State of Louisiana v. Kevin D. McHenry

• Court: Louisiana Court of Appeal
• Decided: November 20, 2019
• Docket: 52,993-KA
• Status: Published

Opinion

Judgment rendered November 20, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.

No. 52,993-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

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 Counsel for Appellant By: Carey J. Ellis, III

KEVIN D. McHENRY Pro Se

ROBERT S. “STEVE” TEW Counsel for Appellee District Attorney

JOHN GATES SPIRES Assistant District Attorney

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

1 At the time of the trial, Ainsworth worked at the Ouachita Parish Sheriff’s Office and is addressed as Deputy Ainsworth in the transcript. 2 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 sister accused him of hitting J.D. in the head and told him to “look

what you did.” He became very angry with his sister and cussed her because

she had accused him of “busting [J.D.’s] head.” He testified that he left

when he was not allowed to take V.D. home with him.

Defendant further testified that he turned himself in at the police

station when he found out that the police were looking for him. He stated 3 that both of the officers he spoke with, including Ofc. Ainsworth, “straight

up lied.” He admitted grabbing J.D. by the shirt, but denied pushing him

against a wall or causing his injuries.

On cross-examination, Defendant confirmed that his previously

dismissed charge had been for attempted second degree murder because he

shot at someone. He testified that he emptied one magazine and had five

bullets left in another one, but maintained that “he was in the right.”

V.D., now age 8, testified that J.D. received his injuries when “My

daddy was whooping on him and he tripped and fell on something and he

busted his head on some glass” and that J.D. was not in the street when he

got hurt, but “was in the rocks and the glass.” She stated that she did not see

Defendant hit J.D. She testified that her father spanked J.D. one time on the

butt. As she was dismissed and leaving the courtroom, she spoke to the

judge and said, “What my brother told you, he told you a lie.” The trial

court allowed additional examination, and V.D. explained that she meant

that her brother lied about what he told the police. She admitted, however,

that she was not there when J.D. talked to the police and that she had gotten

the information from someone else.

The trial court articulated reasons for judgment and noted that it had

to weigh the witnesses’ credibility due to the conflicting testimony, and it

found J.D.’s unequivocal and articulate testimony to be very credible. It also

noted Ofc. Ainsworth’s testimony concerning Defendant’s extreme anger

during the investigation. It did not find Defendant’s testimony to be credible

and noted inconsistencies in his narrative. It concluded that the victim’s

sister, V.D., appeared to have been coached in her testimony and did not find

it to be credible. 4 The trial court further found that the state proved the required

elements for a conviction of the responsive verdict of cruelty to a juvenile, in

violation of La. R.S. 14:93, and found Defendant guilty. A presentence

investigation (“PSI”) report was ordered. Defendant incurred new felony

charges regarding unrelated incidents, and a sanity commission was ordered

prior to sentencing. Sentencing was delayed several times.

On March 8, 2018, after reviewing the sanity commission report, the

trial court concluded that Defendant was competent to proceed and the

sentencing hearing was held. It reviewed the offense for which Defendant

was convicted and the sentencing range, stating that his juvenile and adult

criminal histories had been reviewed. The instant conviction was

Defendant’s first felony conviction, but the record showed he had a history

of violent crimes in which many of the charges had been dismissed or the

sentences were suspended. It noted a separate pending charge from May 1,

2012, of cruelty to a juvenile, for striking a 15-year-old in the face with a

closed fist. That charge was apparently going to be dismissed after

Defendant’s sentencing in this case.

The trial court also noted that while incarcerated and awaiting trial on

the instant charge, Defendant incurred two additional charges for fights at

the parish jail. On October 28, 2015, he allegedly committed second degree

battery of another inmate. On January 26, 2017, he allegedly committed

second degree battery on a different inmate. Both charges were pending and

were set to be dismissed upon sentencing in the instant offense. On May 31,

2017, Defendant was found with a shank and charged with possessing

contraband in a penal institution. That charge was also set to be dismissed.

Finally, on September 15, 2017, Defendant was charged after an inmate was 5 found unconscious with head wounds and had to be transported by

ambulance to the hospital. The PSI report indicated that the investigation,

corroborated by video, revealed that when the inmate grabbed the television

remote from Defendant’s bed, Defendant began “stomping and kicking him

six or seven times after he fell to the floor.” The inmate suffered traumatic

brain injuries. Defendant has been charged with second degree battery for

that incident, which remains pending.

The trial court reviewed the facts of the underlying conviction in this

matter. It reviewed the sentencing guidelines under La. C. Cr. P. art. 894.1

and noted an undue risk that Defendant would commit another crime, that he

needed correctional treatment in a custodial environment and that any lesser

sentence would deprecate the seriousness of the offense. It also found that

Defendant manifested deliberate cruelty to his juvenile victim, who he knew

was particularly vulnerable due to his extreme youth, and that he used actual

violence in the commission of the offense. No applicable mitigating factors

were found.

The trial court reviewed Defendant’s social history and educational

history, noting that he had been suspended multiple times for fighting before

finally being expelled in the ninth grade. Defendant had a brief employment

history, had never married and had no children. He reported no alcohol or

drug abuse.

The trial court deemed Defendant one of the worst offenders, for

whom the maximum sentence was appropriate, for brutally beating a nine-

year-old child by hitting and kicking him in the face and head and then

blaming the child. It noted Defendant’s numerous violent crimes and that he

continued to accumulate charges while incarcerated and stated, “To say the 6 defendant cannot control his anger is a gross understatement.” It agreed

with the probation officer’s statement in the PSI report that Defendant seems

to resort to violence to solve any disagreements or problems, stating:

The Court agrees with the probation officer’s summation, that McHenry has wreaked havoc in Morehouse Parish for more than 12 years. He should be stopped. The Court also stresses that the defendant had already been shown a great deal of leniency by the fact that three other charges will apparently be dismissed upon sentencing in this present case.

The trial court sentenced Defendant to serve the maximum sentence of

ten years at hard labor, with credit for time served. The conviction was

designated as a crime of violence. It also ordered that a protective order

issue in favor of the child, J.D. Defendant’s motion to reconsider sentence

was denied April 9, 2018. He was advised of his right to appeal and to seek

post-conviction relief. He was granted an out-of-time appeal on

February 19, 2019.

DISCUSSION

On appeal, Defendant’s appellate counsel filed an Anders brief and a

motion to withdraw, alleging that he could find no nonfrivolous issues to

raise on appeal. See Anders v. California, supra; State v. Jyles, 96-2669 (La.

12/12/97), 704 So. 2d 241; State v. Mouton, 95-0981 (La. 4/28/95),

653 So. 2d 1176; and State v. Benjamin, 573 So. 2d 528 (La. App. 4 Cir.

1990).

Defense counsel’s brief conforms to the procedures set forth in

Anders, supra; Jyles, supra; Mouton, supra; and Benjamin, supra. It

outlines the procedural history of the case and the evidence presented at trial

and contains a reviewable assessment for both Defendant and the appellate

court of whether the appeal is even worth pursuing. Mouton, supra. It

7 contains a verification that counsel mailed copies of the appellate brief and

the motion to withdraw to Defendant.

By this court’s July 23, 2019 order, the motion to withdraw was held

in abeyance and Defendant was granted additional time to file a pro se brief;

however, no such brief was ever filed.

The state filed a brief asserting that the record supported the decision

that Defendant intentionally mistreated and caused unjustifiable pain and

suffering to the nine-year-old victim. It also contended that he was properly

sentenced to serve the maximum of ten years at hard labor.

In 2015, La. R.S. 14:93, defined cruelty to juveniles as the intentional

or criminally negligent mistreatment or neglect by anyone 17 years of age or

older of any child under the age of 17 whereby unjustifiable pain or

suffering is caused to the child. The penalty for a conviction of cruelty to

juveniles was a fine of $1,000 or imprisonment, with or without hard labor,

for not more than ten years, or both. La. R.S. 14:93(D).

The proper test for determining a claim of insufficiency of evidence in

a criminal case is whether, on the entire record, a rational trier of fact could

find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). A reviewing court

must consider whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt. Id.,

supra; State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied,

541 U.S. 905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Crossley,

48,149 (La. App. 2 Cir. 6/26/13), 117 So. 3d 585, writ denied, 13-1798 (La.

2/14/14), 132 So. 3d 410. 8 The trier of fact is charged to make a credibility determination and

may, within the bounds of rationality, accept or reject the testimony of any

witness; the reviewing court may impinge on that discretion only to the

extent necessary to guarantee the fundamental due process of law. State v.

Glover, 47,311 (La. App. 2 Cir. 10/10/12), 106 So. 3d 129, writ denied,

12-2667 (La. 5/24/13), 116 So. 3d 659. A victim’s or witness’s testimony

alone is usually sufficient to support the verdict, as appellate courts will not

second-guess the credibility determinations of the fact finder beyond the

constitutional standard of sufficiency. State v. Lensey, 50,242 (La. App.

2 Cir. 11/18/15), 182 So. 3d 1059, writ denied, 15-2344 (La. 3/14/16),

189 So. 3d 1066, citing State v. Davis, 02-1043 (La. 6/27/03), 848 So. 2d

557. Where there is conflicting testimony about factual matters, the

resolution of which depends upon a determination of the credibility of the

witnesses, the matter is one of the weight of the evidence, not its sufficiency.

Lensey, supra.

The juvenile victim, J.D., testified at trial that Defendant became

angry with him, slammed him into a wall, stomped him in the stomach and

chest and then hit him in the head with his fist. His testimony was

corroborated by Ofc. Ainsworth, who testified that during his investigation

of the 911 call, he observed J.D. and noticed bleeding from a laceration on

his head and lip, in addition to dried blood on his face, neck and shirt. He

also noted that J.D. was crying profusely and had urinated on himself. J.D.

repeatedly told him that Defendant kicked him and hit him. J.D.’s head

injuries were treated at the hospital with stitches. The trial court found their

testimony to be credible.

9 After viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime of cruelty to a juvenile proven beyond a reasonable doubt.

Jackson v. Virginia, supra. The evidence was sufficient to support the

conviction for the responsive verdict of cruelty to a juvenile.

Defendant was sentenced to the maximum of ten years at hard labor,

which was within the applicable sentencing range, and, given the facts and

circumstances in this matter, does not appear excessive. Although this was

his first felony conviction, the trial court noted that Defendant’s record

demonstrated a history of violent crimes and that he had incurred additional

charges for second degree battery for fights at the parish jail while this

matter was pending. It also noted that Defendant manifested deliberate

cruelty by brutally beating his nine-year-old victim.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant

Kevin D. McHenry are affirmed, and appellate counsel’s motion to

withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO

WITHDRAW GRANTED.