Terry Brandt, the chief financial officer for Cascades Community Credit Union, was charged with two counts of felony embezzlement. According to trial testimony, Brandt was in charge of keeping track of the books and investments. The credit union’s chief executive officer discovered several unauthorized wire transfers to day-trading accounts in Brandt’s name. When confronted, Brandt acknowledged that he had transferred the money to his accounts. He explained that he had a “gambling addiction” when it came to playing options in the stock market. It was ultimately determined that Brandt had stolen about $340,000.
Brandt was charged with embezzlement of more than $100,000 by an agent of the victim, and embezzlement from a financial institution. A jury found Brandt guilty of both charges. At sentencing, defense counsel raised several objections, including one to the scoring of Offense Variable 10, MCL 777.40(3)(c) and (d) (exploitation of a vulnerable victim). With regard to OV 10, the trial court found that Brandt’s fiduciary relationship placed him in a position of trust, and that the variable was properly scored. The trial court imposed consecutive sentences. First, Brandt was to spend 180 days in jail for embezzlement from a financial institution (waived on payment of $5,000 to cover the credit union’s insurance deductible), and then he would transfer to a prison term of five to 20 years for embezzlement over $100,000.
Brandt appealed by right. In an unpublished per curiam opinion, the Court of Appeals affirmed Brandt’s convictions, but remanded the case to the trial court for resentencing. The Court of Appeals held that OV 10 should not have been scored because Brandt did not “abuse his authority status” to exploit the credit union. The prosecutor appeals.