEOPLE OF MI V TERRY LEE BRANDT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 28, 2010
Plaintiff-Appellee,
v
No. 288466
Jackson Circuit Court
LC No. 08-004046-FH
TERRY LEE BRANDT,
Defendant-Appellant.
Before: Donofrio, P.J., and Meter and Murray, JJ.
PER CURIAM.
Defendant appeals by right his jury trial convictions of embezzlement of over $100,000,
MCL 750.174(7), and embezzlement from a financial institution, MCL 750.180. We affirm
defendant’s convictions, vacate the sentence imposed on the conviction of embezzlement of over
$100,000, and remand for resentencing on that conviction. This appeal has been decided without
oral argument pursuant to MCR 7.214(E).
Defendant’s convictions stem from his transfer of monies contained in the general
account of Cascades Credit Union, where he served as the Chief Financial Officer, into personal
accounts in 2007 and 2008. According to Thomas Dulzen, the credit union’s Chief Executive
Officer, in 2008 the management of Cascades Credit Union noticed problem withdrawals from
the general account. After conducting preliminary investigations into the credit union’s finances,
and finding a number of transfers into defendant’s personal accounts, Dulzen called the police
and then called defendant to meet with him, with the police present. Defendant admitted to
Dulzen that he had a long-time gambling problem related to betting on the stock market and that
he had taken the money to allow him to continue to play the stock market after he had amassed
$60,000 in personal credit card debt. As a result, between October 2006 and January 2008,
defendant transferred approximately $340,000 from the general checking account of the
Cascades Credit Union into personal accounts.1 Defendant subsequently admitted to his
wrongdoing and signed a written confession.
1
At the time of sentencing, defendant still owed $234,000 in restitution after some of the money
was recovered from his accounts and pension.
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During trial, defense counsel argued that while defendant could be properly convicted of
embezzlement from a financial institution, he could not properly be convicted of embezzlement
by an agent, because the credit union did not own the property held in the general account. He
again raises this issue on appeal and maintains that the prosecution presented insufficient
evidence to support this conviction.
We review a defendant’s allegations regarding insufficiency of the evidence de novo.
People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). We view the evidence in
the light most favorable to the prosecution to determine whether a rational trier of fact could find
that the essential elements of the crime were proven beyond a reasonable doubt. Id. Satisfactory
proof of the elements of the crime can be shown by circumstantial evidence, and the reasonable
inferences arising therefrom. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). “It
is for the trier of fact, not the appellate court, to determine what inferences fairly can be drawn
from the evidence and the weight to be accorded to those inferences.” People v Hardiman, 466
Mich 417, 428; 646 NW2d 158 (2002). All conflicts in the evidence must be resolved in favor of
the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
MCL 750.174 provides in pertinent part:
(1) A person who as the agent, servant, or employee of another person,
governmental entity within this state, or other legal entity or who as the trustee,
bailee, or custodian of the property of another person, governmental entity within
this state, or other legal entity fraudulently disposes of or converts to his or her
own use, or takes or secretes with the intent to convert to his or her own use
without the consent of his or her principal, any money or other personal property
of his or her principal that has come to that person’s possession or that is under
his or her charge or control by virtue of his or her being an agent, servant,
employee, trustee, bailee, or custodian, is guilty of embezzlement.
***
(7) If the money or personal property embezzled has a value of
$100,000.00 or more, the person is guilty of a felony punishable by imprisonment
for not more than 20 years or a fine of not more than $50,000.00 or 3 times the
value of the money or property embezzled, whichever is greater, or both
imprisonment and a fine.
In People v Lueth, 253 Mich App 670, 683; 660 NW2d 322 (2002), this Court articulated
the following elements of embezzlement by agent pursuant to the statute:
(1) the money in question must belong to the principal, (2) the defendant must
have a relationship of trust with the principal as an agent or employee, (3) the
money must come into the defendant's possession because of the relationship of
trust, (4) the defendant dishonestly disposed of or converted the money to his own
use or secreted the money, (5) the act must be without the consent of the
principal, and (6) at the time of conversion, the defendant intended to defraud or
cheat the principal.
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Defendant maintains that the members, not the credit union, owned the funds that he
appropriated and that he could not be found guilty of violating MCL 750.174 because he did not
take property belonging to his principal. Defendant is mistaken. Once deposited, the funds
became the property of the credit union. “By a general deposit the money becomes the absolute
property of the bank, received as a loan, for which the bank is indebted to the depositor for that
amount.” People v Crawford, 218 Mich 125, 136; 187 NW 522 (1922) (emphasis added). See
also People v Wadsworth, 63 Mich 500, 509; 30 NW 99 (1886) (“Deposited without [a special
agreement to keep the deposit separate, the depositor] parts with his title, and loans his money to
the bank. The bank, therefore, cannot embezzle his money, because he has none in its hands.”).2
Like a bank, when a member puts money in the credit union, it is like a loan where the member
has the right to be repaid. The property defendant embezzled, taken from the credit union’s
general fund, belonged to the credit union. We find that the prosecution presented sufficient
evidence to support defendant’s conviction for embezzlement by an agent.
Defendant next argues that the trial court misscored Offense Variable (OV) 10 (victim
exploitation) at ten points and Prior Record Variable (PRV) 2 (prior low severity felony
convictions) at five points.3 He maintains that OV 10 should be scored at zero points because the
trial court abused its discretion in finding that defendant had abused an authority status to exploit
the victim, i.e., the credit union in this case. Defendant asserts that PRV 2 should be scored at
zero because the prosecution failed to meet its burden of proving that defendant’s previous
conviction satisfied the ten-year gap requirement contained in MCL 777.50.
When scoring the guidelines, “[a] sentencing court has discretion in determining the
number of points to be scored provided that evidence of record adequately supports a particular
score.” People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). A scoring decision
“for which there is any evidence in support will be upheld.” People v Elliott, 215 Mich App 259,
260; 544 NW2d 748 (1996). We review scoring decisions to determine whether the sentencing
court properly exercised its discretion and whether the evidence adequately supported a
particular score. People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003). The
interpretation and application of the sentencing guidelines present questions of law subject to de
novo review on appeal. People v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008).
We find that the trial court erred when it scored OV 10. MCL 777.40, which governs the
scoring of OV 10, provides in pertinent part:
2
The cases defendant cites for his argument that a person merely deposits money in a bank for
safekeeping, Wadsworth and People v Nielsen, 130 Mich 670, 670-671; 90 NW 1132 (1902), do
not support his contention that an employee cannot embezzle general deposit money from a
bank. Rather, they stand for the proposition that a bank cannot embezzle money from its
depositors because once the money is deposited it becomes the property of the bank.
3
Defendant also maintains that PRV 7 should be scored at zero points because his concurrent
conviction for embezzlement by an agent should be vacated by this Court. As we have
determined that the prosecution presented sufficient evidence to support this conviction, we need
not decide defendant’s claim of error concerning the scoring of this variable.
-3-
(1) Offense variable 10 is exploitation of a vulnerable victim. Score
offense variable 10 by determining which of the following apply and by assigning
the number of points attributable to the one that has the highest number of points:
***
(b) The offender exploited a victim’s physical disability, mental disability,
youth or agedness, or a domestic relationship, or the offender abused his or her
authority status................. 10 points
***
(3) As used in this section:
***
(b) “Exploit” means to manipulate a victim for selfish or unethical
purposes.
(c) “Vulnerability” means the readily apparent susceptibility of a victim to
injury, physical restraint, persuasion, or temptation.
(d) “Abuse of authority status” means a victim was exploited out of fear or
deference to an authority figure, including, but not limited to, a parent, physician,
or teacher.
The prosecution argued that defendant abused his authority status and that, therefore, ten
points were appropriately scored. However, even to the extent that one could regard the credit
union as a “vulnerable victim,” defendant did not “abuse his authority status” as that term is
defined in the statute. Defendant did use “fear or deference to an authority figure” to exploit the
“victim” here. He simply was in a position to take the money and hide the transfers. With the
correct scoring for OV 10, defendant’s OV level changes from III to II, and the minimum
sentencing range for this class B offense changes from 36 to 60 months to 30 to 50 months.
MCL 777.63. Defendant’s minimum sentence of five years falls above this guideline range.
Therefore, we vacate the sentence imposed on defendant’s conviction of embezzlement over
$100,000, and remand for resentencing on that conviction.
Defendant also argues that the trial court erred when it scored PRV 2 because the
prosecution did not show that defendant’s prior offense occurred within ten years of the instant
offense. See MCL 777.50. Given our decision that resentencing is appropriate, we need not now
resolve this issue. On resentencing, the trial court should review this issue as necessary.
Defendant’s convictions are affirmed; the sentence imposed on defendant’s conviction of
embezzlement over $100,000 is vacated; this case is remanded for resentencing on that
conviction. We do not retain jurisdiction.
/s/ Pat M. Donofrio
/s/ Patrick M. Meter
/s/ Christopher M. Murray
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