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State v. McHenry

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

STATE OF LOUISIANA Appellee
v.
KEVIN D. McHENRY Appellant

          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 for Appellant

          KEVIN D. McHENRY Pro Se

          ROBERT S. “STEVE” TEW District Attorney JOHN GATES SPIRES Assistant District Attorney Counsel for Appellee

          Before PITMAN, McCALLUM, and THOMPSON, JJ.

          PITMAN, J.

         Defendant 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 withdraw.

         FACTS

         Defendant 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.

         At the 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.

         At the time of the offense, Officer Colby Ainsworth worked at the Bastrop Police Department.[1] 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.

         Ofc. 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 struck J.D.

         Defendant 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.

         Defendant 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 ...


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