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State v. Leeson

Court of Appeals of Louisiana, Fourth Circuit

July 17, 2019

STATE OF LOUISIANA
v.
DARYL LEESON

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 539-122, SECTION "G" Honorable Byron C. Williams, Judge

          Leon Cannizzaro, DISTRICT ATTORNEY OF ORLEANS PARISH Irena Zajickova Donna Andrieu, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH COUNSEL FOR APPELLEE

          Sherry Watters LOUISIANA APPELLATE PROJECT Autumn A. Town LAW OFFICE OF AUTUMN TOWN, LLC Graham L. Bosworth LAW OFFICE OF GRAHAM BOSWORTH, LLC COUNSEL FOR APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Joy Cossich Lobrano, Judge Paula A. Brown

          LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

          PAULA A. BROWN JUDGE

         This is a criminal appeal in which Defendant, Daryl J. Leeson, seeks review of his conviction of attempted simple burglary of an inhabited dwelling. For the reasons that follow, we vacate and set aside Defendant's conviction and sentence of attempted simple burglary of inhabited dwelling, but find the record supports that Defendant is guilty of unauthorized entry of inhabited dwelling, and remand the case to the district court for sentencing on the modified judgment.

         PROCEDURAL HISTORY

         On December 20, 2017, the State charged Defendant, in a bill of information, with a felony, simple burglary of an inhabited dwelling - a violation of La. R.S. 14:62.2, and a misdemeanor, simple criminal damage to property less than $500.00 - a violation of La. R.S. 14:56 (A)(1) and (B)(1).[1]

         The State proceeded to a jury trial only on the felony, simple burglary of an inhabited dwelling.[2] Following the one-day jury trial, on June 12, 2018, the jury returned a compromise verdict, and Defendant was found guilty of the responsive verdict, attempted simple burglary of an inhabited dwelling - a violation of La. R.S. 14:(27)62.2.

         On June 22, 2018, in open court, Defendant filed a motion for new trial alleging newly discovered evidence, or in the alternative, a motion for post-verdict judgment of acquittal. After hearing arguments, the district court denied the motions, and Defendant waived sentencing delays. As set forth in the sentencing transcript, the district court sentenced Defendant to six months in jail, suspended, and placed him on one year of active probation plus cost, in the amount of $600.00 to the "JEF Fund," $100.00 to the indigent transcript fund, and $300.00 in court costs. As a condition of probation, the district court imposed a "stay away" order.[3]

         Defendant moved for an appeal which was granted.

         ERRORS PATENT

         In accordance with La. C.Cr.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Additionally, Defendant requests an error patent review of the record. After reviewing the record, we find no errors patent.[4]

         FACTS

         Defendant and Brittany Vegso[5] became romantically involved in the Spring 2014. Defendant proposed marriage to Ms. Vegso and she refused. Ms. Vegso claimed that a few days after she refused his marriage proposal, Defendant gave her his dog, Atticus; Defendant asserted he did not relinquish ownership of Atticus. On October 16, 2017, Defendant entered Ms. Vegso's home, without permission, and obtained Atticus.

         The following pertinent testimony was elicited at trial.

         During his relationship with Ms. Vegso, in the spring of 2016, Defendant purchased a puppy, Atticus. Defendant testified that he fed, medicated and cared for the dog. Defendant recounted that when he traveled for work, others would keep the dog including Ms. Vegso.

         Defendant's relationship with Ms. Vegso was on and off, but ended in July 2016. Defendant testified that he and Ms. Vegso ran into each other at the Barkus parade in February 2017, and spent the day together. Defendant recalled that Ms. Vegso contacted him, at the end of March 2017, and asked him if she could watch Atticus for him. Trial testimony indicated Ms. Vegso owned a home in New Orleans, Louisiana.[6]

         On April 6, 2017, Defendant proposed marriage to Ms. Vegso, and she refused. Defendant testified that a few days after he proposed marriage to Ms. Vegso, he gave Atticus to Ms. Vegso for her to watch while he was traveling out of town for his job until he could move into the house he was repairing. At that time, Defendant was living in Baton Rouge, Louisiana. Defendant stated that Ms. Vegso took care of Atticus from the first weekend of April 2017 until October 16, 2017. While Atticus was staying with Ms. Vegso, Defendant estimated that he saw Atticus eight or nine times. Defendant explained that when he was able to come to New Orleans, he would get Atticus and take the dog for a walk or go to the park with him. Defendant recounted that he intended to get the dog back in July 2017, but Ms. Vegso took the dog to Pennsylvania without telling him. According to Defendant, in August 2017, he asked for Atticus back, but Ms. Vegso asked him if she could take the dog on another trip, and Defendant relinquished.

         Vanessa Leeson, Defendant's mother, testified that Defendant purchased Atticus as a puppy. Ms. Lesson stated that she looked after Atticus for months at a time when Defendant's work required him to travel. She explained that Defendant would reimburse her for Atticus' care including the dog's visits to the veterinarian for shots and heartworm medicine. Ms. Leeson recalled Defendant's proposal of marriage to Ms. Vegso, and that after the proposal, while Defendant was traveling, she cared for Atticus part of the time, and Ms. Vegso cared for the dog the rest of the time. Ms. Leeson testified she never doubted that Defendant owned Atticus.

         Michah Gill, one of Defendant's friends, testified she had no reason to believe that Defendant gave Atticus to Ms. Vegso. Ms. Gill stated that she and her children often cared for Atticus whenever Defendant's work required him to travel; she estimated she took care of Atticus once a month, ranging from three to fifteen days. When Ms. Gill cared for Atticus, Defendant supplied Atticus' food, toys, water and food bowls, and a leash. Ms. Gill recalled that she kept Atticus the last week in March 2017, and Defendant picked up Atticus from her on April 6, 2017. Ms. Gill testified she was aware Defendant proposed to Ms. Vegso the afternoon of April 6, 2017, and that Ms. Vegso had refused. Ms. Gill recounted that on the night of April 6, 2017, she saw Atticus with Defendant at Defendant's home in Baton Rouge, Louisiana. She also stated that she saw Atticus again with Defendant on April 9, 2017, and, she did not see Atticus with Defendant again until October 2017.

         Trent Mayo, Defendant's best friend for over ten years, testified that Defendant and Atticus had a special relationship.

         Ms. Vegso testified that Defendant gave her Atticus along with his crate, bed, medications, and veterinarian papers following his proposal of marriage. Ms. Vegso stated that Atticus lived with her in her home located at 2515 St. Phillip in New Orleans, Louisiana from April 2017 until October 16, 2017. Ms. Vegso had two roommates, Anna Lindenmayer[7] and Ava Rodenrice. Ms. Vegso testified that after Defendant gave her Atticus, she paid for Atticus's rabies tag and general license and registered him in Orleans Parish on May 26, 2017. During her testimony, Ms. Vegso identified several documents. One was entitled "Orleans Parish Animal License" dated May 26, 2017, which indicated Ms. Vegso was Atticus' owner. The other was a letter "To Whom It Concerns" dated May 27, 2017, from Liz Friedman, a veterinarian, explaining why Atticus was not neutered at that time; the letter referred to Ms. Vegso as the dog's owner. Ms. Vegso recalled that after Defendant gave her the dog, she had Atticus microchipped in her name in August or September 2017, but that she did not turn in the paperwork for the microchip.

         Ms. Vegso testified that she was not there when Defendant purchased Atticus, she was not listed as Atticus' owner on the bill of sale, and she had not paid for Atticus. Ms. Vegso recalled that she was making arrangements with Defendant, via text messages, to keep Atticus for Defendant in the later part of March 2017. She stated that when she kept Atticus, on previous occasions, Defendant would give her Atticus' food bowls. In addition, when Ms. Vegso was asked "[a]fter Mr. Leeson allegedly gave you Atticus[, ] would he still come to the house to see the dog," she responded, "Yes, on one or two occasions."

         Ms. Vegso said that Defendant sent her text messages demanding that she return Atticus in October 2017. Ms. Vegso refused and advised Defendant that Atticus belonged to her now. Ms. Vegso explained that, at that time, Atticus was at her home in New Orleans while she was in Florida. She told Defendant not to come to her home while she was not there.[8] On October 14, 2017, Defendant sent a text message to Ms. Vegso that he wanted to pick up the dog "tomorrow." Ms. Vegso responded: "No. [Defendant] he is my dog now. I will gladly pay you/your parents for what he cost from the breeder if you'd like." On October 15, Defendant sent a message asking if Ms. Vegso needed any work done around the house. Ms. Vegso responded, "No thank you. Please do not go to my house. Then, the following exchange occurred:

[Defendant] "Britney [sic], I'm taking my dog back."
** *
[Ms. Vegso] "1. He's my dog. . . ."
[Defendant] "No. I'm asking you to do as you promised. If I don't get him back, I will take you to court over it . . . and all the expenses I put into your house . . . . Plus I'll add in Atticus and his training."
[Ms. Vegso] "[I] never promised anything about giving Atticus back."
** *
[Defendant] "Britney[sic]. I'm not going to argue about this. I just want ...

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