text:
    Trudy CORTEZ v. EAST JEFFERSON GENERAL HOSPITAL.
    No. 08-CA-653.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.
    Writ Denied April 3, 2009.

      Frank A. Bruno, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Jacqueline G. Griffith, Carl L. Aspelund, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, LLC, Metair-ie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., GREG G. GUIDRY, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

|2The appellant/employer, East Jefferson General Hospital, has appealed the trial court judgment in favor of claimant, Trudy Cortez. For the reasons that follow, we affirm the award of medical payments and compensation benefits and reverse the award of penalties and attorneys fees.

FACTS

On September 25, 1998, the claimant was working as a medical technologist at East Jefferson General Hospital, when she injured her back while in the course and scope of her employment. She sought medical treatment from Dr. Ralph Gess-ner, who performed lumbar surgery on her in July 1999. Ms. Cortez testified that following this procedure her back pain improved for a short time, and she returned to work at regular duty on a full time basis. She explained that in November 1999, her pain increased and a few months later she was put on light duty work. She continued on light duty work until 2002. She received | ^compensation payments until December 20, 2002. Those payments and medical treatment are not at issue in this appeal.

In 2002, Ms. Cortez moved to north Louisiana and sought treatment from Dr. Pierce Nunley, an orthopedist in Shreveport. In February 2003, Ms. Cortez went to work as a medical technologist at a hospital in northern Louisiana. Her back pain continued and she experienced pain in both of her legs making it difficult to walk or stand. She testified that in December 2003, she began walking -with a cane for support because her leg gave out at times. Ms. Cortez testified that she visited Dr. Nunley regularly and underwent numerous injections, nerve blocks and physical therapy. Her back pain and leg pain continued.

Ms. Cortez testified that in July 2005 while walking down a flight of stairs, her leg gave out and she “kind of bounced downstairs.” In August 2005, Dr. Nunley performed a discogram, which reproduced the pain she was experiencing. On October 25, 2005, Dr. Nunley performed an anterior lumbar interbody fusion at the L4-5 and L5-S1 disc spaces. Ms. Cortez testified that this procedure significantly reduced her pain allowing her to work full time including 15 hours per week overtime. She no longer has to take medication.

On July 2, 2004, Ms. Cortez filed a second disputed claim for compensation seeking additional workers’ compensation benefits for the September 1998 accident. It is these benefits and medical treatment that are the subject of this appeal. East Jefferson answered claiming that benefits for this accident had been paid and denied that further benefits were due. The defendant paid for the initial medical treatment from Dr. Nunley. However, when Dr. Nunley recommended a discography in anticipation of surgery, the defendant refused payment. Ms. Cortez underwent the discography and surgery, which were paid for by her private health insurer, Health Plus.

LLori Francis testified that she was a claims adjuster for the defendant and was assigned to Ms. Cortez’ claim. Ms. Francis testified that she denied payment of the discogram because this procedure was not recommended by Dr. Gordon Mead, who examined the claimant at the request of the defendant, or Dr. Bilderback who examined the claimant after being appointed by the Office of Workers’ Compensation Administration pursuant to defendant’s request. Ms. Francis admitted that Dr. Nun-ley’s office contacted her to request authorization for the discogram, but denied that her office was contacted for authorization for the surgery. She testified that she was notified of the surgery after the procedure took place. Ms. Francis acknowledged that authorization for a myelo-gram and CT scan were denied because there was a pending IME. She denied receiving further requests for these procedures until after they were performed.

On cross-examination, Ms. Francis admitted that she no longer has access to her file in this matter, but had reviewed her notes prior to trial. She was presented with the motion for IME filed by the defendant, which states there had been a request for discography before proceeding with surgery. Ms. Francis denied that anyone in Dr. Nunley’s office had called requesting authorization for surgery.

The deposition of Dr. Nunley was admitted into evidence. Ms. Cortez’ medical records were attached to the deposition. Dr. Nunley testified that he is board certified in orthopedic surgery with a specialty in spinal medicine and spinal surgery. Dr. Nunley testified that he first saw Ms. Cortez on January 31, 2003 at which time she was complaining of back and leg pain. He recommended an MRI and EMG. The MRI performed on February 14, 2003 showed significant disc disease at the L4-5 and L5-S1 levels. The EMG results were negative. Dr. Nunley explained that the initial injury caused pain from the disc and the nerve root. The first surgery performed in 1999 decompressed the nerve root, but did not address |»the discogenic low back pain. He recommended conservative treatment including physical therapy, non-narcotic pain medication, and nerve blocks. Ms. Cortez’ pain continued to increase and in April 2004, he recommended discography in anticipation of a spinal fusion. Authorization was refused by Ms. Cortez’ former employer. Eventually the procedure was authorized by Ms. Cortez’ private health insurer and the dis-cogram was carried out on August 16, 2006. Dr. Nunley explained that this procedure reproduced the concordant pain that Ms. Cortez experienced on a daily basis. The spinal fusion was performed on October 25, 2005. Ms. Cortez was unable to work from this surgery until January 26, 2006 at which time she was released to light duty work. She returned to full duty work on April 19, 2006. Dr. Nunley further testified that he recommended a mye-logram and CT scan be performed prior to surgery and these tests were denied by the defendant as well. He explained that these tests showed blunting of the SI nerve root.

Dr. Nunley testified that the July 2005 fall did not aggravate or accelerate Ms. Cortez’s condition.

Dr. Nunley compared his experience to that of Drs. Mead and Bilderback. Dr. Bilderback is a fellowship trained spine surgeon who performed spine surgery for three years then did a fellowship in hand surgery. He no longer does spinal surgery. Dr. Mead is not a spine surgeon and does not perform spinal surgery.

The deposition of Dr. Mead was admitted into evidence. Dr. Mead testified that he is an orthopedic surgeon and performed spine surgery from the time of his residency until the early 1990s. He sees 10 to 15 patients per week who complain of back pain some of which are candidates for back surgery. Dr. Mead first examined Ms. Cortez on October 1, 2003 at the request of her former employer. Dr. Mead testified that while Ms. Cortez had marked limited motion in her low 1 ^back, the physical exam showed her reflexes to be intact, she had good strength and sensation, and her neurological exam showed no evidence of nerve root impingement. He testified that he reviewed the MRI reports of February 14, 2001 and the EMG/ nerve conduction studies of February 19, 2003. Dr. Mead concluded there was no objective evidence to support the severity of her complaints. He opined that Ms. Cortez had degenerative disc disease and scarring around her nerve roots. He did not feel that an IDET (Intradiscal Electrothermal Therapy) procedure or discogram would benefit Ms. Cortez.

On May 24, 2004, Dr. Mead examined Ms. Cortez a second time at the request of defendant. Ms. Cortez reported that her pain had increased in the last year and she had sought treatment from two pain specialists. Dr. Mead reviewed the report of the' February 14, 2003 MRI and found it showed mild degenerative disease and no neural impingement or epidural scar formation. He reviewed reports from a CT scan dated October 17, 2003 and a myelo-gram dated December 8, 2003, both of which were negative. He noted that Ms. Cortez walked with a slight limp but had no difficulty getting on the exam table, which he found inconsistent. Her physical exam showed no decreased sensation or weakness and no nerve root impingement. While he did note the circumference of her right leg measured ½ inch smaller than that of her left, he did not place any significance on this finding. Dr. Mead concluded that there were no objective findings to support her complaints of severe pain. Dr. Mead explained that he did not believe a discogram would be helpful because he does not believe a fusion is an indicated procedure for degenerative lumbar disc disease without objective symptoms on physical exam and given the paucity of the objective findings on the CT scan and myelogram. Dr. Mead testified that he has never ordered a discogram because he does not think they have any value to help determine how to treat a patient.

17Pr. Mead further testified that the procedure performed by Dr. Nunley, an anterior lumbar interbody fusion, is only indicated in chronic back pain unrelieved by conservative treatment that is due to instability, fracture or recurrent disc herniation. He opined that the findings on plaintiffs diagnostic tests were not sufficient to justify this surgery. Reports by Dr. Mead dated 10/1/03 and 5/24/04 corroborated his testimony.

A report from Dr. Karl Bilderbaek was admitted into evidence. Dr. Bilderbaek was appointed to examine Ms. Cortez in response to a request for an independent medical examination filed by the defendant. The accompanying motion states “the sole dispute in this matter is as to the medical condition of the Employee and her request for approval of a discogram and surgery.” Dr. Bilderbaek examined Ms. Cortez and noted her prior history, including that of a total of five steroid injections that did not provide lasting pain relief. He reviewed her prior MRIs, EMG, and myelogram/CT and performed a physical examination. He concluded that she had chronic consistent low back pain with no evidence of radiculopathy or segmental lumbar instability. Dr. Bilderbaek did not believe a discography would be appropriate because he did not believe the secondary procedure of either an IDET or a fusion would be of any therapeutic benefit. He further stated “I do not believe that any further treatment would be of any benefit.”

A report from Dr. William Crotwell was also admitted into evidence. Dr. Crotwell reviewed Ms. Cortez’ medical records at the request of the defendant on July 16, 2004. He concluded that there was not enough physical data with objective evidence to substantiate extensive workup such as discogram, discography, or a fusion. He opined that her subjective complaints are greater than her objective evidence.

|8At the conclusion of trial, the judge took the matter under advisement. He later rendered judgment finding the disco-gram performed on August 16, 2005 and spinal fusion performed on October 25, 2005 were reasonable and necessary and directly related to her original occupational injury at East Jefferson General Hospital on September 25, 1998 and awarded the stipulated costs of those procedures, $31,657.84. The judgment also awarded Supplemental Earnings Benefits at the zero earnings rate for the period of October 25, 2005 through January 26, 2006 and all out of pocket expenses in connection with the surgery. The judgment further awarded $6,000.00 penalties and $6,000.00 in attorney fees. The defendant filed a Motion for New Trial that was denied. This timely appeal followed.

AWARD OF THE MEDICAL EXPENSES

On appeal, the defendant lists two Assignments of Error related to the award of medical expenses. The defendant argues that the trial court erred in awarding medical expenses that were not properly submitted to the employer for approval, that were not reasonable or necessary, and were not related to the accident at work. The trial court ruled that the issue of the failure to seek approval for the surgery and testing that preceded it was denied because defendant failed to file the required pre-trial statement.

The Louisiana Administrative Code requires that each party to a dispute for compensation file a pretrial statement ten days prior to the pre-trial conference. La. Admin. Code tit. 40, pt. I § 6005. The code further provides that only those issues listed in the pretrial statement shall be litigated at trial. La. Admin. Code tit. 40 pt. § 6201. Thus, we find the trial judge had the authority to deny the defendant’s claim regarding timely submission.

| ciHowever, the record indicates the claimant had requested payment for the surgery and preceding testing prior to those procedures being performed. The motion for independent medical examination filed by the defendant on August 20, 2004 states “the sole dispute in this matter is as to the medical condition of the Employee and her request for approval of a discogram and surgery.” Accordingly, defendant’s contention that these medical expenses were not properly submitted to the employer for approval is without merit.

Furthermore, we find the record supports the trial court’s finding that the discogram performed on August 16, 2005 and spinal fusion performed on October 25, 2005 were reasonable and necessary and directly related to her original occupational injury at East Jefferson General Hospital on September 25,1998.

Factual findings in a workers’ compensation case are subject to the manifest error or cleai’ly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. For an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon | ] nreview, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

Ms. Cortez testified that after her injury of September 1998, her legs continued to “buckle” and “give out.” She explained that she began walking with a cane for support due to this problem. This is documented in Dr. Nunley’s records. Ms. Cortez testified that she fell down stairs as a result of her leg giving out. Dr. Nunley testified that this fall did not have a significant impact on Ms. Cortez’ condition. The trial judge stated that he found the testimony of Ms. Cortez to be credible and that of Dr. Nunley to be persuasive. Thus, the finding that the medical treatment was related to the initial injury of September 1998 is supported by the record.

The trial judge further stated that he rejected the findings of defendant’s physician, Dr. Mead, and the state appointed IME, Dr. Bilderback, because although these physicians were orthopedists, they do not practice surgery of the spine.

La. R.S. 23:1123, which provides for the appointment of an independent medical examiner (IME) when there is a conflict in the medical evidence, states that the report of the IME shall be prima facie evidence of the facts therein stated. The courts have interpreted La. R.S. 23:1123 to mean that an IME’s medical conclusions should be given significant weight because the IME is an objective witness. Fritz v. Home Furniture-Lafayette, 95-1705, p. 8 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132, 1136. Nevertheless, the opinion of the IME is not conclusive, and the trial judge must evaluate all of the evidence presented in making a decision as to the claimant’s condition. Jennings Am. Legion Hosp. v. Daigle, 01-621, p. 3 (La.App. 3 Cir. 11/14/01), 801 So.2d 550, 553 writ denied, 01-3294 (La.9/5/03), 852 So.2d 1038. The weight given to the testimony of an |UIME can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors. Id. A trial court’s assessment of the necessity of medical treatment pursuant to La. R.S. 23:1203(A) is a factual determination subject to the manifest error standard of review. Ramogasse v. Lafitte Welding Works, 93-682, p. 2 (La.App 5 Cir. 12/13/95), 666 So.2d 1176, 1178.

Dr. Nunley testified that the conservative treatment options prescribed and followed by Ms. Cortez did not alleviate Ms. Cortez’ pain. Dr. Nunley estimated that he has performed approximately 1,000 dis-eograms. He explained that the disco-gram is used to ensure that surgery is being performed at the correct level of the spine. Dr. Nunley knew Dr. Bilderback and explained that while Dr. Bilderback trained as a spine surgeon, he had not performed spine surgery for a number of years, and instead underwent further training as a hand surgeon. Additionally, both Ms. Cortez and Dr. Nunley testified as to the significant improvement in Ms. Cortez’ condition following the surgery. This was. supported by Dr. Nunley’s records. Accordingly, we find no manifest error in the trial court’s finding that the discogram and spinal fusion were reasonable and necessary.

AWARD OF WORKERS’ COMPENSATION BENEFITS

The defendant argues that Ms. Cortez should not have been awarded compensation benefits because the medical treatment that led to her being unable to work was not authorized and/or was unrelated to the accident at work. Our finding that the medical treatment was related to the accident at work renders a discussion of this argument moot.

┴12The defendant further argues that Ms. Cortez’ claim for benefits had prescribed. The trial judge ruled the issue of prescription was denied due to defendant’s failure to file the required pretrial statement. Without making a determination as to the correctness of this ruling, we find the claim for benefits was not prescribed.

The trial judge awarded Supplemental Earnings Benefits at the zero earnings rate to be paid from the date of the spinal fusion surgery, October 15, 2005 until the date Ms. Cortez returned to work on January 26, 2006.

La. R.S. 23:1209(A) provides that a claim for supplemental earnings benefits must be submitted within three years of the last payment of weekly compensation benefits. Ms. Cortez received her last weekly benefit on December 20, 2002. She filed the instant claim for weekly benefits on July 2, 2004, well within the three year time period.

The defendant contends that while the benefits are termed supplemental earnings benefits, they were actually temporary total disability benefits because Dr. Nunley testified that Ms. Cortez was unable to work during this time period. The courts have recognized that certain benefits may be available to a claimant even when the right to other benefits, such as total and permanent disability benefits, has prescribed. See, Bibbins v. Boh Bros. Construe. Co., 99-349, (La.App. 5 Cir. 10/13/99), 746 So.2d 154; Duncan v. State ex rel. DOTD, 556 So.2d 881 (La.App. 2 Cir.1990). Additionally, the employee does not have to be employed in order to receive supplemental earnings benefits. R.S. 23:1221(3)(c)(i). Thus, we find Ms. Cortez’ claim for supplemental earnings benefits was not prescribed.

PENALTIES AND ATTORNEYS FEES

11sThe defendant argues that the trial court should not have awarded penalties and attorney’s fees because defendant had three doctors, one of whom was the IME, who stated the discogram and surgery were not necessary. The claimant has answered the appeal seeking additional attorneys fees incurred in this appeal.

Pursuant to La. R.S. 23:1201(F) and (I), failure to provide benefits shall result in the assessment of penalties and attorney fees. This provision does not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. Id. In construing the term “reasonably controverted” as contemplated by the statute, our courts have found that in order to preclude the imposition of penalties and attorney’s fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfriv-olous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed. Redler v. Giorlando’s Restaurant Corp., 07-658 p. 7, (La.App. 5 Cir. 2/6/08), 979 So.2d 512, 516, writ denied, 08-0863, (La.6/6/08), 983 So.2d 925.

Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Company United, Inc., 04-0100 p. 17 (La.3/2/05), 894 So.2d 1096, 1108. While the benefits conferred by the Workers’ Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Trahan v. Coca Cola Bottling Company United, Inc., 894 So.2d at 1108.

The first mention of getting approval for discography in Dr. Nunley’s office records appears on August 29, 2003. Shortly thereafter, on October 1, 2003, Dr. 114Mead examined Ms. Cortez and rendered a report stating that a discogram would not be of any benefit. On April 19, 2004, Dr. Nunley again recommends discography after which he will make a recommendation for surgery. Dr. Mead examined Ms. Cortez a second time on May 24, 2004, and again stated: “I do not believe that a lumbar discogram is particularly helpful in determining whether lumbar disc surgery is indicated since I do not believe that a fusion is an indicated procedure ...” On July 16, 2004, Dr. William Crotwell reviewed Ms. Cortez’ medical records at defendant’s request and stated she did not need a discogram or discography or surgery. On August 20, 2004, defendant filed a Motion for Appointment of an Independent Medical Examiner. Dr. Bilderback was appointed and examined Ms. Cortez on October 28, 2004 and stated “I do not believe that discography would be appropriate as I do not believe ... a fusion would be of any therapeutic benefit.”

Given the findings by these three physicians that discography and surgery were not appropriate, we find the trial judge committed manifest error in awarding penalties and attorney’s fees. Accordingly, the award of penalties and attorney’s fees is reversed. Likewise, the claimant’s request for attorney’s fees on appeal is denied.

VAGUENESS OF THE TRIAL COURT JUDGMENT

In their final Assignment of Error, the defendant contends the trial court judgment is vague in that it does not specify the rate of supplemental earnings benefits and does not specify the amount of out of pocket medical expenses to be paid.

Our reading of the record indicates the trial court judgment is not vague. During the time period for which Ms. Cortez was awarded supplemental earnings | ^benefits, Ms. Cortez was not able to work. The trial court recognized this and awarded supplemental earnings benefits at the zero earnings rate. The parties stipulated that according to her pre-injury earnings, Ms. Cortez was entitled to the maximum compensation rate in effect at the time of her injury, which was later determined to be $867.00 per week. Thus, according to the trial court judgment, Ms. Cortez is to be paid $367.00 per week from October 25, 2005 through January 26, 2006.

As for out of pocket expenses, Ms. Cortez testified that her out of pocket medical expenses were $100.00 for the myelogram, $450.00 for the surgery, $100.00 for the discogram, and $100.00 for medications. Thus, according to the trial court judgment, Ms. Cortez is to be paid $750.00 in out of pocket medical expenses.

The trial court judgment provides for interest from the date of the signing of judgment. However, LSA-R.S. 23:1201.3 A provides for interest, at the rate in effect on the date the claim for benefits was filed, on all unpaid benefits from the date each benefit was due until the judgment is satisfied. Accordingly, the judgment below is amended to provide for same.

CONCLUSION

For the foregoing reasons, the portion of the trial court judgment awarding medical benefits and supplemental earnings benefits is affirmed, the award of penalties and attorney fees is reversed, and the judgment is amended to award interest from the date benefits were due.

AFFIRMED IN PART; REVERSED IN PART; AMENDED.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Anthony M. GRAPHIA v. Ronald J. SCHMITT, Jr.
    No. 08-CA-613.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 13, 2009.

      Brad G. Theard, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellant.
    T. Gregory Schafer, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| .¿This is an appeal from a summary judgment rendered in favor of United Services Automobile Association (“USAA”) dismissing a third party demand on the issue of insurance coverage. For the reasons stated herein, we reverse and remand the case for further proceedings.

Facts and Procedural History.

Anthony M. Graphia filed the instant suit for damages against Ronald L. Schmitt, Jr. as a result of a physical altercation that took place between the two men in front of Schmitt’s home on the night of July 8, 2006. In his petition, plaintiff alleges that he was leaving Schmitt’s home after a party when Schmitt snuck up behind him and began beating him, causing personal injury. Schmitt responded to the petition with an answer generally denying the allegations of the petition and pleading self defense as an affirmative defense. Also, Schmitt brought a reconventional demand against Graphia alleging fault on his part as well as a third party demand against Schmitt’s homeowner’s insurer, USAA, seeking a defense and indemnity against the claims asserted by Graphia.

lain its answer, USAA admitted that a policy had been issued to Schmitt, but asserted that the policy did not provide coverage for the alleged acts of Schmitt based on an intentional act exclusion contained in the policy. Thereafter, USAA brought a motion for summary judgment on the basis that there was no coverage under the subject policy for the damages incurred herein and thus there was no duty to defend. Following a hearing, the trial court granted summary judgment in favor of the insurer, and Schmitt now appeals from this ruling.

By this appeal, Schmitt contends that the trial court erred in granting summary judgment with regal’d to coverage under its policy without producing any evidence to support that the intentional acts exclusion contained in the policy applied to the facts of this case. Schmitt contends that the factual allegations of self-defense in his reconventional demand and the affidavit of a witness to the incident who corroborated this defense render the intentional act exclusion in the policy inapplicable.

Lavo and Discussion

A motion for summary judgment should be granted when there exists no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966; Costly v. Batiste, 01-496, p. 3 (La.App. 5 Cir. 11/14/01), 802 So.2d 752, 754. Appellate courts review summary judgments de novo using the same criteria applied by the district court in order to determine whether the grant of summary judgment was appropriate. Skidmore v. Initial DSI Transport, Inc., 99-1066, p. 2 (La.App. 5 Cir. 2/29/00), 757 So.2d 107, 108. Whether an insurance policy provides or precludes coverage, as a matter of law, can be resolved within the framework of a motion for summary judgment. Richardson v. Lott, 03-┴0189,4 p. 5 (La.App. 1 Cir. 11/7/03), 868 So.2d 64, 69, writ denied, OS-3324 (La.2/13/04), 867 So.2d 707.

An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Hollingsworth v. United Services Auto. Association, 01-397, p. 6 (La.App. 5 Cir. 12/26/01), 806 So.2d 756, 759, writ denied, 02-295 (La.4/12/02), 813 So.2d 406; Magnon v. Collins, 98-2822, p. 7 (La.07/07/99), 739 So.2d 191, 196-197. Absent a conflict with statutory provisions or public policy, insurers, or like other individuals, are entitled to limit their liability and to impose and enforce reasonable conditions upon the policy obligations they contractually assume. Id.

Generally, an insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. Prestenbach v. Badeaux, 03-809, p. 3 (La.App. 5 Cir. 12/30/03), 865 So.2d 180, 182; Yount v. Maisano, 627 So.2d 148, 153 (La.1993). Within this context, the insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiffs petition, and the insurer is obligated to defend the insured, unless the petition unambiguously excludes coverage. The allegations in the petition are to be construed liberally to determine whether they state grounds bringing the claims within the scope of the insurer’s duty to defend. Assuming all the allegations of the petition to be true, if there would be coverage under the policy and also liability to the plaintiff, the insurer must defend this suit, regardless of the outcome of the suit. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. The duty to defend is determined solely from | sthe plaintiffs pleadings and the face of the policy, without consideration of extraneous evidence. Prestenbach v. Bad,eaux, 03-809, p. 3 (La.App. 5 Cir. 12/30/03), 865 So.2d 180, 182; Audubon Trace Condominium Ass’n v. Brignac-Derbes, Inc., 03-746, p. 5 (La.App. 5 Cir. 11/25/03), 862 So.2d 157, 159, writ denied, 03-3483 (La.3/12/04), 869 So.2d 822; Yount v. Maisano, 627 So.2d 148,153 (La.1993).

The policy of insurance issued by United Services Automobile Association to Ronald J. Schmitt, Jr. provides in part that:

“SECTION II — LIABILITY COVERAGES
SECTION II — EXCLUSIONS
1. Coverage E-Personal Liability * * * [does] not apply to bodily injury or property damage:
a. caused by the intentional or purposeful acts of any insured, including conduct that would reasonably be expected to result in bodily injury to any person or property damage to any property.”

The pertinent portions of the plaintiffs petition for damages read as follows:

“3. On or about July 8, 2006, at approximately 10:30 p.m., petitioner, Anthony M. Graphia, was leaving a party at 505 Wiegand Drive, Bridge City, Louisiana, when defendant, Ronald J. Schmitt, Jr., suddenly and without warning snuck up behind petitioner and violently and with malice aforethought began beating petitioner in the head, face and body. Defendant continued to viciously beat plaintiff even after he was prostrate on the ground and unconscious.
4. This brutal and cowardly attack which was perpetrated upon plaintiff by defendant, Ronald J. Schmitt, Jr., was in no way caused or provoked by your petitioner and in fact he had no idea that this savage attack was imminent until he was first struck by defendant, Ronald J. Schmitt, Jr., from behind”

Although the unrebutted facts of the petition standing alone indicate plaintiff seeks damages for injuries he describes as an intentional battery committed by Schmitt, Schmitt affirmatively pleads self defense in his answer. Schmitt alleges that he witnessed an altercation between Graphia | (iand his girlfriend where Graphia verbally and physically assaulted the girlfriend. Schmitt attempted to intervene in the altercation and Graphia violently began striking out and hitting Schmitt. Schmitt alleges he struck Graphia “in order to defend himself.”

USAA argues that the duty to defend is determined solely from the plaintiffs pleadings and the face of the policy, and that the trial court correctly declined to consider the allegations of self-defense in defendant’s responsive pleadings in its determination of whether the insurer possesses a duty to defend its insured. In support of its argument, USAA relies on a case from this Court, Sperli v. Guiterrez, 00-1089 (La.App. 5 Cir. 10/18/00), 772 So.2d 805, wherein the insured’s self-defense exception argument to an intentional act exclusion was found to lack merit. However, that case is distinguishable from the present situation as the parties’ depositions revealed that the insured pulled a gun and shot defendant, who did not have a weapon. This Court found that there was no issue of fact as to the intent of the insured in this case.

USAA also relies upon another decision from this Court, Prestenbach v. Badeaux, supra, 08-809 (La.App. 5 Cir. 12/30/03), 865 So.2d 180. However, in that case, the Court found no duty to defend where the allegations of a reconventional demand indicated the insured pointed a rifle at the defendant. We likewise find the facts of that case to be distinguishable from the present case where a finding of an intentional act on the part of the insured remains in dispute.

Subsequently, in Fremin v. Cabral, 05-932, p. 6 (La.App. 5 Cir. 3/28/06), 926 So.2d 80, 82, this Court held that an answer and reconventional demand must be considered in deciding whether a material |7fact remains to be decided by the trier of fact. In that case, as in this one, the narrative in the responsive pleadings contradicts the presentation of facts set forth in the original petition. In Fremin, we found that these are factual issues material to the decision of whether an exclusionary clause in an insurance policy is applicable.

USAA argues that the Fremin case is distinguishable as the language of the exclusionary clause considered in that case is not identical to the one considered in the present case. However, we find the reasoning in the Fremin case applies to the instant factual situation. It is unlikely that in his petition for damages caused by an attack, Graphia would have alleged that Schmitt was acting in self-defense. The answer and reconventional demand filed by Schmitt, if proven to be true, presents a factual situation whereby the insurance policy could be reasonably interpreted to cover the act committed by its insured, Ronald Schmitt.

Further, a reading of the provisions of the USAA policy indicates that the exclusion applies to intentional acts of the insured, including conduct that would reasonably be expected to result in bodily injury. Based on Schmitt’s version of the accident, there is at least an issue of fact of whether Schmitt intended his actions or whether his conduct would reasonably be expected to result in bodily injury to Grap-hia. In interpreting an intentional act exclusion, the Supreme Court has held that the insured’s subjective intent regarding bodily injury, as measured by the fact finder, controls whether coverage applies. Breland v. Schilling, 550 So.2d 609, 614 (La.1989).

Therefore, based on the facts of this particular case, we find a summary judgment releasing USAA from the suit at this point in the proceedings is inappropriate, and the trial court erred in rendering judgment 18in favor of the insurance company. Based on a review of the insurance policy and the pleadings herein, we are unable to find that the policy in this case unambiguously excludes coverage for this incident as a matter of law. Accordingly, we remand the matter to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Leo MITCHELL.
    No. 08-KA-136.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 18, 2009.

      Paul D. Conniek, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Kenneth Bordelon, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Holli A. Herrle-Castillo, Attorney at Law, Marrero, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MADELINE JASMINE, Pro Tempore.
   MARION F. EDWARDS, Judge.

12Pefendant-appelIant, Leo Mitchell (“defendant”), appeals his convictions and sentences on one count of second degree murder, one count of attempted second degree murder, and one count of second degree kidnapping. For reasons that follow, we affirm the convictions and sentences.

Defendant was originally charged by Grand Jury Indictment dated June 1, 2000 with the first degree murder of Henry Porter, Sr. A sanity commission was appointed and, ultimately, defendant was found competent to stand trial. On June 23, 2005, the indictment was amended to reduce the charge to second degree murder. On December 22, 2005, all charges were dismissed, and new charges were filed. In a second Grand Jury Indictment, defendant was charged with the second degree murder of Henry Porter, Sr., the attempted second degree murder of Howard Bardell, and the second degree kidnapping of Elena Smith.

| .¡In due course, all three counts of criminal activity were tried before a jury. Defendant was found guilty as charged on all the counts. He was sentenced to serve life in prison at hard labor on count one, fifty years on count two, and thirty years on count three. The court ordered the sentences to be served concurrently without benefit of parole, probation, or suspension. On that same day, the State filed a multiple bill of information against defendant. Defendant filed a motion to reconsider the sentence and a timely motion for appeal.

FACTS

In April of 2000, Henry Porter, Sr. (“Mr. Porter”) lived with his wife, Evangeline Porter (“Mrs. Porter”), their two children, Howard Bardell (“Howard”) and Elena Smith (“Elena”), and Elena’s two-year-old daughter. The family lived in a small, three-room shotgun home in Kenner. Mr. and Mrs. Porter slept in the front room, and Howard, Elena, and the child slept in the second room of the home.

Early in the morning hours of April 2, 2000, Elena’s ex-boyfriend, the defendant herein, entered the home while all family members who were home at the time were asleep. Elena awoke to find defendant standing over her bed pointing a gun to her head. She screamed and awakened her brother, Howard, and her father, Mr. Porter. Howard, who was sixteen years old at the time, ran toward his parents’ bedroom. Defendant began firing, hitting both Mr. Porter and Howard. At the end of the gunfire, Mr. Porter lay dead from his wounds and Howard, who was shot twice, lay injured on the floor.

Defendant then grabbed Elena and ordered her to get her car keys, telling her she must come with him. Elena told defendant she did not have the car keys. 14After an unsuccessful search for the keys, defendant dragged Elena out of the house and through a wooded area in the rear of the home.

Howard was able to get to the phone and call relatives who lived nearby. The relatives came over and kicked in the door to find Mr. Porter dead and Howard injured. A call to 911 brought police officers to the home shortly afterward.

Sometime later, State Trooper Omar Landrum (“Trooper Landrum”), who was working a detail on Airline Highway, saw a taxi go by with a man and a woman in the back seat. The woman was staring at him in a way that caught his attention. Trooper Landrum had just gotten the report about the shooting and kidnapping nearby and a description of defendant and Elena, so he stopped the taxi cab to investigate. At that point, Elena got out of the cab and on the ground as instructed by Trooper Landrum. Defendant did not obey the command and began to run. Trooper Landrum got into his car and followed defendant through the streets of Kenner, eventually apprehending him in the 700 block of Williams Boulevard.

Elena told officers that she saw defendant throw the gun away and led officers to a convenience store nearby. A search of the area pointed out by Elena produced a gun, which later proved to be the gun used in the shooting.

LAW

In brief to this Court, defendant assigns two errors for our review. The first assignment questions the sufficiency of evidence used to convict defendant. The second assignment made in a supplemental brief relates to the trial court’s denial of defendant’s challenges for cause. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of Isthe evidence by considering the entirety of the evidence. If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Accordingly, we will consider defendant’s arguments relating to the sufficiency of evidence first.

The constitutional standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt.

In defendant’s case, the State was required to prove the elements of three separate offenses: second degree murder, attempted second degree murder, and second degree kidnapping.

The State set out to prove the defendant had specific intent to kill or to inflict great bodily harm in seeking the convictions on the charges of second degree murder and attempted second degree murder. Proof of that specific intent meets the definition of second degree murder. Further, “[a]ny person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended....”

To prove second degree murder, the State must prove that defendant had the specific intent to kill or to inflict great bodily harm. To prove attempted second degree murder, the State must establish, beyond a reasonable doubt, that the defendant specifically intended to kill a human being and that he committed an | overt act in furtherance of that goal. Specific intent to inflict great bodily harm is sufficient to support a murder conviction, but attempted second degree murder requires a specific intent to kill.

Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Specific intent need not be proven as a fact, but may be inferred from the circumstances surrounding the offense and the conduct of the defendant. The act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier-of-fact that the defendant acted with specific intent to kill. Whether a defendant possessed the requisite intent in a criminal case is a question for the trier-of-fact, and a review of the correctness of this determination is guided by the Jackson standard.

In our review of the facts and the applicable law, we find support for the jury’s decision that the State adequately proved all of the essential elements of all three crimes.

However, that finding does not end our review of the sufficiency of evidence. Defendant does not claim that the State failed to prove any of the elements of second degree murder or attempted second degree murder. Rather, defendant’s argument in challenging the sufficiency of the evidence is based on the issue of identification of the perpetrator. Defendant’s theory is that Elena paged him and let him into the house. It was Elena who killed Mr. Porter and attempted to kill Howard. Defendant supports this theory by pointing out that there was no ^evidence of forced entry into the house and that Mr. Porter was intoxicated and had traces of cocaine and anti-depressants in his blood at the time of his death. Defendant also points out that police were unable to identify the gun’s owner, no fingerprints were recovered from the gun, and no gunshot residue testing was done to establish whether or not he or Elena fired a gun. Defendant further argues that, although Howard testified that he saw defendant standing over Elena’s bed with a gun, Howard ran and did not actually see who shot him in the back.

The State must prove the defendant’s identity as the perpetrator in addition to proving the statutory elements of the charged offense at trial. As a general rule, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by one witness is sufficient to support a conviction.

Ballistics testimony showed the bullet that killed Mr. Porter was fired from the .38 caliber revolver found in the wooded lot. A lead projectile consistent with that gun was also recovered from the victims’ home.

Officer William Ceravola, the crime scene technician, testified he processed the revolver for fingerprints but was unable to locate any latent prints on it. The officer explained that he has never been able to lift a usable fingerprint from a gun; that it is difficult to obtain prints from such surfaces. Officer Ceravola testified that he did not perform gunshot residue tests on any witnesses in this case because, at the time of the shootings, it was the policy of the Kenner Police Department not to do such testing.

1 ROfficer Danny Kilian (“Officer Kilian”) of the Kenner Police Department testified that he was dispatched to the victims’ home on the morning of the shooting in response to a 911 call. When he arrived at the scene, he found the front door kicked open and two men lying on the floor. One man, later identified as Howard, was responsive. Thelma LeBeaux, Howard’s aunt, was also at the scene. Based on the statements from Howard and his aunt, Officer Kilian identified defendant as a suspect in the shooting and sent out his description to fellow police officers.

Officer Kilian was informed later that a suspect fitting the description had been apprehended on Williams Boulevard by a state trooper. Officer Kilian proceeded to that site to find defendant lying on the ground with his hands handcuffed behind his back. Defendant stated that his name was Leo Mitchell and that he had been kidnapped with Elena from her residence by an unknown man and taken into the woods. Defendant also stated that the unknown male shot Mr. Porter and Howard. Officer Kilian also testified that Elena was wearing only a long T-shirt and underwear and had multiple scratches about her legs and arms.

State witnesses, who were members of the victims’ family, knew defendant, as he had dated Elena for more than a year. There was testimony that defendant had visited the Porter home on occasion. Both Elena and her brother, Howard, testified they saw defendant in their bedroom. Elena testified defendant held a gun to her face. Elena also testified that she actually saw defendant shoot both Mr. Porter and Howard. Howard testified that he saw something in defendant’s hand that looked like a gun. Howard did not see who shot him because he was shot in the back as he was running away. However, Howard clearly believed defendant was the shooter, since he said as much to his aunt, Thelma LeBeaux, when he called her for help. Moreover, Howard did not see Elena or Mr. Porter with a gun | aor any kind of weapon, and Officer Killian, the first police officer to arrive at the murder scene, testified he did not find any weapons there.

Defendant argues that the State did not establish a point of forced entry into the house, suggesting that Elena allowed him into the house willingly. He maintains that, since the State did not produce fingerprint evidence from windows or doorknobs, it failed to show how he could have entered the Porter home without Elena’s consent.

Mrs. Porter testified that she locked the doors before she left the house for work on the morning of the shootings. The front door was still locked when the LeBeaux family arrived in response to Howard’s telephone call. It was the LeBeaux family who kicked in the front door after getting the frantic call from Howard. Officer Kil-lian testified that he could not identify the perpetrator’s point of entry. His investigation showed the front door had been kicked open by the relatives who came to Howard’s aid. However, one of crime scene photographs depicts a ladder propped under a window on the side of the residence. Testimony of Mrs. Porter establishes that the window had no glass in it and was covered by plastic.

It is clear from the testimony of police officers that defendant made statements at the time of his arrest that were inconsistent with subsequent statements made at police headquarters. Defendant told one detective that he went out on the night of April 1, 2000, and into the morning of April 2. A friend dropped him off at a convenience store on Airline Highway. While in the parking lot outside of the store, he saw Elena emerge from the nearby woods. Defendant said he crossed Airline Highway and escorted Elena toward the store. According to defendant, his meeting with Elena that morning was coincidental. He denied having shot anyone, and he did not admit to having a gun that day or to being in | inthe house where the crime occurred. Defendant also denied having kidnapped Elena. Defendant said Elena was responsible for the shootings; that she wanted her stepfather dead because he was interfering with her relationship with defendant.

At the time of his arrest, defendant claimed Elena secretly admitted him to the house and an unknown man came in and shot Howard and Mr. Porter and took defendant and Elena out of the house. Elena, however, testified there were no strangers in the house at the time of the incident, only family members. Elena also testified that defendant told her, “ T didn’t mean to shoot those people.’ ”

Defendant later told an officer that Elena was the shooter and that she had killed Mr. Porter because he was interfering with Elena’s relationship with defendant. Elena, on the other hand, testified she did not have any trouble with Mr. Porter. Defendant then contradicted himself by stating he was never in the Porter residence on the morning of crime.

Defendant argues that the evidence showed Elena could have contacted him prior to the incident and invited him to her house. But Elena testified that she did not call or speak with defendant on April 2, 2000. Detective Chad Jacquet testified that the pager recovered at the Airline Highway scene, purportedly belonging to defendant, contained the telephone number for the Porter residence. But, the pager did not show the dates and times of the calls made.

Defendant points to testimony that Mr. Porter had alcohol, cocaine, and other drugs in his system at the time of his death. He suggests the victim’s condition might have contributed to the shooting. Such supposition is refuted by Mrs. Porter’s testimony that Mr. Porter was asleep in his bed when she left for work at 3:45 on the morning of the shootings.

■J^Defendant suggests that Elena’s ability to direct police officers to the location of the murder weapon was an inference that it was she who abandoned it. There is simply no evidence in the record to support that assertion. Elena’s testimony that defendant had the gun, and that it was he who discarded it in the wooded area, was unchallenged.

Both the direct and circumstantial evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.

Based on the foregoing, we find the State negated any reasonable probability of misidentifícation. Moreover, when presented with all the evidence, the jury could have reasonably determined defendant was the shooter. We do not find the State’s failure to link the gun to defendant by way of fingerprint evidence rendered the overall evidence that defendant was the shooter insufficient. The evidence produced by the State, while circumstantial in nature, provided a basis for the jury’s finding that the defendant possessed the weapon. The evidence at trial in this case, both direct and circumstantial, supports the jury’s finding that defendant was the shooter, even absent evidence such as fingerprints and gunshot residue testing.

In finding the defendant guilty of second degree murder and attempted second degree murder, the jurors clearly found the State’s witnesses more credible | l2than defendant’s conflicting statements to police. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. Here, we find the evidence at trial sufficient under Jackson to support the State’s charge that defendant was the perpetrator, and that he is guilty of second degree murder and attempted second degree murder.

Defendant was also convicted of second degree kidnapping, which is defined, in pertinent part, as follows:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another[.]

Elena testified that defendant held a gun to her face in her bedroom. After shooting her brother and stepfather, defendant ordered her, at gunpoint, to find the keys to her car. When Elena could not find the keys, defendant grabbed her and forced her, at gunpoint, to leave the house with him through the back door.

Howard, who was lying injured on the floor, heard defendant tell Elena to “[m]ove your ass.” Jurors could have reasonably determined, based on that testimony, that defendant forcibly seized Elena and used her to facilitate his flight from the murder scene. Moreover, defendant was armed with a dangerous weapon.

11sElena testified that defendant forced her to go into the woods behind her house with him. She sustained scrapes and cuts as he pulled her along, such that she required treatment by an emergency medical technician. Elena further testified that when she and defendant passed a house where they could see the occupant through the kitchen window, defendant threatened to shoot Elena and the man if she screamed for help. When Elena feigned an injury to her ankle, defendant told her, “You better get up, bitch. You better get up and come on before I shoot you.” At that point, defendant still had his gun. Elena further testified that, while defendant was pulling her through the woods, he told her that if they were caught, she was to tell police he was trying to rescue her.

The evidence showed defendant continued to use force against Elena. Elena testified that, even after defendant discarded the murder weapon in the woods, she thought he might have another weapon with him. For that reason, she felt forced to get into the cab with him.

Elena’s expression when she looked at Trooper Landrum from the cab was such that he was prompted to investigate. Trooper Landrum testified that Elena looked at him without blinking, with a dead kind of expression. At that point, it crossed his mind that the couple in the cab might be the ones for whom the Kenner officers were searching. The trooper’s testimony lent support to Elena’s testimony that she felt forced to go with defendant.

The victim’s testimony alone is sufficient to prove the elements of the offense. In this matter, however, the victim’s testimony was corroborated by a state trooper and a Kenner police officer.

|14We agree with the jury’s verdict that, viewed in the light most favorable to the prosecution, the State presented sufficient evidence to convict defendant of second degree kidnapping.

This assignment is without merit.

In a supplemental assignment of error, defendant complains that the trial court erred in denying his challenges for cause as to prospective jurors Joseph Johnson, Donald Mathas, and Luisa Isaba. As a result, he was forced to use peremptory challenges to excuse those individuals, and he ultimately exhausted his twelve peremptory challenges.

The State concedes that defendant exhausted his peremptory challenges but argues the trial court did not err in denying defendant’s challenges for cause as to the three prospective jurors at issue.

In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant has twelve peremptory challenges, and the State has twelve peremptory challenges per defendant.

Article I, § 17 of the Louisiana Constitution guarantees that “[t]he accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” A district court’s erroneous ruling depriving a defendant of a peremptory challenge substantially violates that defendant’s rights and constitutes reversible error."1 Prejudice is presumed when the trial court erroneously denies a challenge for cause, and the defendant ultimately exhausts his peremptory challenges. Thus, to prevail on appeal, a defendant must demonstrate 1) erroneous denial of his challenge for cause, and 2) use of all his peremptory 11schallenges Additionally, the defendant must show that, when the trial court denied his challenge for cause, he used one of his peremptory challenges curatively to remove that juror, thereby reducing his number of peremptory challenges, or waive the issue on appeal. This is so even in a case where the defendant uses all of his peremptory challenges. A trial court is given broad discretion in ruling on challenges for cause, and such rulings will only be reversed when a review of the entire voir dire reveals the trial court abused its discretion.

The record in this case reflects that defendant did, in fact, exhaust all of his peremptory challenges. He also used peremptory challenges to excuse the three prospective jurors at issue here. Therefore, defendant’s complaint as to the trial court’s refusal to grant his challenges for cause is properly before this Court. The question on appeal is whether the trial court erroneously denied defendant’s challenges for cause as to those three prospective jurors.

Prospective Juror Joseph Johnson

Defendant maintains the trial court erred in denying his cause challenge of Joseph Johnson (“Mr. Johnson”), whom defendant argues could not be an impartial juror in this case because his father had been murdered four years earlier. The State responds that Mr. Johnson’s answers to voir dire questions regarding his father’s murder showed he could be a fair and impartial juror.

LSAS-C.Cr.P. art. 797 provides, in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, 11(ithat he can render an impartial verdict according to the law and the evidence^]

During voir dire, Mr. Johnson stated he is retired from the United States Air Force and is employed as an information systems analyst. When the trial judge asked him whether he or someone in his family had been a victim of crime, Mr. Johnson replied that his father had been murdered four years earlier. The judge asked Mr. Johnson whether his father’s murder would affect his ability to serve as a fair and impartial juror in this case, and Mr. Johnson replied, “I don’t know.” The judge then told him, “I could understand that, and we’re going to let you be questioned by these attorneys and they’ll let you talk about the case and the type of case it is, and you know, if there’s a problem you need to tell us, okay?” Mr. Johnson replied, “Okay.”

Later, when questioned by the prosecutor, Mr. Johnson stated he would not hold the fact that his father had been murdered against defendant. He said he could be fair and impartial to the State and the defense. Mr. Johnson further indicated that, if the State proved its case at trial, he could return a verdict of guilty.

When questioned by defense counsel, Mr. Johnson stated his father was a cab driver, and that he had been found with a knife in his throat. His father’s killer had not been apprehended. Mr. Johnson said the fact that someone got away with killing his father would not weigh on his mind if he were seated on defendant’s jury. Mr. Johnson commented that defendant had not killed his father and what had happened to his father had no bearing on defendant’s case. Mr. Johnson told defense counsel he could understand his concerns about his sitting on the jury. Speaking to how he would handle sitting on the jury in this case, Mr. Johnson said, “From my standpoint, it doesn’t phase [sic] me in the least.”

|17In challenging Mr. Johnson for cause, defense counsel pointed out that, at first, Johnson said he did not know if he could be impartial due to his father’s murder. Mr. Johnson then said he could be fair. The prosecutor responded that Mr. Johnson also said he would not hold against defendant the fact that his father had been murdered.

The trial judge denied the challenge for cause, stating:

All right. I listened very carefully to his responses in voir dire to those questions. My concerns were heightened because of him telling me during my questioning of him that his father had been the victim of a murder approximately four years ago.
Mr. Johnson consistently answered that he could listen to the evidence and the testimony and the instructions of law in this case and reach a fair and impartial decision based upon the instructions, evidence, and testimony in this case. He answered that question numerous times.

Defense counsel objected to the court’s ruling. He then used a peremptory challenge to excuse Mr. Johnson.

The Louisiana Supreme Court has found that a prospective juror who has been the victim of a crime, or whose family member has been the victim of a crime similar to the one with which the defendant is charged is not prohibited from serving on the jury, provided the crime has not affected his or her objectivity. While Mr. Johnson initially expressed uncertainty about whether he could remain fair and impartial, he was later decisive in saying he could follow the law and give a fair hearing to both sides.

When a juror expresses a predisposition as to the outcome of a trial, a challenge for cause should be granted. Yet, if after subsequent questioning, or rehabilitation, the juror exhibits the ability to disregard previous views and make a decision based on the evidence presented at trial, the challenge is properly denied. 1 iSWhen assessing whether a challenge for cause should be granted, the district judge must look at the juror’s responses during his or her entire testimony, not just “correct” isolated answers or, for that matter, “incorrect,” isolated answers.

Mr. Johnson’s responses, as a whole, showed he could be a fair and impartial juror and that he could put aside the fact that his father was murdered if he were seated on the jury. The trial court did not err in denying defendant’s cause challenge of Mr. Johnson.

Prospective Juror Donald Mathas

Defendant challenged Donald Ma-thas (“Mr. Mathas”) for cause because he commented the charge against defendant should be first degree rather than second degree murder. Defendant further argues that Mr. Mathas seemed to feel that defendant should testify at trial, despite the Fifth Amendment privilege against self-incrimination. Finally, defendant argues Mr. Mathas said he would not be able to focus his attention on the trial because he would be missing work.

The State responds that, in the trial court, defendant’s only stated basis for defendant’s cause challenge of Mr. Mathas was that he would be distracted by his work obligations. The State argues that defendant is limited on appeal to the issue he raised below. The State further argues that defendant is not entitled to reversal on any of the grounds he now raises regarding Mr. Mathas.

Mr. Mathas stated during voir dire that he is married and has a son. He works for the telephone company. He said if the State proved its case, he could find defendant guilty. Mr. Mathas asked what the distinction is between first degree murder and second degree murder. The judge responded that he would instruct the jury as to the law applicable to second degree murder, the crime with which defendant was charged and that the jurors need only be concerned with |¶ ¿whether or not the State proved the elements of that offense. Mr. Mathas then commented that there did not appear to him to be much of a difference between a second degree murder and a death penalty case. The prosecutor explained the concept of specific intent as it applies to second degree murder and asked Mr. Mathas whether the explanation answered some of his questions. Mr. Mathas responded, “Correct.”

Mr. Mathas told the court that, under normal circumstances, he would be able to give the trial his undivided attention. But he was currently so busy with his work for the telephone company in the post-Katrina environment that he would not be able to concentrate during a three to four-day trial. Mr. Mathas said he also had plans to help his in-laws move residences. When questioned further about those obligations, Mr. Mathas said he thought arrangements could be made so that he could miss work, and, if family arrangements could be made, he would be able to give his full attention to the trial.

When defense counsel asked Mr. Mathas whether he understood defendant’s privilege against self-incrimination, Mr. Mathas responded that he understood the law, but that he personally would want to testify if he were charged with such a serious offense. He felt that someone charged with this type of crime should try to defend himself. Mr. Mathas further stated he would not hold it against someone if he did not want to take the stand in his own defense. Mr. Mathas said he understood that, if jurors mentioned defendant’s failure to testify during deliberations, the court would have to be notified.

When defense counsel challenged Mr. Mathas for cause, he argued only that Mr. Mathas’ outside obligations would affect his ability to concentrate on the evidence. The prosecutor countered that Mr. Mathas said he could be a fair and | .^impartial juror and that he could make arrangements to take care of his work and family issues. In denying defendant’s challenge for cause, the trial judge stated:

All right. The Court is not going to excuse Mr. Mathas. What I heard Mr. Mathas say is that although he had some things that, you know, he could be doing with i’egard to either his employment or with regard to having to meet a plumber, that it wasn’t a life threatening issue and that he would not allow it to distract from his duty in this case.

Defendant objected to the court’s ruling. He subsequently used a peremptory challenge to dismiss Mr. Mathas.

A defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal.* As the State points out, defendant only based his cause challenge of Mr. Mathas on the distractions arising from Mr. Mathas’ job and family obligations, and the trial court based its ruling on that argument alone. Accordingly, defendant did not preserve for appeal any of his other arguments regarding Mr. Ma-thas.

We find that the trial court did not err in denying defendant’s challenge for cause based on Mr. Mathas’ concern that his job and family obligations would prevent him from giving his full attention to the trial. Mr. Mathas ultimately indicated he could be a fair and impartial juror, and he believed he could find ways to handle his work and family duties so that he could focus his attention on the evidence at trial. We find no merit in this argument.

Prospective Juror Luisa Isaba

Defendant challenged prospective juror Luisa Isaba (“Ms. Isaba”) on the basis of a language barrier prevented her from serving effectively on a jury. The State responds that the record demonstrates Ms. Isaba’s English skills were good enough to qualify her for jury service. It appears she was able to understand the |2ilaw as it was explained to her and to effectively answer the questions she was asked.

Ms. Isaba stated she is married, has two children, and works as a housekeeper. Her husband is a taxi driver and law student. Ms. Isaba said no one in her family had been a victim of crime, and she did not know of any reason she could not be a fair and impartial juror. She said if the State met its burden of proving guilt beyond a reasonable doubt, she could return a verdict of guilty as charged.

Ms. Isaba said she is from Nicaragua. She does not read a lot of English, but she understands a lot of it. She said she thought she would be able to follow the trial and understand what was being said. She stated she was able to understand what the district attorney had said during voir dire. When the prosecutor asked her whether she would be able to read, on her own, any English language documents presented to her during trial, she answered, “Yes.”

Defense counsel challenged Ms. Isaba for cause, arguing there was a possible language barrier that would prevent her from understanding the trial proceedings. The prosecutor countered that Ms. Isaba had demonstrated a level of proficiency in English sufficient to effectively serve as a juror. In denying defendant’s challenge of Ms. Isaba, the trial court stated:

Ms. Isaba was read the qualifications for service as a juror. She did not indicate that she would have any difficulty with the English language. During the process of voir dire, she was also questioned about her ability with the English language. She said that she understood English, that she had understood everything that had been said to her so far.
And that if a document was presented to her in English, that she could read it. The Court will not excuse Ms. Isaba for cause.

|22In order to serve as a juror, a person must be able to read, write, and speak the English language and be possessed of sufficient knowledge of the English language. The question of a juror’s qualifications is addressed to the sound discretion of the trial judge within the bounds prescribed by law; and, although the trial judge’s ruling in these matters is subject to review, it will not be disturbed in the absence of clear abuse.

There is nothing in the record that shows the trial court abused its discretion in finding Ms. Isaba suitable to serve as a juror. In response to questioning, she stated several times that she was proficient enough in reading and in understanding the English language to understand the proceedings at trial. She said she understood what had gone on during voir dire. Her answers to the attorneys’ questions were appropriate and demonstrated her understanding of what was being asked. Since he saw and heard Ms. Isaba, the trial judge was in the best position to determine whether or not she was capable of serving on a jury.

Accordingly, the trial court did not err in denying any of the three challenges for cause at issue here. This assignment of error lacks merit.

For the foregoing reasons, we affirm defendant’s convictions and sentences.

AFFIRMED.

      . Mrs. Porter had left earlier for her job at a nearby nursing home.

      . State v. Hearold, 603 So.2d 731, 734 (La. 1992); State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 875, writ denied, 2005-0830 (La. 11/28/05), 916 So.2d 143.

      . Id.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . LSA-R.S. 14:30.1; See, State v. Lewis, 05-170 (La.App. 5 Cir. 11/29/05), 917 So.2d 583, 589-90, writ denied, 06-0757 (La. 12/15/06), 944 So.2d 1277.

      . LSA-R.S. 14:27.A.

      . State v. Hebert, 05-1004 (La.App. 5 Cir. 4/25/06), 930 So.2d 1039, 1046.

      . Id. at 1046-47.

      . LSA-R.S. 14:10(1).

      . State v. Graham, 420 So.2d 1126, 1127 (La. 1982); State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 95.

      . State v. Gant, 06-232 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1111, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599.

      . State v. Spears, 05-0964 (La.4/4/06), 929 So.2d 1219, 1224.

      . State v. Draughn, 05-1825 (La. 1/17/07), 950 So.2d 583, 593, cert. denied, - U.S. -, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).

      . Id. (quoting State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002)).

      . State v. Han'is, 07-124 (La.App. 5 Cir. 9/25/07), 968 So.2d 187, 193.

      . State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

      . LSA-R.S. 15:438.

      . State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722.

      . See, State v. Patterson, 588 So.2d 392 (La.App. 4 Cir. 1991).

      . State v. Theriot, 07-71 (La.App. 5 Cir. 6/26/07), 963 So.2d 1012, 1021, writ denied, 07-1598 (La.2/1/08), 976 So.2d 715.

      . LSA-R.S. 14:44.1.

      . State v. Issac, 97-497 (La.App. 5 Cir. 10/28/97), 702 So.2d 320.

      . LSA-C.Cr.P. art. 799.

      . State v. Lindsey, 06-255 (La. 1/17/07), 948 So.2d 105, 107; State v. Mickel, 07-47 (La.App. 5 Cir. 5/29/07), 961 So.2d 516, 522, writ denied, 07-1422 (La. 1/7/08), 973 So.2d 732.

      . State v. Campbell, 06-0286 (La.5/21/08), 983 So.2d 810, 856; State v. Hensley, 04-617 (La.App. 5 Cir. 3/1/05), 900 So.2d 1, writ denied, 05-0823 (La.6/17/05), 904 So.2d 683.

      . Lindsey, supra; Hensley, supra.

      . State v. Campbell, 983 So.2d at 856.

      . State v. Mickel, 961 So.2d at 522-23.

      . State v. Harris, 01-2730 (La.1/19/05), 892 So.2d 1238, 1261, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).

      . State v. Lindsey, 948 So.2d at 107-08 (citations omitted).

      . State v. Browning, 06-929 (La.App. 5 Cir. 4/11/07), 956 So.2d 65, 72.

      . See, State v. Lutcher, 96-2378 (La.App. 1 Cir. 9/19/97), 700 So.2d 961, writ denied, 97-2537 (La.2/6/98), 709 So.2d 731.

      . LSA-C.Cr.P. art. 401.A(3).

      . State v. Scott, 278 So.2d 121 (La.1973).