46 A.3d 1147
Me.2012Background
- Bettencourts contracted DeGennaro to build a garage and home office for $40,900, with payments in seven installments.
- DeGennaro, operating Caldi Builders, engaged subcontractors and issued checks from two accounts; one $3,800 check later bounced.
- Bettencourts paid $24,800; DeGennaro remained nominally responsible for subcontractors and project completion.
- Subsequent disputes arose over payments to subcontractors and the project’s completion, with DeGennaro retaining over $10,000.
- DeGennaro was indicted for theft by unauthorized taking or transfer; the jury-waived trial found him guilty, convicted of theft by deception under a consolidation statute, and he was sentenced to seven years with restitution.
- The court held that the evidence supported theft by deception under 17-A M.R.S. § 354(1)(B)(1) and rejected a theory of theft by unauthorized taking under § 353, applying the consolidation provision to allow proof by any theft method under Chapter 15.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports theft by deception | DeGennaro intended not to perform, thus misled Bettencourts | Payments became his sole property; no 'property of another' | Sufficient for theft by deception under § 354(1)(B)(1) |
| Whether § 351 consolidation permits proving theft in any manner | Indictment can be proven by any theft method | Only the charged method should apply | Consolidation allows proving theft by any method under Chapter 15 |
| Whether Schmidt controls this case | Schmidt misused loan funds; similar reasoning applies | Different facts; Schmidt not controlling here | Schmidt does not control; facts justify deception theory here |
Key Cases Cited
- State v. Schmidt, 957 A.2d 80 (Me. 2008) (discusses intent and deception-based theft; influences conviction)
- State v. Laplante, 534 A.2d 959 (Me. 1987) (theft proof admissible under § 351 where evidence supports theft in any manner)
- Brasslett v. Brasslett, 451 A.2d 890 (Me. 1982) (theft by deception can support conviction for theft in any manner under consolidation)
- State v. Rand, 430 A.2d 808 (Me. 1981) (consolidation principle: any theft method suffices if evidence supports)
- State v. Nelson, 714 A.2d 832 (Me. 1998) (whether defendant exercised control over 'property of another' is key)