ESCANABA - A former Escanaba couple, accused of taking the kitchen from their foreclosed home last year, were bound over from Delta County District Court to circuit court following a preliminary hearing Thursday.
Sandra Kay Smith, 46, and her husband, Donald George Smith, 47, of Round Lake, Ill., are each charged with embezzling mortgaged property valued at $1,000 to $20,000. They allegedly removed kitchen cabinets and appliances from their home after it was foreclosed last summer.
Following a six-month investigation by bank officials and Escanaba Public Safety, the husband and wife were each arrested in January for embezzlement, a five-year felony.
The Smith's appeared for a preliminary hearing in district court in April when the judge postponed making a decision and requested the defense and prosecution submit a summary of case-related facts and laws. The hearing was set to continue on May 24 but was rescheduled to Thursday.
According to testimony presented in April, the Smith home at 528 S. 9th St. in Escanaba was undergoing foreclosure last year and was sold on a sheriff sale in April 2011. Later during the summer, the Smith's allegedly removed the custom kitchen valued at more than $30,000.
During Thursday's continuation hearing, the prosecution called an additional witness to the stand. The witness, who was an employee with a local granite company, testified Sandra Smith had inquired about how to go about removing marble countertop last year. The witness also said Sandra Smith joked about removing cabinets that were screwed to the wall.
Assistant Prosecutor Jim Soderberg told the court that the Smith's never had permission to remove the kitchen cabinets even though they were secured by screws.
"The kitchen cabinets are something that are inherently sold along with the house," Soderberg said. "These are fixtures that are part of the house and intended to be permanent."
Defense Attorney Derek Swajanen said there are "no hard and fast rules" involving fixtures.
"There was no probable cause when the kitchen was removed," Swajanen added. "The kitchen was removable and not part of the real estate."
Judge Glenn Pearson concluded the cabinets and marble countertops are fixtures of the home. He also clarified the kitchen was custom made by a cabinet maker from Wisconsin who presented testimony in April.
"There should be less emphasis on how the cabinets were attached and more emphasis on the nature of the cabinets being custom made," Pearson said.
"The court finds the custom kitchen was intended to be and become identifiable with the home as part of the security for the mortgage," he said.
The judge ruled to bind over Donald Smith based on his admission to an officer that he had removed and sold cabinets. Sandra Smith was bound over based on her inquiry about removing the countertops, said Pearson, adding she also shared an obligation in the mortgage.
"There is probable cause to believe she participated or allowed the removal of the kitchen," Pearson said, admitting evidence against Sandra Smith was not solid.
"Without a doubt, there is minimal direct evidence with respect to Sandra Smith," the judge said.
The couple remains free on bond. Following their arrests in January, Sandra and Donald Smith each posted a $2,500 cash bond and were allowed to return to their home in Illinois.
During Thursday's court hearing, the judge reduced Sandra Smith's bond to a personal recognizance bond which requires no fee. Donald Smith's bond was reduced to 10 percent or $250. The differences will be refunded to the person who paid the Smiths' bonds, explained the judge.
In addition to the maximum penalty of five years in prison, the embezzlement charge carries a maximum sentencing of five years in prison and a $10,000 fine or three times the amount embezzled, whichever is greater.
Now that the case has been bound over to circuit court, the Smiths will either each make a plea or go to trial.
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Jenny Lancour, (906) 786-2021, ext. 143, firstname.lastname@example.org