Appealed from the Fourth Judicial District Court for the
Parish of Morehouse, Louisiana Trial Court No. 2015-521F
Honorable C. Wendell Manning, Judge
LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel
D. McHENRY Pro Se
S. “STEVE” TEW District Attorney JOHN GATES
SPIRES Assistant District Attorney Counsel for Appellee
PITMAN, McCALLUM, and THOMPSON, JJ.
Kevin McHenry was convicted of cruelty to a juvenile and
sentenced to ten years at hard labor. He appeals his
conviction and sentence. Defendant's appellate counsel
has filed a motion to withdraw, along with a brief pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967), alleging that there are no
nonfrivolous issues upon which to base the appeal. For the
following reasons, we affirm Defendant's conviction and
sentence and grant appellate counsel's motion to
was charged with second degree cruelty to a juvenile, J.D.,
born July 19, 2006, in violation of La. R.S. 14:93.2.3. On
March 6, 2017, he waived his right to a jury trial.
bench trial held June 22, 2017, J.D. testified that on August
9, 2015, he was staying with his father and grandmother in
Bastrop when Defendant came to their house. He stated that
Defendant became angry with him after his younger sister,
V.D., accused him of doing "negative stuff" where
they "were touching on each other." He testified
that Defendant put his hand on his throat and slammed him
into a wall and then Defendant "stomped" him in the
stomach and chest and hit him in the head with his fist. He
further testified that he recalled telling a police officer
who came to the house what had happened. He was taken to the
hospital, and his head injuries were treated with stitches.
He stated that his dad, Veneric McHenry
("Veneric"), punished him for the incident with his
sister by "whooping" him on the butt.
time of the offense, Officer Colby Ainsworth worked at the
Bastrop Police Department. He testified that he responded to a 911
call regarding the disturbance at issue in this trial.
Veneric was upset and emotional and informed him that
Defendant had beaten and kicked his child. Neither Defendant
nor J.D. was at the scene when he arrived, but J.D. was
returned to the scene by a man named Chris McHenry. He
further testified that he saw bleeding from a laceration on
J.D.'s head and lip. He also saw that J.D. had dried
blood on his face, neck and shirt and had urinated on
himself. J.D. was crying profusely and repeatedly told him
that Defendant had beaten him up by hitting and kicking him.
Ainsworth further testified that he accompanied J.D. to the
hospital and photographed his injuries. He stated that J.D.
reiterated that Defendant had thrown him against a wall,
kicked him, punched him with a closed fist, chased him
outside, and kicked him again and struck him in the head. He
identified the photographs he took at the hospital. He
testified that Defendant voluntarily appeared at the police
station and signed a waiver of rights before giving a
statement. He stated that Defendant admitted that he was very
angry with J.D. and wanted to kill him and that he also
grabbed J.D.'s shirt and yelled and cursed at him.
However, Defendant insisted that it was Veneric who had
testified that just two weeks prior to the incident he had
been released from jail after being held for over three years
on a charge of attempted murder. He stated that that charge
had been dismissed and that he had no felony convictions. On
August 9, 2015, he spent the entire day with his cousin's
daughter, six-year-old V.D., so that he could reestablish his
bond with her after his long incarceration, and he allowed
her brother, J.D., to tag along.
further testified that he became very angry after V.D. told
him that J.D. tried to get her to engage in sexual activity.
He stated that he wanted to "whoop" J.D., but
decided that he should not touch him since he had just been
released from jail. He ordered V.D. to go inside and tell her
father what had happened. When he ordered J.D. to go inside,
J.D. refused, so he grabbed his arm and made him go inside.
He testified that after V.D. told her father what had
happened, Veneric slapped J.D. across the head three times
and then called the children's mother on the phone. After
the phone call, Veneric accused V.D. of lying and said she
would get "a whooping." Defendant testified that he
was trying to console V.D. when he saw J.D. running from the
house. He stated that he saw J.D.'s "leg wobble like
a noodle" and then the child fell face-first. J.D. then
got up and began running down the road near the ditch where
he fell face first on the road. He stated that J.D. "lay
on the ground holding his head and crying and going crazy
bucking like a horse." He went inside to collect his
things, having promised V.D. that she could spend the night
with him. However, when he returned, his brother and sister
had arrived and locked V.D. in the car with J.D. His ...