FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 539-122,
SECTION "G" Honorable Byron C. Williams, Judge
Cannizzaro, DISTRICT ATTORNEY OF ORLEANS PARISH Irena
Zajickova Donna Andrieu, DISTRICT ATTORNEY'S OFFICE,
ORLEANS PARISH COUNSEL FOR APPELLEE
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
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
A. BROWN JUDGE
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.
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
State proceeded to a jury trial only on the felony, simple
burglary of an inhabited dwelling. 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.
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
moved for an appeal which was granted.
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
and Brittany Vegso 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.
following pertinent testimony was elicited at trial.
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.
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.
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.
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.
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
Mayo, Defendant's best friend for over ten years,
testified that Defendant and Atticus had a special
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 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.
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."
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. 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
[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
[Ms. Vegso] "[I] never promised anything about giving
[Defendant] "Britney[sic]. I'm not going to argue
about this. I just want ...