author: |,MCDONALD, J.

text:
    STATE of Louisiana v. Timothy L. BOOKER.
    No. 2002 KA 1269.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Rehearing Denied March 24, 2003.

      Walter P. Reed, Office of District Attorney, Covington, By Dorothy Pendergast, Metairie, Counsel for Plaintiff/Appellee, State of Louisiana.
    Frank Sloan, Mandeville, Counsel for Defendant/Appellant, Timothy L. Booker.
    Before: PARRO, MCDONALD, and CLAIBORNE
      , JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   |,MCDONALD, J.

The defendant, Timothy Booker, was charged by grand jury indictment with the second degree murder of Chantell Duncan, in violation of La. R.S. 14:30.1. He pled not guilty. Following a jury trial, the defendant was convicted as charged. The defendant moved for post verdict judgment of acquittal and alternatively, for a new trial. The trial court denied the motions. The defendant subsequently was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, urging eight assignments of error as follows:

1. The evidence was insufficient to support the verdict of second degree murder.
2. The trial court erred in permitting the state to circumvent the provisions of Art. 404B of the Code of Evidence by amending the indictment to include the entire life of the victim.
3. The trial court erred in permitting highly prejudicial evidence of prior abuse and neglect.
4. The trial court erred in permitting the jury to see autopsy photographs of the victim.
5. The trial court erred in overruling a defense objection to the opening statement of the prosecutor.
6. The trial court erred in charging the jury on what constitutes second degree murder resulting from cruelty to a juvenile.
7. La. R.S. 14:30.1 does not apply to this defendant for neglect of the victim.
8. The errors complained of are not harmless beyond a reasonable doubt.

For the reasons set forth below, we affirm.

J¿FACTS

Kenisha Duncan and her four-year old daughter, Chantell Duncan, lived in an old, dilapidated caretaker’s cottage with the defendant, Timothy Booker. The cottage was located adjacent to a larger home (the main house) on a piece of property on Riverside Drive in Covington. On the cold and rainy winter morning of December 18, 2000, Kenisha called 911 and requested emergency medical assistance for Chantell. St. Tammany Parish Fire District responded to the call. Upon arriving at the Riverside property, the paramedics found Chantell lying in a bed inside the main house, clad in a sleeveless top and shorts. The child had no pulse or respiration and was extremely cold to the touch. The paramedics immediately began administering cardio-pulmonary resuscitation (CPR). Chantell was subsequently transported, by ambulance, to the St. Tammany Parish Hospital where emergency room physicians continued the resuscitation efforts. The doctors also worked to raise the child’s body temperature, which was down to approximately 80 degrees. Once Chan-tell was successfully resuscitated, she was transported to Children’s Hospital in New Orleans for intensive care. Despite all efforts to save her, Chantell died several hours later. An autopsy report and death certificate listed hypothermia, battered child syndrome, and malnourishment as the causes of Chantell’s death.

ASSIGNMENT OF ERROR 1

In his first assignment of error, the defendant asserts the evidence presented at trial was insufficient to support the second-degree murder conviction. Specifically, defendant argues that the state failed to prove that he caused or contributed to the victim’s death from hypothermia.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the |4crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La.C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988).

When analyzing circumstantial evidence, La. R.S. 15:438 provides, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Shanks, 97-1885, pp. 3-4 (La.App. 1st Cir.6/29/98), 715 So.2d 157, 159.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471, 474 (La.1983); State v. Lott, 535 So.2d 963, 966 (La.App. 2nd Cir.1988).

La. R.S. 14:30.1 defines second degree murder as follows:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kñl or to inflict great bodily harm; or
(2)(b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm.

Cruelty to juveniles is defined in La. R.S. 14:93(A) as the “intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said |schild.” The term “intentional” as used in La. R.S. 14:93 refers to general criminal intent to mistreat or neglect and does not require an intent to cause the child unjustifiable pain and suffering. State v. Morrison, 582 So.2d 295, 302 (La.App. 1st Cir.1991). “Mistreatment” as used in this statute is equated with “abuse.” State v. Comeaux, 319 So.2d 897, 899 (La.1975). Criminally negligent mistreatment or neglect of the juvenile exists when, although neither specific nor general intent is present, there is such disregard of the interest of the juvenile that the defendant’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances. State v. Morrison, supra at 302; La. R.S. 14:12.

Thus, in order to convict the defendant of second degree murder where the killing occurred during the perpetration of cruelty to a juvenile, the state was required to prove either that (1) the defendant intentionally abused or neglected Chantell, resulting in the infliction of unjustifiable pain or suffering, and ultimately, death; or (2) that the defendant’s abuse or neglect of Chantell was criminal negligence that caused the infliction of unjustifiable pain or suffering, and finally, her death. La. R.S. 14:30.1(A)(2)(b).

In this case, the state presented testimony of Dr. Scott Benton, the medical director of the Children at Risk Evaluation Center at Children’s Hospital. Dr. Benton testified that on December 18, 2000, Chan-tell arrived at Children’s Hospital in critical condition. She was in a comatose state, had significant blood loss, the acidity of her blood was dangerously high, and her core body temperature was very low (approximately 84 degrees). Dr. Benton noted that because her systems were not functioning properly, Chantell had a significant amount of swelling in her abdomen, legs, feet, hands and face. Dr. Benton also noted that the child had poor hygiene. She was very dirty, had foreign matter in her hair, and reeked of a foul body odor. Dr. Benton testified that Chantell also appeared significantly malnourished. He explained that there was no fat beneath her skin surfaces and her height and weight were well below the 5th percentile on a growth chart for a child of her age.

IfiDr. Benton also noted numerous visible injuries to Chantell’s body, which he opined could have only resulted from abuse. Dr. Benton testified that Chantell had extensive bruising and scarring on her face, trunk, abdomen, arms, wrists, and legs. ■ She had numerous looped or semicircle type scars over her entire body. Some of the scars were fresh, some were healing and some had already healed. Dr. Benton testified that, in his medical opinion, these looped or semicircle type scars are typically the result of the child being hit on the skin with an extension cord or similar object.

Dr. Benton also noted ligatured or encircling cuts around Chantell’s wrists. He testified that ligature markings on the wrists usually occur when something used to abusively restrain the arm cuts into the skin. Dr. Benton opined that these ligature markings were recent injuries because there was fresh blood dried over them. Evidence of older ligature scarring was also present on the child’s wrists and ankles.

Dr. Benton further testified that x-rays revealed several fractures in Chantell’s hand and foot. From the x-rays, Dr. Benton also noted a twisting or grabbing-type injury to Chantell’s right arm. Dr. Benton explained that this type of injury occurs when the layer of muscle covering the bone is painfully stripped away. According to Dr. Benton, “the only thing that causes this particular pattern of injury is a grip around the muscle where there’s shear forces going around the bone.”

Dr. Benton testified that most of the injuries found on Chantell’s body were intentionally inflicted, abusive injuries. Dr. Benton further testified that Chantell’s condition, particularly the fresh lesions on her body, clearly indicated that the child had suffered a great deal of pain prior to her death.

Lieutenant Jimmy Richard of the St. Tammany Parish Sheriffs Office testified that he observed the victim’s physical condition at St. Tammany Parish Hospital. Lieutenant Richard testified that the child had marks around her wrists, loop-type scars and sores over her entire body, and a contusion on her forehead. Lieutenant Richard further testified that although it was freezing outside that morning, Chan-tell wore only a sleeveless shirt and shorts.

LAfter observing Chantell’s physical condition and speaking with Kenisha Duncan, Lieutenant Richard secured search warrants and returned to the Riverside Drive property to investigate. Although the child was originally found inside the main house, Lieutenant Richard subsequently learned that the child actually became ill in the small cottage. In searching the cottage, Lieutenant Richard observed numerous small plasticAvire ties on the floor. He testified that although many of the ties had been cut, they remained in a small semicircular shape.

Lieutenant Richard also testified regarding the deplorable condition of the house. He stated that the entire house was covered in dishes, pots, rusted cans, and other trash. There was a large hole in the ceiling of one of the bedrooms that extended through the roof, allowing cold air, rain and other debris to enter the house. There was no evidence that anyone slept in that room. A door inside the room led to the bathroom. There was also another door, on the other side of the bathroom, which led to another bedroom. Lieutenant Richard noted that the door between the room with the hole in the ceiling and the bathroom was broken and could not close completely. The door of the other room had a lock on the bedroom side, which could be used to lock the bathroom from the outside.

Lieutenant Richard testified that there was a musky odor and dampness throughout the house. The dampness trapped inside the house made it feel colder inside than it was outside. He stated that throughout the investigation he would walk outside at times “to warm up.” Lieutenant Richard additionally testified that a report from the National Weather Service indicated that the outside temperature on the night before the child’s death dropped to at least 29 degrees.

Detectives Jobeth Rickels and Earl Clark, of the St. Tammany Parish Sheriffs Office, Juvenile Division, also testified at the trial. Detective Rickels indicated that upon learning of the child’s physical condition at the hospital, she and Detective Clark went to the Riverside property to speak with the defendant. Detective Rick-els testified |Rthat in response to questioning, the defendant indicated Chantell and Kenisha had spent the night in the main house, while he spent the night out with friends. Detective Rickels testified that the defendant told her that Kenisha and Chantell lived with him, but they usually stayed at the big house. The defendant stated that when he returned home (to the main house) that morning, he went to check on Chantell because he heard her hollering. According to the defendant, when he found Chantell and observed her condition, he instructed Kenisha to call for help. The defendant stated that he administered CPR until the medical personnel arrived. Upon the defendant’s request, Detective Rickels recorded the defendant’s statement in written form. She then read the statement back to the defendant and he signed it. This written statement was introduced into evidence at trial. (State’s Exhibit # 56).

Detective Clark testified that he also questioned the defendant in conjunction with the investigation of this matter. Detective Clark testified that in response to questioning, the defendant admitted that he had, on occasion, restrained and physically disciplined Chantell. The defendant told Detective Clark that he had also used corporal punishment to discipline Chantell. The defendant stated that he had hit Chantell with a yardstick, a bamboo switch and sometimes a belt. The defendant told Det. Clark that he had physically disciplined Chantell three or four days prior to her death, when she was caught drinking water from the toilet. The defendant explained that the child drank from the toilet because she was not allowed in the kitchen. The defendant also admitted that he had, on occasion, held Chantell by her left upper arm while whipping her. Det. Clark testified that the defendant also stated that he sometimes used plastic/wire twist ties to restrain Chantell. According to Detective Clark, the defendant explained that when he restrained Chantell he used three twist ties, one on each of her wrists and one to connect the two wrists together.

The state also presented medical testimony from Dr. Michael DeFatta, Chief Deputy Coroner for St. Tammany Parish. Dr. DeFatta performed an autopsy on Chantell’s body on December 19, 2000. Dr. DeFatta testified that at the time of the autopsy, the four-year-old child weighed roughly 25 pounds and was thirty-five inches in height. For a child her age, Chantell’s height and weight were well below the 5th |9percentile on a growth chart. Dr. DeFatta testified that this indicated significant growth stunting and malnourishment. As further evidence of malnourishment, Dr. DeFatta testified that upon internal examination, he noticed that Chantell had minimum fat in the abdominal area, which indicates “a very low nutrition state or malnourished state.”

Like Dr. Benton, Dr. DeFatta also testified regarding Chantell’s physical condition at the time of death. Dr. DeFatta testified that Chantell had numerous abrasions, lacerations, bruises, and scars over her entire body. These injuries were noted as being in various stages of healing, some were recent and some old. In some areas of Chantell’s body there was evidence of recent injuries on top of older healed injuries. Dr. DeFatta also observed the ligature marks around Chan-tell’s wrists and ankles, which, he opined, suggested that the child had been bound. Dr. DeFatta further testified that the position of bruising on the lateral portion of Chantell’s body indicates that her arms were likely held back over her head or held back during some of the beatings. Scratches near the ligature marks on Chantell’s wrist indicate that the child struggled to free herself from the bindings. Chantell also had areas of recent bruising to her forehead. A reflection of Chantell’s scalp revealed recent head trauma. There was extensive hemorrhaging beneath the scalp surface covering the right side of Chantell’s head. This type of injury is consistent with multiple blunt traumas over the entire right side of her head. Dr. DeFatta also testified that this type of hemorrhaging could possibly result from painfully pulling the hair in that area. Dr. DeFatta noted that at the time of the autopsy, a large portion of Chantell’s hair was missing from her scalp in this area. Dr. DeFatta further testified that the force from these injuries, certainly the blows, could have easily caused unconsciousness or concussion.

Dr. DeFatta defined hypothermia as the decreased core body temperature. He indicated that the medical reports indicate Chantell’s core body temperature upon initial examination on December 18, 2000, was recorded in the low 80’s. He testified over objection that in his opinion the hypothermia that caused Chantell’s death occurred for one of three reasons: she was tied up so that she could not get out of the cold, she was | inunconscious because of the blows to her head, or she was locked in the cold bathroom, otherwise she would have sought warmth. He explained that the severe physical injuries to Chantell’s body — the scars, the healing injuries, and the recent injuries — when observed together are defined as Battered Child Syndrome. Children suffering from this syndrome are typically undergoing neglect, he said, and especially in this case, obviously abuse and torture. Dr. DeFatta opined, “[t]his child certainly didn’t have a chance to survive the cold temperatures in her badly beaten and malnourished state.”

The defendant testified on his own behalf at trial. Regarding his previous statement indicating that he spent the night out with friends, the defendant admitted, under oath, that this statement was not true. He also confessed to having provided false information to the investigating detectives when he told them that Chantell and Keni-sha spent the night in the main house. The defendant testified that on the night before Chantell’s death, he was home (at the cottage), with Kenisha and Chantell. He testified that he worked outside repairing a vehicle all night. The defendant testified that at some point during the night, he entered the house and found Kenisha asleep in the living room and Chantell awake in the bedroom. He stated that heaters were on in the living room and the bathroom. The defendant testified that the next time he entered the house, at approximately 7:00 a.m., he found Chantell lying on the bedroom floor in a fetal position. He stated that the child was moaning and “wasn’t breathing real well.” The defendant testified that Chan-tell’s clothing was wet, like she had been getting water from the toilet. The defendant testified that he removed the wet clothing from the child’s body, took her into the living room, placed her in front of the heater, and began CPR.

During his testimony, the defendant admitted that he physically disciplined Chan-tell. However, he claimed to have only “spanked” her with his hand, “popped” her in her hands with a twelve-inch ruler, or “popped” her on her buttocks with a belt. The defendant denied ever telling Detective Clark that he hit Chantell with a bamboo pole. Consistent with his prior statement given to Detective Rickels, the defendant testified that the most recent episode of physical discipline was only four days prior to Chantell’s 111 death, when he hit Chantell for drinking water from the toilet. The defendant stated that Chantell sometimes drank water from the toilet because she was not allowed in the kitchen. The defendant denied ever seeing Kenisha beat Chantell with anything that would have caused the bruises and scars on the child’s body. The defendant acknowledged that he used plastic, “garbage bag tie like” objects as restraints to prevent Chantell from climbing. He stated that he placed the ties on Chantell’s wrists loosely, and only left them in place for up to 35 minutes. The defendant claimed he never left the room while Chantell was restrained. When questioned regarding the extensive bruising and scarring on Chantell’s body, the defendant testified that he never saw these injuries. He stated that because Chantell often wore his shirts, which were extremely large, he was never really able to observe the child’s body. Contrary to medical testimony indicating that Chantell was significantly malnourished, the defendant testified that he often fed, and sometimes even “overfed” Chantell, “because [he] knew she liked to eat.”

When viewing the evidence presented at trial in the light most favorable to the prosecution, we are convinced that any rational trier of fact could have concluded beyond a reasonable doubt that all of the elements of the crime of second degree murder were sufficiently proven. The evidence clearly established that Chantell was severely abused and neglected throughout her life. The four-year-old child was bound, beaten, and deprived of food. Although the immediate cause of Chantell’s death was listed as hypothermia, the secondary causes listed were Battered Child Syndrome and malnourishment. Medical testimony at trial clearly indicated that the child’s weakened physical condition, which was due to malnourishment and Battered Child Syndrome, hastened her death. The medical testimony presented at trial, particularly the testimony indicating the existence of fresh or recent abusive wounds and/or ligature markings, some of which were only hours old, reasonably supports the conclusion that Chantell was beaten severely, possibly rendered unconscious, tied up, and left in an unheated room prior to her death. Viewing all of this evidence, together with the defendant’s statements to the investigating detectives and his trial testimony, wherein he admitted that he | ^occasionally and intentionally struck Chantell with various objects, grabbed and/or held her left upper arm while striking her, and placed plastic twist-ties around her wrists to restrain her, any rational trier of fact could have concluded beyond a reasonable doubt that the defendant was engaged in cruelty to a juvenile. Moreover, based upon the defendant’s untruthfulness during the investigation of the offense, it would not have been unreasonable for the jury to find that he was not credible. From the defendant’s dishonesty when he claimed that he was not at home on the night Chantell froze to death, an inference of a “guilty mind” can be drawn. State v. Mitchell, 99-3342, pp. 10-11 (La.10/17/00), 772 So.2d 78, 85.

Considering the foregoing, we find that the evidence presented at the trial of this matter clearly supports a finding that the defendant committed cruelty to Chantell, a juvenile, which ultimately resulted in her death. This assignment of error lacks merit.

ASSIGNMENT OF ERROR 2

In his second assignment of error, the defendant contends the trial court erred in allowing the state to amend the indictment to provide that the crime occurred between “12/17/96 and 12/18/2000”. The defendant argues that by allowing this amendment, the trial court erroneously allowed the state to circumvent the notice requirements for use of other crimes evidence as set forth in La.Code Evid. art. 404(B).

The original indictment, charging the defendant with second degree murder, listed the date of the offense as December 19, 2000. Prior to trial, the state amended the indictment to reflect the dates of the alleged cruelty to a juvenile, which formed the predicate for the second degree murder indictment. The amended indictment provided that the offense occurred “between 12/17/96 and 12/18/2000,” the entire life of the victim. Following this amendment, the defendant moved to quash the indictment or to strike the amendment, arguing that such amendment was highly prejudicial and violative of the defendant’s state and federal due process rights. The trial court denied the motion to quash, finding that the state could properly amend the indictment as to the date of the offense, as this was not an essential element of the crime charged.

The actual date the offense is alleged to have occurred is not an essential element of the offense of second degree murder. La. R.S. 14:30.1. Defendant actually asserts that the “trial court erred in permitting the state to circumvent the provisions of Art. 404 B of the Code of Evidence by amending the indictment to include the entire life of the victim.” In this case the State was attempting to prove that the murder occurred when the offender was engaged in the perpetration of cruelty to a juvenile in accordance with La. R.S. 14:30.1(A)(2)(b). On September 26, 2001 the assistant district attorney wrote to defense counsel advising that the indictment was amended to include “the dates of the alleged cruelty to a juvenile which forms a predicate for the Second Degree Murder indictment.” This is not a circumvention of the Code of Evidence. While our Code of Evidence prohibits the use of evidence of other crimes or wrongful acts to prove the character of a person in order to show that he acted in conformity therewith, such evidence is admissible “when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.” La.Code Evid. art. 404(B)(1). In other words, when the evidence is relevant and probative to establish the elements of the crime charged, it is not rendered inadmissible because it also constitutes evidence of other criminal acts. The notice of use of other crimes evidence required under La. Code Evid. art. 404(B) and State v. Prieur, 277 So.2d 126 (La.1973), is not mandated when the evidence is relevant and probative to establish the elements of the crime charged. The limitations of Article 404(B)(1) on the admissibility of “other crimes, wrongs, or acts” evidence apply to exactly that — other crimes, wrongs, or acts — and not to the crime charged. State v. Duncan, 2002-0509, p. 11 (La.App. 1st Cir.9/27/02), 835 So.2d 623.

La.C.Cr.P. art. 487 allows the amendment of an indictment at any time with regard to a defect of form and provides that “before the trial begins the court may order an indictment amended with respect to a defect of substance.” Determination of whether the court erred in allowing the amendment of the indictment is made by considering whether the defendant was prejudiced. Defendant had sufficient notice of the state’s | uintention to prove cruelty to a juvenile to prepare a defense. A letter confirming the amendment of the bill of indictment was faxed to defense counsel on September, 26, 2001. Also, the state had previously given the defendant the statements and evidence that supported the amendment in discovery.

As previously noted, the second degree murder indictment in this case was based upon the killing of Chantell during the commission of cruelty to a juvenile, even though the defendant had no intent to kill or to inflict great bodily harm. Under La. R.S. 14:93, in order to prove cruelty to a juvenile, the state was required to show that the defendant intentionally or with criminal negligence abused or neglected Chantell, and caused her unjustifiable pain or suffering, and ultimately, death. Based upon the condition of the victim’s body at the time of death, Dr. DeFatta, a medical expert, concluded that the victim had been deprived of proper nourishment and battered over an extended period of time. Dr. DeFatta opined that the malnourishment and beatings led to the child’s weakened condition and made her especially susceptible to death from hypothermia. Because the prior acts of abuse were alleged to have contributed to the victim’s demise, evidence of such were relevant and material in this second degree murder prosecution.

Since the date of the offense is not an essential element of the crime, and since defendant understood or should have understood that the alleged acts of cruelty to Chantell occurred on many occasions over a prolonged period of time, the trial court did not err in allowing the state to amend the bill of indictment. We find no error in the trial court’s denial of the defendant’s motion to quash the indictment This assignment of error lacks merit.

ASSIGNMENT OF ERROR 3

In his third assignment of error the defendant contends the trial court erred in allowing evidence of prior abuse and/or neglect of the victim. Defendant urges that this evidence was highly inflammatory and any probative value of the evidence was greatly outweighed by its prejudicial effect.

11BPrior to trial, the defendant filed a motion in limine seeking to exclude, among other things, any evidence of abuse and/or neglect of the victim. He argued that such evidence was irrelevant and highly inflammatory. The trial court denied the motion. Defendant filed a supervisory writ application with this court seeking review of the trial court’s ruling on the motion in limine. In an unpublished decision, this court denied the writ application. State v. Booker, 2002-0078 (La.App. 1st Cir.1/18/02). Defendant then filed a supervisory writ application with the Supreme Court, which also was denied. State v. Booker, 2001-0237 (La.1/22/02), 806 So.2d 659.

Although a pretrial determination of the admissibility of evidence does not absolutely preclude a different decision on appeal, judicial efficiency demands that this court accord great deference to pretrial decisions unless it is apparent, in light of a subsequent trial record, that the determination was patently erroneous and produced an unjust result. State v. Johnson, 438 So.2d 1091, 1104-1105 (La.1983). State v. Humphrey, 412 So.2d 507, 523 (La.1982) (on rehearing).

By this assignment of error, defendant again seeks review of the trial court’s ruling denying his motion in limine. The assignment of error presents no new argument. The record in this case fully supports our previous decision on the issue presented in the writ application and is devoid of any additional evidence that would lead us to change the conclusion we reached therein. Accordingly, for the reasons cited in the previous assignment of error, we maintain our previous finding that the evidence of abuse and/or neglect of the victim in this case was relevant and admissible. This assignment of error is without merit.

ASSIGNMENT OF ERROR 4

In his fourth assignment of error, the defendant argues that the trial court erred in allowing the jury to view autopsy photographs of the victim. He asserts that the photographs had no probative value or relevance because the cause of death was hypothermia, which did not require a photograph to show or prove. The defendant argues that the photographs, depicting various unrelated bruises and scars, were cumulative, |1fihighly inflammatory, unduly prejudicial, and had “nothing to do with the cause of death of the child.” The defendant contends the prejudicial effect of the photographs outweighed' any marginal relevance, and thus the trial court committed reversible error in allowing the photographs to be introduced into evidence. In response, the state avers that the pictures were properly admitted, as they were necessary to illustrate the severe abuse suffered by the victim.

La.Code Evid. art. 403 provides that otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. Photographs that illustrate or shed light upon any fact or issue in the case or that are relevant to describe the person, place, or thing depicted, are generally admissible, provided their probative value outweighs any prejudicial effect. State v. Steward, 95-1693, p. 5 (La.App. 1st Cir.9/27/96), 681 So.2d 1007, 1011. The state is entitled to the moral force of its evidence, and postmortem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, as well as location and placement of wounds, and to provide positive identification of the victim. State v. Koon, 96-1208, p. 34 (La.5/20/97), 704 So.2d 756, 776, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997). The trial court’s admission of photographs will not be overturned on appeal unless the reviewing court finds that the photographs are so inflammatory as to overwhelm the jurors’ reason and lead them to convict the defendant without sufficient other evidence. State v. Berry, 95-1610, p. 16 (La. App. 1st Cir.11/8/96), 684 So.2d 439, 454, writ denied, 97-0278 (La.10/10/97), 703 So.2d 603.

The autopsy photographs in this case were introduced in connection with medical testimony regarding the cause of the victim’s death. Dr. DeFatta, the deputy coroner who performed the autopsy, stat-. ed in his autopsy report and at trial, that as a result of the Battered Child Syndrome and the malnutrition, Chantell’s immune system was very low and that she was “susceptible to things that normally any of us can fight off.” He stated 117that evidence of severe abuse and malnourishment was readily visible upon inspection of the victim. In explaining the victim’s death from hypothermia, Dr. DeFatta testified, “[t]his child certainly didn’t have a chance to survive the cold temperatures in her badly beaten and malnourished state.” Therefore, it is clear that, despite the defendant’s contentions to the contrary, the autopsy photographs depicted injuries directly related to the cause of death of the victim. Thus, the photos were highly probative to show the physical condition that contributed to the victim’s death. The photographs, showing the extensive bruises, scars, and ligature marks over the four-year old victim’s tiny body, were relevant to illustrate the “badly beaten and malnourished state” that made the victim especially susceptible to death by hypothermia. We agree with the trial court’s conclusion that the evidentiary value of the photographs outweighed any potential prejudice. The photos were properly admitted into evidence. This assigned error is without merit.

ASSIGNMENT OF ERROR 5

In his fifth assignment of error, the defendant contends the trial court erred in overruling his objection to the opening statement of the prosecutor. The portion of the opening statement of which the-defendant specifically complains is as follows: “Chantell Duncan turned four years old on December 17th of the year 2000. She did not have cake. She did not have a party.” Immediately following this statement, counsel for the defendant objected, arguing that the statement was prejudicial, irrelevant, and designed to inflame the jury. In response, the prosecutor argued that the statement contained facts that were relevant to the abuse and neglect of the victim. The trial court overruled the objection finding that it was proper to provide a factual scenario to the jury in opening.

A mistrial is warranted when certain remarks are considered so prejudicial and potentially damaging to the defendant’s rights that even a jury admonition could not provide a cure. State v. Edwards, 97-1797, p. 19 (La.7/2/99), 750 So.2d 893, 906, cert. denied, 528 U.S. 1026, 120 S.Ct. 542,145 L.Ed.2d 421 (1999). However, mistrial is a drastic remedy and warranted only when substantial prejudice will otherwise result to the ^accused to deprive him of a fair trial. State v. Anderson, 2000-1737, p. 19 (La.App. 1st Cir.3/28/01), 784 So.2d 666, 682, writ denied, 2001-1558 (La.4/19/02), 813 So.2d 421. A trial court’s ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518, p. 12 (La.1/17/01), 776 So.2d 443, 454.

We find no error in the trial court’s overruling the defendant’s objection to the statement indicating that Chantell did not have a birthday party. The statement merely provides a factual scenario, in this case, where the four year old victim died as a result of abuse and/or neglect inflicted upon her on the night of her birthday. Moreover, even if we were to find the comment erroneous, we do not find that it rose to the level of preventing a fair trial and warranting a mistrial. The trial court, while seated in the best position to evaluate the effect of the statement upon the jury, overruled defendant’s objection to the statement. As a further precaution, the trial court, in its general jury charge, instructed the jurors to refrain from rendering a decision “influenced by sympathy, passion, prejudice or public opinion.” Therefore, we are not convinced that the jury was influenced by the prosecutor’s comment or that the comment contributed to the verdict. This assignment of error lacks merit.

ASSIGNMENTS OF ERROR 6 AND 7

In these assignments of error, the defendant contends the trial court erred in instructing the jury on what constitutes second degree murder resulting from cruelty to a juvenile. He argues that because he was not the parent or legal guardian of Chantell, he was not legally responsible for the child, and thus cannot be criminally liable for neglect of the child. The defendant further argues that the trial court’s jury charge on second degree murder during the commission of cruelty to a juvenile, under La. R.S. 14:93, erroneously suggested a legal responsibility where none exists. As an alternative argument, the defendant avers that La. R.S. 14:93 is unconstitutionally vague as applied in this case because it does not give adequate notice who may be criminally charged for the neglect of the child.

La. R.S. 14:93 provides,in pertinent part, as follows:

hflA. Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age or seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.

The Reporter’s Comment to this article provides, in pertinent part:

Scope:
This section is intended to cover both the mistreatment of children and their neglect.
The section does not limit criminal responsibility to the parent or guardian, and thus anyone may commit the crime. But as the (sic) neglect it logically follows that only one with legal responsibility towards a child can be held for criminal neglect.
What constitutes a neglected child:
The present Louisiana statutes which determine the jurisdiction of the juvenile courts lay down the rules as to what constitutes a neglected child; it is intended that these same rules be used in interpreting this section. See Acts 1921 (E.S.), No. 83, § 6 (neglected child defined); Acts 1924, No. 30, § 9 (neglected child defined); Acts 1921 (E.S.), No. 126, § 3 (neglected child defined).

In response to a pretrial motion to quash, the trial court ruled on the applicability of La. R.S. 14:93. The trial court found La. R.S. 14:93 applicable to this defendant under the facts and circumstances of this case. In its reasons for judgment, the trial court noted that while the reporter’s comments to La. R.S. 14:93 suggest it is logical that one who is not legally responsible for a child should not be convicted of neglect, the comment also suggests that the laws governing the jurisdiction of the juvenile court should be consulted to determine what constitutes a neglected child. Under La. Ch.Code art. 603(14), “neglect” is the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired. La. Ch.Code art. 603(3) defines “caretaker” as any person legally obligated to provide or secure adequate care for a child, including a parent, tutor, guardian, legal custodian, foster home parent, an employee of a public or private day care center, or other person providing a residence for the child.

| ¡.pCiting State v. Morrison, 582 So.2d 295 (La.App. 1st Cir.1991) and State v. Porter, 99-1722 (La.App. 3rd Cir.5/3/00), 761 So.2d 115, the trial court found that the defendant, the grandfather of the victim with whom the victim and her mother were residing, is someone who may be found guilty under La. R.S. 14:30.1(A)(2)(b) of second degree murder during the perpetration of cruelty to a juvenile through criminal negligence. In Morrison, the trial court found that a live-in-boyfriend of the victim’s mother, intentionally or through his criminal negligence, committed cruelty to a juvenile. In Porter, the court did not explain the defendant’s relationship to the child, but did identify the mother specifically. The court stated that in order for the state to prove the defendant guilty of second degree murder it must show either (1) that the defendant intentionally mistreated or neglected the child, or (2) that the defendant was criminally negligent in his mistreatment of the child. State v. Porter, 99-1722 at p. 19, 761 So.2d at 125.

The evidence presented at trial in this case clearly proves that, with the exception of a few days, Kenisha and Chantell lived with the defendant from the time Chantell was born until the time she died. Outside of merely supplying shelter for Kenisha and Chantell, the defendant, by his own testimony, indicated that he was also responsible for disciplining and providing for the child. Under La. Ch.Code art. 603(14), the legal responsibility of providing necessary food, clothing, shelter, and care does not end with the parent. The statute also includes caretakers in its list of responsible persons. As previously noted, a caretaker is, among other persons, “any person .. .providing a residence for the child.” La. Ch.Code art. 603(3). As a person providing residence to Chantell at the time of her death and for most of her short life, the defendant clearly meets the definition of a caretaker. As a caretaker of the minor child, the defendant was, along with the child’s mother, legally obligated to supply the child with food, clothing, shelter and care. Failure to fulfill this legal responsibility could result in the defendant being charged with, and possibly convicted of, cruelty to the juvenile based upon criminal negligence. La. R.S. 14:93.

| ¡¡t Medical testimony at trial showed that Chantell’s growth was significantly stunted by starvation and malnourishment. Medical records introduced into evidence at trial reflect that at two years old, Chantell weighed 23 pounds, at three years old, 24 pounds, and at the time of her death (four years old), Chantell weighed only 25 pounds. Medical expert testimony established that at the time of her death, Chan-tell showed various signs of malnourishment including a distended abdomen and little or no body fat. Testimonial evidence at trial also established that, despite the freezing temperatures, Chantell was found clad in a sleeveless top and shorts. Thus, it is clear that while in the care of her mother and her grandfather, Chantell did not receive sufficient food, clothing or care.

For the foregoing reasons, we find no error in the trial court’s conclusion that the defendant could be considered a person legally responsible for Chantell’s health and well-being. The court properly considered the statutory definitions of “neglect” and “caretaker”, as provided in La. Ch.Code art. 603, in determining the scope of La. R.S. 14:93. Likewise, we find no error in the trial court’s instructing the jury on what constitutes second degree murder resulting from cruelty to a juvenile. These assignments of error lack merit.

ASSIGNMENT OF ERROR 8

In his final assignment of error, the defendant urges that the errors complained of in this appeal are not harmless and thus, warrant reversal of his conviction and sentence. After a thorough review of the record and consideration of all of the assigned errors, we have found no error. Absent a finding of error, there can be no prejudice to defendant. This assignment of error also lacks merit.

CONVICTION AND SENTENCE AFFIRMED.

      . The indictment also charged the victim's mother, Kenisha Duncan, with the same offense. On motion of Timothy Booker, the co-defendants were severed for purposes of trial.


source: Caselaw Access Project

author: J¿FOIL, J.

license: Public Domain

text:
    Joseph P. GARDINER v. ST. TAMMANY PARISH SHERIFF’S DEPARTMENT and Tchefuncte Club Estates, Inc.
    No. 2002 CA 0394.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Rehearing Denied April 3, 2003.
    Perry Staub, Jr., Janet McGrew, New Orleans, for Appellant Plaintiff Joseph P. Gardiner.
    Stephen Brooks, Jr., Covington, for Ap-pellees Defendants.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, Jr.

       Judge William F. Kline, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   J¿FOIL, J.

This appeal challenges the granting of a prescription exception in a workers’ compensation case. We reverse.

BACKGROUND

Joseph Gardiner filed this disputed claim for compensation in the Office of Workers’ Compensation (OWC) against the St. Tammany Parish Sheriffs Department on February 18, 2000. Mr. Gardiner claimed that on February 20, 1999, while working a security detail as a deputy sheriff for the Sheriffs Department, he slipped and fell while walking up a poorly lit walkway to a residence located in the Tchefunc-ta Club Estates, Inc., injuring his knee, back and neck as a result. Discovery requests propounded by Mr. Gardiner to the Sheriffs Department revealed that 80 years previously, the Sheriffs Department and Tchefuncta entered into a contractual agreement to provide for security at the private subdivision. Tchefuncta was billed by the Sheriffs Office for services rendered, which services included deputy pay, deputy benefits package, and vehicle purchases.

On February 22, 2000, Mr. Gardiner filed a tort suit seeking damages in the 22nd Judicial District Court against the owner of the Tchefuncta residence, Denis Bergeron, Bergeron’s insurer, Louisiana Farm Bureau Insurance Company and the Sheriffs Office. On May 18, 2000, Tche-functa was added as an additional defendant in the tort suit.

On September 29, 2000, Mr. Gardiner added Tchefuncta as a defendant in the compensation proceeding, asserting that he was either a borrowed/special employee, statutory employee or independent contractor entitled to workers’ compensation benefits from Tchefuncta.

The Sheriffs Office filed a motion for summary judgment in the OWC, asserting that it was exempt from the mandatory provisions of the workers’ compensation law. The workers’ compensation judge (WCJ) denied the motion. Tchefuncta filed a peremptory exception raising the objection of prescription, asserting that any claim for compensation benefits against it, |3filed over 19 months after the subject accident, was untimely. The WCJ referred the exception to the trial on the merits.

The Sheriffs Office filed writs with this court, challenging the WCJ’s refusal to grant the motion for summary judgment. This court reversed the judgment, holding that sheriffs deputies are excluded from workers’ compensation coverage. Gardiner v. St. Tammany Parish Sheriff’s Department, 2001 CW 0085 (La.App. 1 Cir. 5/31/01).

On the basis of this court’s ruling, Tche-functa re-urged its exception of prescription, asserting that because the Sheriffs Department had no obligation under the workers’ compensation law to Mr. Gard-iner, Tchefuncta could not be held liable in solido with the Department, and therefore, the timely filed suit against the Sheriffs Department could not serve to interrupt prescription as to Tchefuncta.

In opposition to the exception of prescription, Mr. Gardiner asserted that through discovery, it had been learned that Tchefuncta paid for his wages and benefits, either directly or through the Sheriffs Department. In his deposition, he attested that he continued to receive pay-checks from the Sheriffs Department until October of 1999. He stated that on many occasions, he was paid a salary check directly from Tchefuncta for off-duty details for hours worked beyond the regular 40-hour work week.

Mr. Gardiner introduced into the record the Sheriffs bi-weekly time sheets reflecting he was paid for hours not actually worked from March 9, 1999 through October 18, 1999. The payroll sheets contain notations that the charges were for “workman’s compensation,” “family medical leave,” and “short term disability.” Mr. Gardiner also offered a billing from the Sheriffs Department to Tchefuncta for his services from June 14 through June 28, 1999, which itemizes salary charges of 160 hours and various benefit charges.

The WCJ granted Tehefuncta’s exception of prescription and this appeal, taken by Mr. Gardiner, followed.

1 ¿PRESCRIPTION

Louisiana Revised Statute 23:1209(A) provides that when workers’ compensation payments have been made, prescription shall not run until the expiration of one year from the time the last payment is made. The documentary evidence reflects that Mr. Gardiner was paid by the Sheriffs Department through October 18, 1999. The payroll records reflect references to workers’ compensation as the source of the payments, as well as computations of the salary at 66.66%.

The evidence further revealed that the Sheriffs Department is reimbursed by Tchefuncta for. payments, made to deputies. Tchefuncta failed to demonstrate that it did not reimburse the Sheriffs Department for payments charged on behalf of Mr. Gardiner through October 18, 1999. In the absence of such evidence, we can only conclude that Tchefuncta was required to reimburse the Sheriffs Department for compensation benefits charged to Tchefuncta by the Department on behalf of Mr. Gardiner.

Based on the evidence in the record, we find that payments made to Mr. Gardiner and owed by Tchefuncta through October 18, 1999 served to interrupt prescription on Mr. Gardiner’s workers’ compensation disability claim through that date. Therefore, this compensation claim against Tche-functa, filed within one year of the date of the last payment, on September 29, 2000, was timely. Accordingly, the WCJ erred in sustaining the exception of prescription.

DECREE

Based on the foregoing, the judgment appealed from is reversed, and the matter is remanded to the Office of Workers’ Compensation for proceedings consistent with this opinion. All costs of this appeal are assessed to appellee, Tchefuncta Club Estates, Inc.

REVERSED AND REMANDED.


author: I ¡.SUSAN M. CHEHARDY, Judge. | EDWARDS, J.,

text:
    Gerryleigh K. GALEANO, v. TACO BELL CORPORATION.
    No. 02-CA-904.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2003.
    Rehearing Denied March 31, 2003.

      Philip J. Borne, H. Carter Marshall, Christovich & Kearney, L.L.P., New Orleans, LA, for Appellant, Taco Bell Corporation.
    Anthony J. Milazzo, Jr., Uddo, Milazzo, & Beatmann, Metairie, LA, For Appellee, Gerryleigh Galeano.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   I ¡.SUSAN M. CHEHARDY, Judge.

In this workers’ compensation suit, the employer appeals the judgment finding that the employee met her burden of proving a work-related accident and that the employee had not made fraudulent statements in order to obtain benefits. The employee appeals the finding that she is not entitled to compensation benefits after July 29, 2000. For the following reasons, we affirm the workers’ compensation judge’s ruling in part and reverse in part.

Facts

Gerryleigh K. Galeano (“Galeano”) was employed by Taco Bell Corporation(“Taco Bell”) as Assistant General Manager for its Manhattan Boulevard store in Harvey, Louisiana. On January 6, 2000, Galeano injured her back as she attempted to retrieve a 40-gallon box of drink syrup, which was stacked atop other large boxes.

The next day, Galeano sought medical treatment from her family physician, Dr. Dana Fouchi, who prescribed medication, instructed her not to return to work for two weeks, and encouraged her to see a “specialist.” On January 9, 2000, Galeano visited the emergency room at Kenner | ^Regional Medical Center, where she received pain medication intravenously. On January 11, 2000, she followed up with Dr. Fouchi, who again evaluated her condition and prescribed medication. On January 12, 2000, Galeano visited the emergency room at East Jefferson General Hospital complaining of lower back pain. On that day, the emergency room physician prescribed medication and recommended follow-up with an orthopedist.

Against Dr. Fouchi’s recommendation, Galeano returned to work on January 13, 2000, one week after her accident. She stopped working, however, after her third day back at work because her left leg “kept going numb.”

On January 20, 2000, Galeano sought treatment from Dr. Thomas Hawley at the Occupational Medicine Clinic at East Jefferson General Hospital. On that date, Galeano’s neurological status and lumbosa-cral x-rays were within normal limits. Dr. Hawley prescribed medication as well as physical therapy. He also recommended “light duty.” After receiving physical therapy, Galeano’s condition improved and Dr. Hawley released her to return to work on February 7, 2000.

On or about March 1, 2000, however, Dr. Hawley again restricted her to “light duty.” On March 6, 2000, Dr. Hawley declared Galeano “disabled” until she was evaluated by Dr. Gordon Nutik. Dr. Haw-ley discharged her on that date, also.

On March 8, 2000, Galeano saw Dr. Nu-tik, who recommended an MRI, further physical therapy, and did not recommend return to work on that date. On March 20, 2000, Galeano underwent an MRI of the spine. On March 28, 2000, Dr. Nutik evaluated the scans and observed a central and left-sided disc herniation at the L4-5 level. Over the next four months, Dr. Nutik recommended physical therapy and sacroiliac joint injections, which |4were both refused by Galeano. He also felt that Galeano was able to perform sedentary work for up to six hours a day but he did not recommend that she return to her managerial position at Taco Bell. Because of her ongoing lower back complaints, Dr. Nutik referred her to a neurosurgeon.

On April 28, 2000, Galeano sought treatment from Dr. Courtney Russo, an orthopedist. Dr. Russo, who remains her treating orthopedist, has not released Galeano to return to work.

On May 12, 2000, Galeano sought treatment from Dr. Lucian Miranne, a neurosurgeon, who recommended “SI joint” injections. Interestingly, on that first visit, Dr. Miranne felt that Galeano was “capable of sedentary light type work with alternating sitting/standing.”

On July 21, 2000, Dr. Russo requested another MRI of Galeano’s spine. The radiologist that read Galeano’s August 10, 2000 MRI noted that the “central disc herniation and/or disc bulge, [is] less pronounced as compared to the study performed previously on 03 March 2000.”

On July 29, 2000, at defendant’s request, an investigator for Omega Insurance Services videotaped Galeano in the park near her apartment. The videotape reflects claimant bending at the waist to retrieve items from the ground, squatting, stretching and jogging/walking for a thirty-minute period. Our review indicates that she did not exhibit discomfort while performing these tasks.

On August 30, 2000, Dr. Miranne examined Galeano’s second MRI and agreed that it showed “diminished protrusion of the L4-5 disc.” He recommended, due to claimant’s allegations of pain, epidural steroid injections. He discharged her from his care on November 20, 2000.

On March 16, 2001, Galeano submitted to an independent medical examination by neurologist, Dr. Robert Applebaum, who recommended a | Kmyelogram and CT scan of the lumbar and thoracic regions. Based on her complaints of back pain, he did not recommend return to work at that time. On June 5, 2001, Galeano consulted Dr. Antonio Prats, a neurosurgeon in Florida, who recommended repeating the lumbar spine MRI and a lumbar microdiscectomy.

On September 27, 2001, an investigator for Omega Insurance Services videotaped Galeano working in her yard in the early morning hours. The videotape shows Ga-leano, without apparent physical difficulty, removing several large bags of soil and fertilizer from her car’s trunk. She also was seen bending completely at the waist for extended periods of time while spreading the fertilizer around her yard and while applying the weed killer to areas around her yard. She also lifted at least four potted plants to waist level from the ground and carried these pots several feet before bending again to place them on the ground. Further, throughout this tape, she was squatting to ground level then standing upright without apparent difficulty-

Further, Taco Bell paid weekly indemnity benefits to Galeano from the date of her injury until June 2, 2000 and from June 16, 2000 until May 23, 2001. Finally, except for authorizing a third MRI, reimbursing her for the initial evaluation by Dr. Prats, and authorizing continuing epidural steroid injections for her, Taco Bell has paid medical expenses for Galeano since the date of her accident.

Procedural History

On June 25, 2001, Galeano filed a disputed claim for workers’ compensation alleging that Taco Bell refused to pay compensation benefits for June 3, 2000 through June 15, 2000; failed to promptly pay for treatment by its physician, Dr. Robert Ap-plebaum, prompting cancellation by Dr. Applebaum of two appointments; interfered with treatment by Dr. Miranne; hand failed to reimburse Galeano for her initial evaluation by Dr. Prats. Galeano subsequently filed two amended and supplemental disputed claims for compensation changing her choice of neurosurgeon to Dr. Prats and alleging Taco Bell’s actions were arbitrary and capricious.

Taco Bell timely filed an Answer and Supplemental Answers to these claims. Further, based on its video surveillance of Galeano, Taco Bell filed a reconventional demand on January 14, 2002, alleging that Galeano willfully made false statements and misrepresentations to obtain workers’ compensation benefits; requested a forfeiture of workers’ compensation benefits under La. R.S. 23:1208; and restitution of benefits paid.

On February 4, 2002, trial was held and the matter was taken under advisement. On March 14, 2002, the workers’ compensation judge ruled that Galeano was accidentally injured in the course and scope of her employment on January 6, 2000; that Galeano was not entitled to payment of weekly indemnity disability benefits after July 29, 2000; that Galeano was entitled to payment of all medical expenses, medication expenses and transportation expenses for said injury; and that defendant was arbitrary and capricious in its refusal to pay medical expenses. Further, defendant was assessed a penalty of $2000.00, attorney fees of $3000.00, and ordered to pay all costs.

Thereafter, Galeano filed a Motion to Supplement Judgment and Motion to issue Reasons for Judgment. On April 23, 2002, the workers’ compensation judge issued written Reasons for Judgment which stated that all medical and medication expenses herein are reasonable, necessary and compensable; defendant has been arbitrary and capricious in its refusal to pay claimant’s medical expenses, which warrants the payment of penalties |7and attorney fees; and defendant’s allegations of misrepresentations do not meet the criteria required by the La. R.S. 23:1208.

On April 12, 2002, Taco Bell suspensively appealed. On May 13, 2002, Galeano filed a devolutive appeal.

On appeal, Taco Bell assigns four errors: the workers’ compensation judge erred in failing to find that Galeano committed fraud by willfully misrepresenting her medical condition and her ability to work for the purpose of obtaining workers’ compensation benefits; the workers’ compensation judge erred in faffing to declare appellee’s entire claim for workers’ compensation benefits forfeited under La. R.S. 23:1208; the workers’ compensation judge erred in finding appellee’s indemnity benefits were terminated as of May 24, 2000, and that appellant was not entitled to a credit under La. R.S. 23:1206; and the workers’ compensation judge erred in awarding penalties and attorney fees.

On appeal, Galeano also assigns four errors: the decision by Judge Steib denying weekly indemnity disability benefits since July 29, 2000 is not supported by the law or evidence; the decision by Judge Steib refusing to award Galeano her weekly indemnity disability benefits for the period of June 3, 2000 through June 15, 2000 is not supported by the law or the evidence; the decision by Judge Steib should specifically award Galeano the medical treatment to which she is entitled, including, but not limited to, the MRI that was recommended by Dr. Russo and Dr. Prats, the epidural steroid injections recommended by Dr. Russo, and naming Dr. Prats as her neurosurgeon; and the claimant should be awarded sanctions and attorney fees for each violation by the defendant.

Analysis

| sDefendant’s Assignments of Error

Taco Bell argues, as its first and second assignments of error, that the workers’ compensation judge erred in failing to find that Galeano committed fraud by willfully misrepresenting her medical condition and her ability to work for the purpose of obtaining workers’ compensation benefits and erred in failing to declare appellee’s entire claim for workers’ compensation benefits forfeited under La. R.S. 23:1208. Defendant specifically contends that the workers’ compensation judge erred in failing to find Galeano committed fraud by willfully misrepresenting her medical condition and ability to work based on the evidence presented at trial including the surveillance videotapes and medical records for previous back injuries.

La. R.S. 23:1208 states in part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

In Parker v. ADM Milling Co., 01-649 (La.App. 5 Cir.11/27/01), 804 So.2d 120, 126, this Court stated:

The only requirements for forfeiture under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Because § 1208 is penal in nature, it must be strictly construed, both in its substantive ambit and in its penalty provisions. False statements that are inadvertent or inconsequential will not result in forfeiture.

|3Further, whether an employee has forfeited her right to workers’ compensation benefits is a factual question that should not be disturbed on appeal absent manifest error. Parker, supra.

In this case, Galeano explained her omission regarding previous injuries. She stated that she did not consider her previous accidents significant or related to the pain from her work-related injury. Further, regarding the surveillance videotapes that show Galeano moving without apparent difficulty, she explained that she did feel pain when she performed certain activities. Moreover, she also indicated that the few activities that were shown on the videotape were much less strenuous than the job duties of an assistant manager at Taco Bell. Clearly, the workers’ compensation judge concluded that Galeano’s omissions were not willful misrepresentations designed to secure workers’ compensation payments and, thus, forfeiture of benefits was not required. We find no manifest error in the workers’ compensation judge’s conclusion.

Third, Taco Bell argues that the workers’ compensation judge erred in finding appellee’s indemnity benefits were terminated as of May 24, 2000, and that appellant was not entitled to a credit under La. R.S. 23:1206. We agree. First, we note a clerical error in the written reasons for judgment. In the first paragraph, the workers’ compensation judge states correctly that the defendant paid compensation benefits to Galeano until May 24, 2001. The record supports that statement. That same document, however, also mistakenly states: “Claimant was paid weekly indemnity benefits through May 24, 2000.... ” [Emphasis added.]

In sum, Taco Bell paid benefits through May 24, 2001. The workers’ compensation judge, however, clearly ruled that Galeano was not entitled to weekly indemnity benefits after July 29, 2000. Thus, we agree that Taco |inBell is entitled to a credit under La. R.S. 23:1206 for overpayment of benefits from July 29, 2000 until May 24, 2001.

Lastly, Taco Bell argues that the workers’ compensation judge erred in awarding penalties and attorney fees. We disagree. La. R.S. 23:1201(E), which sets out the penalty provision in question, provides for a twelve percent (12%) penalty on any compensation or medical benefit that the employer/insurer fails to timely pay, unless the employee’s right to such compensation or benefit has been “reasonably controverted.” La. R.S. 23:1201.2 subjects the employer or insurer to the imposition of reasonable attorney fees when the failure to pay any worker’s compensation claim within sixty (60) days of notice is found to be arbitrary, capricious or without probable cause.

In Louisiana, an employer or insurer may avoid the imposition of penalties and attorney fees if it relies upon “competent medical advice” in the decision not to guarantee the payment of a recommended medical treatment. Landry v. Central Industries, Inc., 592 So.2d 478 (La.App. 3 Cir.1991), writ denied, 593 So.2d 381 (La.1992).

In the instant case, defendant did not show that its failure to pay weekly indemnity benefits for June 3, 2000 through June 15, 2000 and failure to reimburse claimant for Dr. Prats’ evaluation, approve the third MRI, and authorize epidural steroid injections was reasonable. Therefore, defendant was properly assessed penalties in the maximum amount allowed by statute for its arbitrary refusal to pay the indemnity benefits and medical expenses. La. R.S. 23:1201(E). Accordingly, the penalty award of $2000.00 and the attorney fee award of $3000.00 are affirmed.

In Plaintiff’s Assignments of Error

First, Galeano argues that the decision by Judge Steib denying weekly indemnity disability benefits since July 29, 2000 is not supported by the law or evidence. The inquiry is whether the workers’ compensation judge erred in concluding that Galeano did not meet her burden of proving disability beyond July 29, 2000.

It is well settled that, on appellate review of a factual determination, the reviewing court may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Also, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

The workers’ compensation judge was called upon to make credibility determinations and was influenced by certain medical findings in concluding that Galeano had suffered a work-related injury that resulted in her temporary disability from January 6, 2000 through July 29, 2000. This determination is supported by the record and we find no manifest error in that judgment.

| ^Second, Galeano argues that the decision by Judge Steib refusing to award Galeano her weekly indemnity disability benefits for the period of June 3, 2000 through June 15, 2000 is not supported by the law or the evidence. We agree. Clearly, the workers’ compensation judge ruled that Galeano was entitled to weekly indemnity benefits from the date of her accident until July 29, 2000. Thus, we conclude that Galeano is entitled to weekly indemnity benefits for June 3, 2000 through June 15, 2000.

Third, Galeano argues that the decision by Judge Steib should specifically award Galeano the medical treatment to which she is entitled, including, but not limited to, the MRI that was recommended by Dr. Russo and Dr. Prats, the epidural steroid injections recommended by Dr. Russo, and naming Dr. Prats as her neurosurgeon. The workers’ compensation judge’s Written Judgment states, “IT IS FURTHER ORDERED,[sic] that the claimant is entitled to the payment of all medical expenses, medication expenses and transportation expenses for the injury sustained on January 6, 2000.” In her findings of fact in her subsequent Written Reasons for Judgment, the workers’ compensation judge states, “Claimant is entitled to the payment of all medical bills, and medication expenses arising from the accident of January 6, 2000, in accordance with law. All medicals and medication expenses herein are reasonable, necessary, and compensable.” [Emphasis added.] We affirm the workers’ compensation judge’s award of medicals and medication expenses.

Lastly, Galeano argues that the claimant should be awarded sanctions and attorney fees for each violation by the defendant. The assessment of attorney fees by a workers’ compensation judge upon finding that the employer was arbitrary and capricious is largely a matter within the judge’s wide discretion and will not be reversed on appeal absent a showing of abuse |iaof that discretion. Reynolds v. Wal Mart Stores, Inc., 445 So.2d 490 (La.App. 2nd Cir.1984); Condoll v. Avondale Shipyards, Inc., 436 So.2d 595 (La.App. 4th Cir.1983). Here, the workers’ compensation judge assessed the maximum penalty allowed under the statute and reasonable attorney fees. We find no abuse in her vast discretion.

Conclusion

In sum, we affirm the workers’ compensation judge’s finding that Galeano was entitled to weekly indemnity benefits from January 6, 2000 until July 29, 2000. Further, we affirm the workers’ compensation judge’s finding that “all medicals and medication expenses herein are reasonable, necessary, and compensable.” We reverse the judgment to the extent that Galeano was not awarded payment of weekly indemnity benefits for June 3, 2000 through June 15, 2000.

We further find that Taco Bell is entitled to a credit under La. R.S. 23:1206 for overpayment of benefits from July 30, 2000 until May 24, 2001. We reverse the judgment to the extent that Taco Bell was not given a credit for this overpayment. The credit owed to Taco Bell should be sufficient to extinguish the debt owed by Taco Bell to Galeano for the weekly benefits it failed to pay her.

We also affirm the workers’ compensation judge’s finding that defendant was arbitrary in its refusal to pay weekly indemnity benefits from June 3, 2000 until June 15, 2000 and medical expenses. Accordingly, the penalty award of $2000.00 and the attorney fee award of $3000.00 are affirmed.

| uFinally, we affirm the workers’ compensation judge’s finding that Galeano’s omissions were not willful misrepresentations designed to secure workers’ compensation payments and, thus, forfeiture of benefits was not required. Costs of this appeal are assessed equally to both parties.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

EDWARDS, J., dissents in part.

| EDWARDS, J.,

dissents in part.

As a threshold matter, it is my opinion that this court is obliged to undertake a de novo review of this record. The trial court determined that “All medical and medication expenses herein are reasonable, necessary and compensable” (emphasis supplied). Medical expenses requested in Galeano’s claim included reimbursement of the evaluation performed by Dr. Prats in June 2001; approval of treatment recommended by Dr. Miranne; and approval for future epidural steroid injections by Dr. Russo. Records admitted without objection indicate that Galeano filled medications prescribed by Dr. Russo as late as October 2001, and consulted him in November 2001. If Galeano were eligible for benefits only until July 2000, the court erred in finding these medical expenses were necessary and compensable.

The findings of fact made by the trial court are irreconcilable. Under these circumstances, where there is manifest error of material fact made in the trial court, we are required to redetermine the facts de novo from the entire record and render a judgment on the merits. LeBlanc v. Stevenson 00-0157 (La.10/17/00), 770 So.2d 766; Hoffman v. East Jefferson General Hosp. 00-1216 (La.App. 5 cir. 12/13/00), 778 So.2d 33, citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). It further appears that in affirming the trial court’s aware of all medical expenses, the majority’s finding that Galeano was not entitled to benefits after July 2000 is problematic.

I ?,The majority concludes that the explanations made by Galeano, regarding her activities on the videotapes and her statements to her physicians, were not willful misrepresentations under La. R.S. 23:1208, and I concur with this assessment. However, I do not agree with the finding that Galeano was not entitled to benefits after July 29, 2000. The opinion states that the trial court was influenced in this determination “by certain medical findings.” Other than the diminished protrusion of Galeano’s lumbar disc, my review of the record disclosed no medical findings that support this conclusion. There is no question that the medical evidence in this case provided a definitive diagnosis of a herniated lumbar disc, and Taco Bell failed to show that this injury existed prior to the accident.

To the extent that the majority relies on the videotapes of July 29 2000 and September 27 2001, I believe such rebanee is misplaced. The tapes of Galeano shopping or doing yard work do not reveal either the level of her discomfort or whether she had taken medication. None of these activities exceeded a half hour, a period that her physicians indicated as within her ca-pabihties. Dr. Russo viewed the tapes, and although he agreed that Galeano could not bend over to the degree she exhibited in the films, he noted that she had (sometimes) bent her knees when doing so. He further indicated that Galeano still could not, in his opinion, do anything of that nature for more than one or two hours a day due to her disruptive protruding lumbar disc. He testified that it would not surprise him if one week, Galeano had restricted motion and could only bend over 50 degrees, and the next week she could bend over 90 degrees. According to her own testimony and that of the treating physicians, Galeano’s injury did not absolutely prevent her from repetitive bending, squatting, etc. Rather, as was pointed out by both Drs. Miranne and Russo, her symptoms became worse upon |3increasing these activities. As of the time of trial, neither physician felt that she could tolerate such activity for eight hours. None of the treating or examining physicians have released Galeano to return to work.

In sum, there is no basis in the record on which to deny Galeano compensation after July 29 2000. For these reasons, I respectfully dissent from the findings that Galeano was not ehgible for these benefits, and that Taco Bell is entitled to a credit for overpayment.


author: SMITH, P.J., for the Court.

text:
    Jason Ray SMITH, As Guardian and Next of Friend of April Alvarez, A Minor, and April Alvarez, individually, and the Estate of Antonio Alvarez v. John PAYNE and Massengill Trucking Service, Inc.
    No. 2000-CA-00603-SCT.
    Supreme Court of Mississippi.
    Jan. 10, 2002.
    Rehearing Denied March 20, 2003.

      Jimmy D. Shelton, Jason Lee Shelton, Tupelo, Attorneys for Appellants.
    Stuart Robinson, Jr., Charles Stephen Stack, Jr., Jackson, Attorneys for Appel-lees.
   SMITH, P.J., for the Court.

¶ 1. This case arises as a result of an automobile collision which occurred on or about May 29,1997, in Lee County, Mississippi. The plaintiffs appeal the Circuit Court of Lee County’s denial of their motion for judgment notwithstanding the verdict, or, in the alternative, motion for a new trial. The plaintiffs seek to reverse the decision of the jury and trial court, particularly as to the finding of no liability of the defendants, John Payne and Mas-sengill Trucking.

FACTS

¶ 2. On the afternoon of May 29, 1997, an automobile accident occurred on U.S. Highway 45, just outside of Tupelo, Mississippi. At the time of the accident, Doris Hood (“Hood”) was driving in a northerly direction in the inside lane of Highway 45. At the same time, John Long (“Long”), a minor, was operating a vehicle in the outermost lane. As the Long and Hood vehicles approached the Highway 78 Highway 45 alternate junction, a semi-tractor trailer owned by Massengill Trucking, Inc., (“Massengill”) and driven by John Payne (“Payne”), began to exit off Highway 78 and merge with Highway 45 traffic. As Payne entered the acceleration lane, the Long and Hood vehicles were both directly approaching from the south. Payne never left the acceleration lane prior to the accident. The posted exit speed for the entrance ramp for Highway 45 was 20 mph, and, by Payne’s own testimony, the truck was exceeding the posted speed as it charged down the entrance ramp.

¶ 3. Upon seeing the Payne vehicle coming off the ramp at a high speed, Long abruptly changed lanes to the inside lane without signaling and without looking over his shoulder to see if the lane was clear. At this point, Hood’s vehicle was approaching rapidly from the rear of the inside lane, and accordingly she was forced to apply her brakes to avoid a collision with Long’s vehicle. Hood subsequently lost control of her vehicle and crossed over the median into the southbound lanes of Highway 45. Thereafter, she struck the vehicle driven by April Alvarez on Highway 45 South.

¶ 4. As a result of the severe impact of Hood’s vehicle into Alvarez’s vehicle, Alvarez was injured and her husband, Antonio Alvarez, who was a passenger, was killed. Alvarez and Jason Ray Smith, as guardian and next friend, (hereafter collectively referred to as “Smith” or plaintiffs), initially filed suit against Doris Hood, alleging her negligence as a proximate cause of the accident. Later, Smith amended his complaint to include Long, Payne, and Mas-sengill as defendants. Hood and her husband subsequently filed a cross-complaint against Long, Payne, and Massengill.

¶ 5. Prior to trial, settlements were reached between Smith and the Hoods, Smith and Long, and the Hoods and Long. This left only Payne and Massengill as the remaining defendants. The defendants requested that the Hoods produce their settlement agreement with Long. The Hoods, however, refused, and the defendants then filed a Motion to Compel seeking to have the Hoods disclose the amount of settlement with Long and seeking copies of all settlement documentation. Specifically, the defendants wanted to study the settlement documentation to determine whether Long and the Hoods entered into what is commonly referred to as a “Mary Carter” agreement.

116. A telephonic hearing was held on this motion on Wednesday, September 15, 1999. During the hearing, the trial judge specifically asked counsel for the Hoods whether there was a “Mary Carter” agreement. With the understanding that there was no such agreement, the judge denied the defendants’ motion to compel. The judge also ruled that neither the fact of settlement nor its amount would be admissible at trial.

¶ 7. On the Saturday before trial, counsel for the Hoods unexpectedly forwarded a letter to the defendants and the trial judge at his home, indicating that there was a written agreement. After reviewing the agreement produced by the Hoods’ counsel, the trial judge reversed his telephonic ruling on the Motion to Compel. The judge stated the following about the recently-produced agreement:

After going through it [the agreement] and reading the document, it appears to the Court that part of it was that the party had settled had agreed in fact to testify as to whatever was necessary according to the agreement. And based upon what that agreement was, the Court is of the opinion that it is a Mary Carter agreement. And because of that agreement, the Court is of the opinion that the amount of the settlement and anything that’s related to that, the fact that they were going to testify, is and should be used by the defense in this case, and the Court is accordingly going to rule so.

¶ 8. Counsel for the Hoods revealed to the jury during voir dire the fact that a settlement had occurred as well as the contents of the settlement agreement, namely the amount of the settlement as well as Long’s agreement to cooperate with the Hoods and testify at trial. Also, on direct examination of Long, counsel for the Hoods asked Long whether he had agreed to cooperate with the Hoods and testify at trial. On cross-examination of Long, defense counsel asked Long whether her had reached a settlement with the Hoods and the amount of the settlement. At that time, defense counsel sought to admit the settlement agreement into evidence. Defense counsel did not ask Long about his agreement to cooperate and testify. The jury returned a verdict in favor of the Smith and Hood. They assessed percentages of fault as follows: Hood— 70%; Long — 80%; Payne — 0%. They awarded damages to Smith in the amount of $1.5 million. They awarded no damages to the Hoods. Smith’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied. Smith timely filed a notice of appeal.

¶ 9. Smith raises the following issues on appeal:

I. WHETHER THE SETTLEMENT AGREEMENT BETWEEN THE HOODS AND JOHN LONG WAS A “MARY CARTER AGREEMENT” WHICH WAS PROPERLY INTRODUCED TO THE JURY?
II. WHETHER THE INSTRUCTIONS GRANTED TO THE DEFENDANTS WERE PROPER?

ANALYSIS

I.

¶ 10. The parties on appeal spend tremendous effort arguing whether the settlement agreement entered into by the Hoods and Long was a Mary Carter agreement. Regardless of the characterization of the agreement, it is apparent that the admission into evidence of the settlement agreement raises three eviden-tiary questions before this Court: (a) Was it error to inform the jury of the fact that Long and the Hoods had settled; (b) Was it error to inform the jury of the amount of the settlement; and (c) Was it error to inform the jury that, in the settlement agreement, Long agreed to “cooperate with Plaintiffs to prosecute their claims against Massengill Trucking and will testify at trial as needed.”

¶ 11. Counsel for the Hoods informed the jury during voir dire of the settlement, the amount of the settlement, and Long’s agreement to cooperate and testify. Smith at no time lodged an objection with the trial court. Prior to trial, the Hoods filed a motion in limine to prevent the introduction of the settlement agreement. This Court has recognized that a party who has been denied a motion in limine is not required to object when the evidence sought to be excluded is put before the jury. Jones v. Panola County, 725 So.2d 774, 775 (Miss.1998); Kettle v. State, 641 So.2d 746, 748-49 (Miss.1994). Smith, however, did not join in the motion in limine. Therefore, the rule that a contemporaneous objection is not required does not apply to Smith. Neither did Smith raise any objection during the pretrial hearing on the motion in limine, when counsel for the Hoods informed the jury of the contents of the agreement during voir dire, or when the settlement agreement was offered into evidence. Smith is not permitted to sit idly by while his co-plaintiff submits evidence to the jury and then complain on appeal. Smith’s assignment of error is, therefore, procedurally barred. Walker v. State, 729 So.2d 197, 202 (Miss.1998) (failure to raise lodge contemporaneous objection bars issue on appeal); Berry v. State, 703 So.2d 269, 281 (Miss.1997); Holland v. State, 705 So.2d 307, 352 (Miss.1997).

¶ 12. We should also note that even Hood would be precluded from raising this assignment of error as it was Hood that created the alleged errors to begin with by informing the jury of all contents of the settlement agreement during voir dire. See Brown ex rel. Webb v. Blackwood, 697 So.2d 763 (Miss.1997) (“One may not complain on review of errors for which he was responsible ... [a]n appellant will not be permitted to take advantage of errors for the commission for which he was responsible, or which he himself committed, caused, brought about, provoked, participated in, created, or helped to create, or contributed to.”). See also Cummins v. Century 21 Action Realty, Inc., 563 So.2d 1382 (Miss.1990) (same holding, where trial court denied Cum-mins’s motion in limine pertaining to settlement and Cummins’s attorney referred to settlement during voir dire).

¶ 13. Nevertheless, despite the procedural bar, because this case is reversed and remanded for new trial due to conflicting jury instructions, we will briefly address these three questions of admissibility-

Existence of a Settlement

¶ 14. Before the enactment of Miss.Code Ann. § 85-5-7 (1999), juries were often left in the dark as to “change of heart” following a settlement agreement. That is, before this section was enacted, trial judges often would allow the jury to consider only the fault of parties to the lawsuit and not settling defendants. See, e.g., McBride v. Chevron, 673 So.2d 372 (Miss.1996). However, Miss.Code Ann. § 85-5-7(7) changed the situation and determined, “[i]n actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.” Id. This Court has interpreted this section to mean that any tortfeasor, even absent ones, that contributed to the injury must be considered by the jury when apportioning fault. Estate of Hunter v. General Motors Corp., 729 So .2d 1264 (Miss.1999).

¶ 15. In Robles ex rel. Robles v. Gollott & Sons Transfer & Storage, Inc., 697 So.2d 383 (Miss.1997), the trial court allowed defense counsel to bring out on cross-examination the fact that the plaintiff had sued the settling defendant and alleged her to have been negligent. This Court held that, in allowing the settlement to be mentioned, the trial court had followed one of the acceptable procedures used to determine damages due to a plaintiff where co-defendants are involved and one co-defendant has settled. Id. at 385.

¶ 16. The jury in the case sub judice was obligated to determine Long’s percentage of fault irrespective of his status as a party at the time of trial. Logically, the jury was entitled to know that, up until the settlement, both the plaintiffs and the Hoods were claiming that John Long was at fault for the accident and brought suit against him seeking a recovery for the same. The trial judge did not err by allowing the jury to be informed of the settlement agreement.

Amount of the Settlement

¶ 17. The jury should not have been told the amount of the settlement. This Court has stated that “[t]o inform a jury of the amount of a settlement prior to its returning a verdict for a joint tortfeasor or co-defendant will certainly and unnecessarily influence a jury in its decision.” Whittley v. City of Meridian, 530 So.2d 1341, 1346 (Miss.1988). See also Robles, 697 So.2d at 385 (jury must not be informed of the amount of the settlement). The probative value, if any exists at all, of the settlement amount is substantially outweighed by the danger of unfair prejudice. As we recognized in Robles, the tendency to determine that the plaintiff has already been adequately compensated is too tempting. Robles, 697 So.2d at 385. The settlement amount should have been excluded pursuant to M.R.E. 403.

Long’s Agreement to Cooperate and Testify

¶ 18. Long’s agreement to cooperate and testify is relevant to his credibility as a witness and may properly be inquired into on cross-examination by defense counsel. During the trial, defense counsel, on cross-examination of Long, admitted into evidence the settlement agreement, which contained Long’s agreement to cooperate with the Hoods and testify at trial. However, he questioned Long about only the existence of the settlement and the amount of the settlement. He did not ask Long about the agreement to cooperate and testify, presumably because there was no need to — Hoods’ attorney had already informed the jury of the agreement, once during voir dire and again on direct examination of Long. On remand, defense counsel is entitled to cross-examine Long regarding his agreement to cooperate and testify.

II.

¶ 19. The plaintiffs requested and were granted instruction P-7H that instructed the jury that defendant John Payne’s violations of the posted traffic laws on the exit ramp constituted negligence as a matter of law. The aforementioned instruction also stated that “[i]f you find that John Payne’s negligence and failure to comply with this regulation was the sole proximate cause or proximate contributing cause of the Plaintiffs Doris Hood’s injury, then your verdict shall be for the Plaintiff, Doris Hood.”

¶ 20. The trial court also granted defendants’ instruction DP-19 and defendants’ unnumbered instruction. Instruction DP-19 stated:

The Court instructs the jury that if you find from a preponderance of the evidence that John Payne, as he reached the end of the exit ramp, increased his speed in the acceleration lane until reaching cruising speed, yielded to the approaching vehicle of John Long, and gave a proper signal to indicate that he intended to merge into the main flow of traffic, then John Payne adhered to the standard of care for a reasonable and prudent driver under the circumstances and your verdict should be for the Defendants, John Payne and Mas-sengil Trucking Service, Inc.

(emphasis added). The unnumbered instruction read as follows:

The Court instructs the jury that Highway 45 in this instance was a favored roadway and John Payne had a duty to yield the right-of-way to John Long’s vehicle as it traveled on Highway 45 since it was approaching so closely on said highway as to constitute an immediate hazard. If you find from a preponderance of evidence that (1) John Payne’s vehicle, prior to and during the time of the subject accident, at no time entered the outside (easternmost) lane on Highway 45 and (2) that John Payne otherwise made no overt action which would have indicated to a reasonable driver on Highway 45 that said driver was about to be deprived of his privilege of the immediate use of the highway, then John Payne yielded the riyht of way and your verdict should be for the defendants, John Payne and Massengil Trucking Service, Inc.

(emphasis added).

¶21. The plaintiffs argue that the aforementioned three jury instructions are conflicting and confusing. Specifically, they contend:

“[s]uch instructions are antagonistic to one another and are simply incapable of being read in harmony for they tell the jury that they must find one thing while, at the same time, telling them that they may find a totally inapposite conclusion. Put another way, a person can not [sic] be negligent and not negligent at the same time while engaging in the same activity.”

This Court has clearly articulated the standard we are to follow when assessing whether there has been a submission of legally erroneous instruction:

[0]n appellate review, we do not isolate the individual instruction attacked, but rather we read all of the instructions as a whole. Defects in [a] specific instruction do not require reversal where all instructions taken as a whole fairly— although not perfectly — announce the applicable primary rules of law ... Where it may be fairly charged that one or more instructions may have been confusingly worded, we should not reverse if other instructions clear up the confusing points ... On the other hand, where we find two or more instructions in hopeless and substantive conflict with each other, we often reverse.

Strickland v. Rossini, 589 So.2d 1268, 1273 (Miss.1991) (quoting Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 4(M1 (Miss.1989)).

¶ 22. Clearly, instruction P 7H should not have been given. No accident occurred on the exit ramp, and Payne’s exceeding the ramp speed per se could not cause Hood’s injury as a matter of law. Furthermore, even assuming instruction P-7H was warranted, the instructions as a whole are in hopeless and substantive conflict with each other. Instruction P-7H informed the jury that Payne’s violations of the speed limit constituted negligence as a matter of law, while instruction DP-19 informed the jury that if Payne accelerated to cruising speed, yielded to Long, and turned on his signal, then he was not negligent. The unnumbered instruction informed the jury that it could find Payne had not breached his duty to yield. Stated simply, the jury was instructed that it must find Payne negligent and, at the same time, that it could find that Payne was not negligent. These instructions are incapable of being read in harmony.

¶ 23. In Elam v. Pilcher, 552 So.2d 814 (Miss.1989), the trial court submitted to the jury the question of the defendant’s negligence, while at the same time instructing the jury that the defendant was negligent as a matter of law. This Court held that this was reversible error. Id. at 817. Likewise, we cannot say that the conflict that existed in the instructions did not prejudice Smith. It cannot be determined from the verdict of the jury, which found no liability on the part of Payne, whether the jury disregarded instruction P-7H. It is possible that the jury considered instruction P-7H and still determined causation to be lacking.

¶ 24. This Court finds that the verdict was the result of an improperly instructed jury. Not only was instruction P-7H improperly given, but the instructions as a whole were contradictory and confusing. Accordingly, the judgment of the trial court must be reversed and this case remanded for a new trial.

CONCLUSION

¶25. We are of the opinion that the motion for a new trial should have been granted. The judgment of the trial court is reversed, and this case is remanded for a new trial on both issues of liability and damages. On retrial, the jury may be informed of existence of the settlement between Long and the Hoods, but it should not be told the amount of the settlement. Defense counsel is entitled to cross-examine Long regarding his agreement to cooperate with the Hoods and testify at trial as such is clearly relevant to his credibility as a witness.

¶ 26. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER, COBB, EASLEY, CARLSON and GRAVES, JJ., CONCUR. McRAE, P.J., and DIAZ, J., CONCUR IN RESULT ONLY.

      . The only settlement agreement at issue in this case is that between the Hoods and Long.

      . John Long settled for $165,000.

      . The Hoods do not appeal the judgment of the trial court.