[¶ 1] Peter C. DeGennaro appeals from a judgment of conviction entered by the Superior Court (Cumberland County, Wheeler, J.) following a jury-waived trial at which it found DeGennaro guilty on an indictment charging him with theft by unauthorized taking or transfer (Class B), 17-A M.R.S. § 353(1)(B)(1) (2011).
I. FACTS
[¶ 2] When a criminal defendant challenges the sufficiency of the evidence, we view the evidence and inferences that may be drawn from it in the light most favorable to the trial court’s judgment to determine whether the court rationally could find each elemеnt of the offense beyond a reasonable doubt. State v. McLaughlin,
[¶ 3] In October 2007, Robert and Cynthia Bettencourt decided to build a garage including a home office next to their home in South Portland. About a week after the project was approved by the planning board they received a call from Peter De-Gennaro, who congratulated them on receiving approval and indicated that because his proposal to the board had not been approved, he was available to work on their garage. DeGennaro, who operat
[¶ 4] The parties reached an agreement and signed a contract on November 10, 2007, calling for DeGennaro to build the garage and office for $40,900. The Bettencourts were to pay for the project in seven installments, the first due at signing and the remaining payments due as specified milestоnes were reached. Construction was to be completed on or about February 24, 2008. As to any subcontractors DeGennaro elected to employ, the contract called for him to “fully pay said subcontractor^] and in all instances remain responsible for the proper completion of this contract,” and specified that he “shall be responsible for making all and full payments to any and all Subcontractors, engaged by the Contractor, in a timely manner agreed between them.”
[¶ 5] On November 28, the Betten-courts agreed to a “change order” adding a bathroom to the project for an аdditional $7900. They wrote two checks to Caldi Builders in the course of their dealings with DeGennaro, one on November 11 for $6500, representing the first payment due upon signing the contract, and the second on November 28 for $18,300, representing the second and third installments due under the contract plus the amount due under the change order, for a total of $24,800.
[¶ 6] DeGennaro had three subcontractors performing excavation and concrete work on the project. In the approximately one month he acted as the general contractor, he wrote the subcontractors four checks drawn on two different аccounts: three checks totaling $3600 from Caldi Builders’ account at Saco & Biddeford Savings, and one check for $3800 from a personal account at Sovereign Bank. When one of the subcontractors called Sovereign Bank, he learned that DeGennaro’s account did not have sufficient funds to cover the $3800 check; later, after DeGennaro was fired from the project, the check was deposited and returned for insufficient funds.
[¶ 7] A subcontractor approached Robert Bettencourt to let him know that the bank would not honor the $3800 check. Bettencourt spoke to DeGennaro about the сheck three times over the next few days. The first time DeGennaro said it was just a misunderstanding; the second time he said that the subcontractors were running an embezzlement scam; and the third time he said the disputed check was not even intended for the Bettencourt project. He told Bettencourt that the subcontractors “were all crazy and they were liars.” At some point DeGennaro stopped returning Bettencourt’s calls and messages. Betten-court met with the subcontractors on December 11 concerning the problems on the project. By that time Bettencourt had informed DeGennaro that he believed De-Gеnnaro had breached the contract and that he wanted his money back. DeGen-naro accused Bettencourt of threatening him and refused to return any of the $24,800 Bettencourt had paid Caldi Builders. The court found that at that point DeGennaro retained more than $10,000 in excess of his legitimate labor and еxpenditures.
[¶ 8] Concerned with what the subcontractors told him about the effect of cold weather on the poured and exposed concrete, Bettencourt became the de facto general contractor and worked out agreements with the subcontractors to finish their portion of thе work. In connection with those agreements he wrote five checks to the subcontractors totaling $7050. Bettencourt contacted the Attorney General’s Office in an attempt to mediate the dispute with DeGennaro, and eventually reported the incident to the South Portland Police Department.
II. DISCUSSION
[¶ 10] DeGennaro contends that the evidence was insufficient to sustain the court’s verdict as a matter of law because the $24,800 the Bettencourts paid him was his sole property once he received it, and therefore was not “the property of another”
[¶ 11] We reject DeGennaro’s argument because, on the facts of this case, it focuses on the wrong moment in time, and ignores the triаl court’s critical factual findings that DeGennaro “never intended to make good on the $3800 check,” and “never intended to complete the garage, home office or bathroom for the Betten-courts even though the Bettencourts paid him $24,800 towards the job.” As with the court’s other factual findings, we review the findings regarding DеGennaro’s intent for clear error and, in light of this record, find none. See Schmidt,
[¶ 12] Pursuant to the consolidation section of Title 17-A, chapter 15, “An accusation of theft may be proved by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the ... indictment....” 17-A M.R.S. § 351. Thus, the charge in the indictment that DeGennaro committed theft by unauthorized taking in violation of section 353 was also a charge that he committed “any othеr theft offense under Chapter 15 of the Criminal Code that the evidence supported.” State v. Laplante,
[¶ 13] Applying section 351 to the trial court’s factual findings in this case, we conclude that the evidence establishes beyond a rеasonable doubt that DeGennaro committed theft by deception (Class B), 17-A M.R.S. § 354(1)(B)(1).
[¶ 14] In State v. McLaughlin, we specifically did not address the question of “whether or not a рerson commits a theft by deception if that person receives an item as a result of a promise of future payment or performance of services, but, upon receipt of the item, does not plan to pay or perform.”
The entry is:
Judgment affirmed.
Notes
. Title 17-A M.R.S. § 353(1)(B)(1) (2011) provides:
1. A person is guilty of theft if:
A. The person obtains or exercises unauthorized control over the property of another with intent to deprive the other person of the property....
B. The person violаtes paragraph A and: (1) The value of the property is more than $10,000. Violation of this subpara-graph is a Class B crime[.]
. Title 17-A M.R.S. § 351 (2011) provides:
Conduct denominated theft in this chapter constitutes a single crime embracing the separate crimes such as those heretofore known as larceny, larceny by trick, larceny by bailee, embezzlement, false pretenses, extortion, blackmail, shoplifting and receiving stolen property. An accusation of theft may be proved by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint, information or indictment, subject only to the power of the court to ensure a fair trial by granting a continuance or other appropriate relief if the conduct of the defense would be prejudiced by lack of fair notice or by surprise. If the evidence is sufficient to permit a finding of guilt of theft in more than оne manner, no election among those manners is required.
.Title 17-A M.R.S. § 354(1)(B)(1) (2011) provides:
1. A person is guilty of theft if:
A. The person obtains or exercises control over property of another as a result of deception and with intent to deprive the other person of the property....
B. The person violates paragraph A and: (1) The value of the property is more than $10,000. Violation of this subpara-graph is a Class B crime[.]
. The applicable statute defines "property of another” as
property in which any person or government other than the actor has an interest that the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property_Property in the possession of the actor may not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.
17-A M.R.S. § 352(4) (2011).
. The trial court found, and the State urges us to accept on appeal, that DeGennaro was guilty of theft by unauthorized taking or transfer, 17-A M.R.S. § 353, on the authority of State v. Schmidt,
. Although he acknowledges that it is not precisely on point, DeGennaro argues that