author: McClendon, j.

text:
    Joe E. CONACHEN, Martha S. Cook, Alton Wayne Busby, Louis Lirette, Raymond Albert, Sr., Shonda Brock, Lecil Miller, Valarie Beck Miller, Candice Callicott, Bertha Jackson, Clara H. Wicker, Carolyn W. Stevens, Earl Langlois, Beverly Hayden, Barbara H. Conachen, Genevieve O’Sullivan, Gary Mitchell, Michelle Vona, Wiley D. Iverstine & Jill Taylor v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2009 CA 0100.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Mark D. Plaisance, Baker, Louisiana, for Plaintiffs/Appellants, Joe E. Conachen, et al.
    Harold J. Adkins, Baton Rouge, Louisiana, for Defendant/Appellee, East Baton Rouge Parish School Board.
    Before DOWNING, GAIDRY, and McClendon, jj.
   McClendon, j.

12Plaintiffs, former employees of a parish school board, appeal a trial court’s ruling granting the board’s motion for summary judgment, finding that the school board did not abuse its authority and discretion in allocating surplus proceeds from a 1998 sales tax proposition. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1998, the voters of East Baton Rouge Parish (EBR) approved a one-cent sales tax proposition, which dedicated 41% of the revenue to increase the compensation of teachers and other school board employees. The proposition approved by the voters read:

For the purpose of assisting the East Baton Rouge Parish School Board (the “School Board”) in increasing compensation of the School Board’s teachers and other school system employees in the East Baton Rouge Parish Educational Facilities Improvement District, Louisiana (the “District”), as set forth in and subject to “A plan to improve Facilities/Technology, Discipline and Compensation in the East Baton Rouge Parish School System” (the “Plan”) approved by the School Board on August 13, 1998, shall the District, under La. R.S. 33:2740.35 and other constitutional statutory authority, be authorized to levy and collect a tax of [sic] not to exceed 40-1/100 of one percent (0.41%)(the “Tax”) upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use of consumption of tangible personal property and on sales of services in the District, all is defined in [La.] R.S. 47:301 through 47:317, for a period ending five (5) years from the Tax effective date, except that the sale at retail, use, consumption, and distribution, and storage for use or consumption of food and prescription drugs shall be exempted from the Tax, with Tax proceeds (after paying costs of collection and administration) to be dedicated for the purpose listed above?

Following passage of the tax proposition, the EBR School Board increased the pay of its teachers and support personnel.

Despite the pay increases, a surplus grew in the tax revenue fund. As a result of the surplus, the School Board decided to pay its employees a “supplement.” On November 11, 2002, the School Board voted to give certified employees $500 and support workers $300. Payment was made on December 17, 2002, to all employees employed as of November 15, 2002. One year later, on November 20, 2003, the School Board voted to give all employees $900. The IsSchool Board elected to make the payment on December 18, 2003, to all employees employed as of October 31, 2003.

On April 13, 2004, plaintiffs, former employees in the EBR school system, filed suit seeking the supplemental pay. Plaintiffs alleged that although they were no longer employed by the School Board in 2002 and 2003 when the employment cutoff dates were set and the salary supplements were paid, they were entitled to receive the supplemental pay because they were employed when the tax was passed and collected.

On August 1, 2008, the plaintiffs filed a motion for summary judgment. On September 26, 2008, the School Board responded with its own motion for summary judgment, urging that that it acted within its discretion in determining the timing, method, and manner of the allocation of the sales tax proceeds.

On October 17, 2008, the trial court signed a judgment granting the School Board’s motion for summary judgment and dismissing, with prejudice, all of the plaintiffs’ claims. Plaintiffs have filed the instant appeal contending that the trial court erred in granting the School Board’s motion for summary judgment.

STANDARD OF REVIEW

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of |4Iaw. Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-0023, p. 5 (La.6/26/09), 17 So.3d 350, 353. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B); Costello v. Hardy, 2003-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137.

DISCUSSION

The proposition approved in the 1998 election constitutes a full and complete dedication of the avails or proceeds of the tax and its provisions shall control the allocation and expenditure thereof. LSA-R.S. 33:2723. The explicit wording of the tax proposition requires the School Board to use the tax proceeds to increase the compensation of teachers and other school system employees. See LSA-R.S. 33:2714. However, while the proposition indicated that the funds would be utilized for increased compensation, it failed to specify the manner in which the School Board should determine the amount of compensation or the manner in which any potential surplus would be allocated.

Plaintiffs aver that Louisiana law is silent on how the School Board should allocate the surplus funds, and contends that the court should proceed according to equity or under a theory of unjust enrichment to afford those persons employed at the time the surplus was accrued a share of the allocation of the surplus funds. Plaintiffs assert that the dates chosen by the School Board were arbitrary. They argue that a person employed initially on October 31, 2003 (the first day of work) could receive a supplement in December 2003, while a person who had been employed for several years over the course of the tax collection, but' whose last day of employment was on October 30, 2003, could not receive a supplement in December 2003.

The ordinance imposing said tax, and any amendments thereto, shall specify the purpose or purposes for which said tax is imposed. The revenues derived from said tax shall be dedicated and used solely for said purposes.

| ¿Louisiana Revised Statutes 17:81 provides school boards with authority and general powers to make rules and regulations for their own government:

Each city or parish school board is authorized to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the State Board of Elementary and Secondary Education, as it may deem proper.

LSA-R.S. 17:81(C). One of those powers includes hiring teachers and fixing their salaries. LSA-R.S. 17:81(A)(1). Title 17 also authorizes the school boards to hire other support workers and fix their salaries. See LSA-R.S. 17:84 and 17:84.1. Since it is a school board’s function to fix the salaries of school employees in general, the common understanding of the tax proposition should be that a school board should also have the discretion to allocate the proceeds of the sales tax to supplement such salaries. Richland Parish Bus Drivers Ass’n v. Richland Parish Sch. Bd., 420 So.2d 696, 698 (La.App. 2 Cir.1982).

In Richland Parish Bus Drivers Ass’n, the school board adopted an allocation formula for proceeds derived from a sales tax dedicated to supplement the salaries of school employees. Suit was filed to challenge the allocation formula with regard to its allocation of 80% of the sales tax to certified teachers and 20% to noncertified personnel. The court found that since the proposition did not dictate how the school board should allocate the proceeds of the sales tax, other than to specify whose salaries are to be supplemented, the proposition leaves the allocation of the proceeds to the discretion of the school board. Richland Parish Bus Drivers Ass’n, 420 So.2d at 698. Given that the record reflected that noncertified personnel such as bus drivers work on the average of 1 1/2 hours a day while certificated personnel, including classroom teachers, often work in excess of seven hours a day, the appellate court could not find that school board abused its discretion by allocating a larger share of the revenue to certified personnel. Id. at 699.

In Louisiana Ass’n of Educators v. St. Tammany Parish Sch. Bd., 430 So.2d 1144 (La.App. 1 Cir.), writ denied, 435 So.2d 429 (La.1983), the plaintiffs attempted to compel a school board to allocate sales tax proceeds in fiaccord with the information and advertisements used in campaigning for passage of the tax. However, we determined that where the tax proposition did not contain a specific allocation, it was within the discretion of the school board to determine how to allocate the proceeds of the tax. A court is not permitted to substitute its discretion for that of the school board. Courts should not interfere with a school board’s management of school affairs, unless there is a clear showing of abuse of the authority granted to the board. Id. at 1150. The Louisiana Supreme Court in State ex. Rel Rathe v. Jefferson Parish Sch. Bd., 206 La. 317, 362-63, 19 So.2d 153, 167-68 (La.1943)(on rehearing), stated:

It is indisputable that the jurisprudence of this State is settled beyond doubt that where a statute creates a Board and grants to it certain administrative and executive functions and responsibilities, the courts will not interfere with the bona fide judgment of the Board based upon substantial evidence. It is only where the complainant shows there has been an invasion of his rights by the Board exceeding its powers or doing him an injustice that the courts have set aside the actions of the Board[.]

Because this court found that no abuse had been shown in the manner in which the school board allocated the proceeds of the tax, we affirmed the district court’s judgment dismissing plaintiffs’ demands.

The proposition in the instant case indicated that the funds would be utilized for “increasing compensation of the School Board’s teachers and other school system employees” and the funds were used for that purpose. Plaintiffs do not dispute that they received a raise following the passage of the tax, but are challenging them failure to receive a “supplement” as a result of the surplus accumulated during their employment with the School Board. However, plaintiffs have failed to cite any legal authority that mandates that a surplus be paid in this manner.

17Because the proposition was silent as to the timing, method, and manner of payment, such was left to the discretion of the School Board. In support of its motion for Summary Judgment, the School Board introduced the affidavit of Charlotte Placide, the Deputy Superintendent for Operation and Budget Management of the EBR School System from June 2000 through May 2004, who attested that the distribution dates were determined once the annual financial audits were finalized, with a validation of available funds and with proper notification and approval of the

Oversight Committee and the School Board. The School Board also introduced the affidavit of Conrad Chapman, a Certified Public Accountant who has worked with municipalities (including a school board) performing audits and other financial consulting matter, who attested that the School Board’s actions in determining when and to whom the salary supplement shall be allocated were consistent with accepted accounting practices and that nothing required that funds collected by virtue of a sales tax be distributed the same year in which they are collected.

In granting the School Board’s motion for summary judgment, the trial court reasoned:

[T]he cases I’ve looked at indicate I’m not permitted to substitute my opinion or discretion for that of the school board, and, probably more importantly, I’m not even, as a court, permitted to interfere with the school board’s management of the schools’ affairs absent what the jurisprudence holds is a clear showing of abuse of discretion and authority that’s been granted. And here, as I look at the information that has been provided to the Court, the inescapable conclusion I come to is that the record is void of evidence of abuse of discretion or authority on the part of the board. And to the contrary, I look to Ms. Placide’s affidavit and I look at Mr. Chapman’s affidavit, and they show the basis of the board’s decision to give the November 15, '02, and the October 31, '03, cutoff dates. I mean, this does not appear to be dates that they just pulled out of the air, but based on accounting and review of the funds on hand the appropriate time for that allocation of the surplus.

We agree with the trial court’s analysis and find that the School Board provided a valid basis for its decision. We also note that it would be difficult to require the IxSchool Board to locate former employees of the system in order to pay a supplement, assuming same is not constitutionally prohibited. Additionally, the tax was specifically designed to increase compensation of teachers and other system employees in an apparent effort to attract and keep qualified employees. Paying former employees a “supplement” would not serve this purpose, but rather would be similar to severance pay. Plaintiffs have not demonstrated any genuine issue that the School Board abused its authority and discretion in disbursing the surplus funds. Accordingly, the trial court properly granted the School Board’s motion for summary judgment.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment granting the motion for summary judgment filed on behalf of the School Board. Costs of this appeal assessed against the plaintiffs.

AFFIRMED.

      . On January 9, 2006, the trial court signed a judgment certifying this matter as a class action, and designated two separate classes as follows:
      Those individuals employed by the East Baton Rouge Parish School Board from April 13, 2001 until November 15, 2005, who were either discharged, terminated or resigned or otherwise no longer employed by the EBR School Board on November 15, 2002 and who did not receive the supplement paid by the board in December 2002. (Subclass A)
      Those individuals employed by the East Baton Rouge Parish School Board from November 15, 2002 until October 31, 2003, who were either discharged, terminated, or resigned or otherwise no longer employed by the EBR School Board on October 31, 2003 and who did not receive the supplement paid by the board in December 2003. (Subclass B)

      . The trial court denied plaintiffs’ opposing motion for summary judgment.

      . Louisiana Revised Statutes 33:2714 provides:

      . Plaintiffs point out that the Attorney General, in response to a request by a school superintendent under a different sales tax proposition, has opined that retired school system employees were entitled to their proportionate share of an approved sales tax because the retirees were still actively employed when the revenue was accumulated, but not collected. See La. Atty. Gen. Op. No. 91-439 (1991). However, we note that Attorney General opinions are merely advisory and not binding authority. See City of New Orleans v. Bd. of Directors of the Louisiana State Museum, 1998-1170, p. 6, n. 11 (La.3/2/99), 739 So.2d 748, 753, n. 11.

      . We note that our review on appeal of a summary judgment is de novo, and therefore the trial court's reasons or decision is not entitled to deference. However, our de novo review is fully in accord with the result reached by the trial court.


source: Caselaw Access Project

author: McDonald, j. KUHN, J., PARRO, J.,

license: Public Domain

text:
    RADCLIFFE 10, L.L.C. v. ZIP TUBE SYSTEMS OF LOUISIANA, INC., Burger Engineering L.L.C., Ronald Burger and Bryan Burger. Burger Engineering, L.L.C. v. Radcliffe 10, L.L.C. and James M. Radcliffe.
    Nos. 2009 CA 0417, 2009 CA 0418.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 29, 2009.

      Joseph L. McReynolds, Kerrie T. Bel-some, Isaac H. Ryan, New Orleans, Louisiana and Tom Thornhill, Slidell, Louisiana, Attorneys for Defendants/Appellants/Zip Tube Systems of Louisiana, Inc., et al.
    Craig J. Robichaux, Mandeville, Louisiana, and Mark S. Goldstein, Alicia M. Ben-dana, New Orleans, Louisiana, Attorneys for Plaintiff/ Appellee and Defendants/Appellants/Radcliffe 10, L.L.C.
    Before PARRO, KUHN and McDonald, jj.
   McDonald, j.

lain October 2008, a petition to declare an amended final judgment an absolute nullity was filed in the Twenty-Second Judicial District Court. After a hearing, the trial court found that the challenged judgment was not null. The matter before us is an appeal of that decision.

FACTS

The proceedings in this matter were instituted in August 2003, when a petition was filed by appellee in this appeal, Radcliffe 10, L.L.C. (hereinafter Radcliffe), for damages for breach of contract and unfair trade practices against Zip Tube Systems of Louisiana, Inc., Burger Engineering, L.L.C., Ronald Burger, and Bryan Burger, the appellants in this matter. In October 2003, appellants (hereinafter Burger) filed a petition for damages for breach of contract against Radcliffe. The suits were subsequently consolidated and were actively and acrimoniously pursued through a trial held on February 10, and 11, and April 4, 5, and 6, 2005.

On July 1, 2005, thirteen pages of written reasons finding in favor of Radcliffe were mailed to counsel for the parties. Prior to the signing of a judgment, Burger filed a motion to recuse the trial judge. The judge assigned to hear the matter ruled that the motion, filed after the conclusion of the trial on the merit s, was untimely. Writs were filed, which were denied by this court. The supreme court granted writs and remanded the matter to the trial court for a hearing on the recusal motion. After a full hearing, the assigned judge denied the recusal motion. Thereafter, a judgment on the merits of the trial was signed by the original trial judge on March 23, 2007.

On March 29, 2007, the trial judge vacated the March 23, 2007 judgment, stating that the judgment had been signed through clerical error. The original | judgment failed to award any general damages. The trial judge signed a judgment on March 29, 2007, substantially similar to the earlier judgment, but vacating that judgment and ordering Burger to pay general damages in the amount of $3,428,000.00. This judgment conformed to the judge’s written reasons issued June 24, 2005.

On March 30, 2007, Radcliffe filed a motion for a new trial “solely for the purpose of allowing the Court to issue a new judgment properly reflecting all of the damage elements contained in its Reasons for Judgment dated June 24, 2005.” The motion was denied as moot.

On April 30, 2007, Burger filed a motion and order for suspensive appeal of the March 23, 2007, and March 29, 2007 judgments. The appeal, converted to a devolu-tive appeal, was heard by this court, and a judgment was rendered that affirmed in large part the district court judgment. Burger filed a request for rehearing that, among other issues, contended that the March 29, 2007 judgment was null. The request was considered and denied. Burger also alleged the nullity of the March 29, 2007, judgment as an error in their application for writ to the supreme court; the supreme court denied the writ of review.

A flurry of proceedings followed: bankruptcy, garnishment, motion for judgment debtor rule, motion to quash records deposition, and a motion to declare the amended final judgment an absolute nullity. On October 9, 2008, Burger filed a petition to declare the amended final judgment an absolute nullity. On November 13, 2008, a consolidated hearing was conducted on several matters, including the issue of the nullity of the March 29, 2007 judgment. The trial court rendered judgment in favor of Radcliffe and against Burger, declared that the judgment was not a nullity, and found that the judgment on the sole legal issue of |sthe nullity of the judgment was a final judgment under C.C.P. article 1915(B), and there was no just reason for delay of the appeal.

Burger appeals, raising two assignments of error: (1) the district court erred in refusing to declare the amended final judgment signed on March 29, 2007, an absolute nullity, and (2) the district court erred in dismissing the petition for nullity and denying two related motions filed to prevent execution of the null judgment.

DISCUSSION

Burger contends that the March 29, 2007, judgment is an absolute nullity. The law on the procedure for an action of nullity of judgments controlling the issue before us is found in Louisiana Code of Civil Procedure articles 2001 through 2006. Specifically, article 2005 provides:

A judgment may be annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.
A judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court. (Emphasis added)
An action of nullity does not affect the right to appeal.

The first paragraph of Article 2005 codifies an exception to the general rule, under La. C.C.P. art. 2088, that a trial court is divested of jurisdiction when an appeal is filed. New Orleans Redevelopment Authority v. Lucas, 02-2344 (La.App. 4 Cir. 8/25/04), 881 So.2d 1246, 1252, writ denied, 04-2755 (La.1/28/05), 893 So.2d 75. It authorizes a litigant to seek direct relief in the trial court to annul a judgment before or pending an appeal, or after the delays for appealing have elapsed.

The March 23, 2007, and the March 29, 2007 judgments were in the record, when the earlier appeal to this court was considered, and in fact, Burger appealed both judgments. Therefore, Article 2005 seems to prohibit adjudication of an faction for nullity. Burger, however, presents several strenuous arguments, which we will carefully consider.

Burger contends that it does not matter that an appellate court or even the supreme court has previously affirmed the null judgment on its merit s, citing Tracy v. Dufrene, 240 La. 232, 121 So.2d 843 (1960). The facts of Tracy are clearly distinguishable, and any inferences that may be suggested by its holding do not support the result Burger seeks. The facts of our case are that this court reviewed the record containing the two judgments, and a writ was taken to the supreme court asserting error by this court in not declaring the March 29, 2007 judgment null, but the writ was denied. It is clear that there are circumstances wherein review, or even a writ denial, by the supreme court may prevent further consideration of a judgment. “Even though a writ denial is indicative of this Court’s decision not to exercise its discretionary jurisdiction ... the effect of a writ denial nonetheless brought the litigation to a close and precludes a collateral attack of that judgment.” Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732 (La.1/19/05), 903 So.2d 392, 406 n. 13. We see nothing in the Tracy decision that leads us to conclude this action for nullity is proper.

Burger further argues that objections to judgments which are absolutely null can be “interposed at any time and anywhere by the party against whom it is asserted,” citing Frisard v. Autin, 98-2637 (La.App. 1 Cir. 12/28/99), 747 So.2d 813, 819, writ denied, 00-0126 (La.3/17/00), 756 So.2d 1145. The vices of form that mandate nullity of a judgment are established in La. C.C.P. art. 2002, which provides:

A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to 1 jurisdiction, or against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.
Article 2003 provides:
A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.

These articles govern the bringing of an action for nullity of judgments. By law, they present limitations to bringing the nullity action. Therefore, an unqualified statement that the action can be brought at any time is overly broad.

Relying on Weller v. Brown, 01-0314 (La.App. 1 Cir. 3/28/02), 813 So.2d 635, 638, Burger argues that even though the ground for nullity appears in the record, a separate, later action for nullity can be maintained because Article 2005 requires the ground for nullity to appear in the record and for the court to have considered it. We do not find that the Weller case establishes that proposition of law. The law is clear that either of the conditions in Article 2005 may prohibit maintenance of a nullity action. As the supreme court recently reiterated in Thibodeaux v. Donnell, 08-2436 (La.5/5/09), 9 So.3d 120, 125, “it is clear that the statute provides for two different scenarios ... the disjunctive word ‘or’ is a clear, unambiguous term whose use between two provisions makes alternative events.” Although the supreme court was considering a different statute, the proposition of law is generic and applicable here.

| «Moreover, the Fourth Circuit Court of Appeal noted in New Orleans Redevelopment Authority, supra, that Paragraph two of Article 2005 limits a litigant’s right to bring a subsequent nullity suit, citing Weller v. Brown. “The jurisprudence has construed Article 2005 as providing two exclusive, disjunctive grounds for annulling a judgment that an appellate court has rendered; to wit: (i) when the ground for nullity was not in the record of appeal, or (ii) when the ground for nullity was not considered by the appellate court. Meldean’s Inc. v. Rivers, 410 So.2d 837, 839 (La.App. 3rd Cir.1982) (describing grounds as exclusive); Weller, 2001-0314 at p. 5, 813 So.2d at 638 (describing grounds as disjunctive).”

Burger also argues that because the March 29, 2007 judgment contains a substantive amendment, it is rendered absolutely null. We have reviewed a substantial body of jurisprudence wherein the use of the term “absolutely null” was used in describing a judgment found to be null, because it substantively altered a prior judgment without following the “proper procedure.” We rely on the Tracy case here to recall that verbiage in a case may be prompted by the particular facts of that ease and is often dicta. In Tracy, supra, the supreme court noted that the two cases on which the district court relied were distinguishable, saying, “those two cases, while using strong language which the judge, no doubt, had good reason to believe was controlling, are contrary to the later jurisprudence and are otherwise distinguishable.” This case is distinguishable from other jurisprudence relying on La. C.C.P. art. 1951, in that two appellate courts have rejected Burger’s argument that the judgment is null. Therefore, La. C.C.P. art. 2005 is controlling in this matter.

Moreover, we also reject the argument that annulment is required under jurisprudence interpreting La. C.C.P. art. 1951. Louisiana Code of Civil Procedure article 1951 provides:

IflA final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

This procedural article specifies that a trial court may alter the phraseology, but not the substance, or correct errors of calculation in a judgment at any time, with or without notice, by the court on its own motion or on motion of any party. The article does not address what procedures are necessary to make a substantive change to a judgment, nor that a substantive amendment to a judgment renders the judgment a nullity.

It is well-established in the jurisprudence that judgments that add to or subtract from a judgment are substantive amendments that cannot be made without following the “proper procedure.” However, the proper procedure for a trial court to correct its own error has not been definitely established. In Lousteau v. K-Mart Corp., 03-1182 (La.App. 5 Cir. 3/30/04), 871 So.2d 618, writ denied 04-1027 (La.6/25/04), 876 So.2d 835, reconsideration denied, 04-1027 (La.9/03/04), 882 So.2d 593 this issue was considered by our wise brethren on the Fifth Circuit Court of Appeal. We find their discussion informative:

Initially, K-Mart urges that the court erred in vacating the December judgment, correctly urging that amendment or revision of a judgment is limited to correcting errors of calculation or phraseology. La. C.C.P. art. 1951. We are referred to a case in which our Supreme Court found that a judgment signed by the same judge, in similar circumstances, could not be altered, notwithstanding that it was signed in error. That case is distinguishable on its facts. In Bourgeois, the judgment in favor of the defendants was signed on November 6, 2001, with notice issued on November 29, 2001. Plaintiff received the notice and rather than move for new trial, filed for an appeal on January 15, 2002. On that same day, the court issued a second judgment in favor of the plaintiff, and later issued an order stating it had inadvertently signed the first judgment. In that case, unlike the matter before us, the time for granting of a new trial was long past. Under La. C.C.P. art. 1971, a new trial may be granted, upon contradictory motion of any party or by the court on its \wown motion, to all or any of the parties and on all or part of the issues. C.C.P. art. 1974 grants seven days, exclusive of holidays, in which a new trial may be granted. The recordation of the trial court that it signed the first judgment in error, within the time frame permitted for granting a new trial, persuades us that the January judgment is not invalid as an impermissible amended judgment. Lousteau, 871 So.2d at 620,

The court then considered the appeal of the amended judgment.

It is unclear what the use of the term “absolutely” applied to null judgments is meant to convey. There are four effects that generally accompany the legal concept of absolute nullity. It is void ab initio; may not be confirmed; is impre-scriptible; and the nullity may be noticed by the court on its own motion. These principles derive from the Civil Code articles governing absolutely null contracts. See La. C.C. art. 2030, 2032, and 2033. Judgments that may be annulled are governed by other principles, not the least of which is the necessity for finality of judgments.

While the distinction between a null judgment and an absolutely null judgment is not apparent, it is clear that the provisions applicable to absolutely null contracts should not be grafted onto “absolutely null” judgments. Among the reasons this is true is the fact that the essence of a contract and of a judgment are antithetical. A contract is an agreement among parties that creates obligations. A judgment is a judicially imposed order obligating parties that are not in agreement. A judgment found to have no legal effect may be designated as null, without the use of the term “absolutely,” which adds nothing to its legal effect and generates the confusion we find here.

Further, the legislature has not provided in either La. C.C.P. art. 1951 or in the articles on annulling judgments for an “absolutely null judgment.” The law on nullity of judgments, as provided heretofore, clearly establishes that judgments are [ unot void ab initio, because one may lose the right to seek nullity under the circumstances provided in La. C.C.P. art. 2003. Also,' jurisprudence has established that the parties may consent to a substantive amendment of a judgment. See Villaume v. Villaume, 363 So.2d 448 (La.1978).

We are also mindful that the primary objective of all procedural rules should be to secure to parties the full measure of their substantive rights. Fraternal Order of Police v. City of New Orleans, 02-1801 (La.11/8/02), 831 So.2d 897, 899. Rules of procedure exist for the sake of substantive law and to implement substantive rights, not as an end in and of itself. Unwired Telecom, 903 So.2d at 401. “Procedure should always be indeed the ‘handmaiden of justice.’ ” Id. A finding that the March 29, 2007 judgment was “absolutely null,” would effectively reverse the decision of the trial court by depriving Radcliffe of the damages the district court judge awarded after trial, and result in a judgment against Radcliffe for $850,000.00. This result, which Burger insists the jurisprudence requires, would be a perversion of justice and would make a mockery of the trial court.

The facts here are distinguishable from any of the cases we have reviewed, not only because of the fact that an appeal had been taken of the now challenged judgment, but also because the amended judgment conforms to written reasons issued by the trial court after five days of trial and was corrected by the trial court within the seven days in which a new trial could be granted. Furthermore, Radcliffe did file a motion for a new trial in order to effect this change. Although the jurisprudence establishes that the correction made here was substantive, the trial court vacated the March 23, 2007 judgment because it contained a substantive error. The judgment signed by the trial court on March 29, 2007 expressly states that it is rendered to correct a clerical error in the earlier judgment. Burger contends that the fact that the trial court was correcting an error has no legal significance, relying on Bourgeois v. Kost, 02-2785 (La.5/20/03), 846 So.2d 692.

liaAs noted heretofore, the Fifth Circuit distinguished Bourgeois in Lousteau, for reasons that we find equally compelling. Further, the purposes for which the “harsh result” in Bourgeois is required do not exist in this case. No legitimate purpose is served by requiring the nullity of a substantively corrected judgment made by a trial court to correct its own error within the delays allowed for a new trial, or even for the delay in which one may file for a suspensive appeal because the judgment may not be executed until then. However, we do not directly address the issue of the proper procedure for a trial court to correct a substantive error because it is not necessary for a decision in this case.

CONCLUSION

We find that La. C.C.P. art. 2005 is controlling in this matter, and that the article prohibits maintaining an action for nullity. Therefore, the judgment decreeing that the March 29, 2007 judgment is not a nullity is affirmed. Costs are assessed to the appellant.

AFFIRMED.

KUHN and PARRO, JJ., concur and assign reasons.

KUHN, J.,

concurring.

11 Defendants effectively waived their entitlement to nullity relief for the amended final judgment by failing to assert the impropriety of the March 29, 2007 amendment in the prior litigation because both the March 23 and March 29, 2007 judgments were contained in that earlier record. La. C.C.P. art. 2005. Whether the principles that govern absolutely null contracts are applicable to null judgments is not an issue before this court in this appeal and, therefore, any discussion is merely dicta. Accordingly, I concur in the affir-mance of the trial court’s judgment.

PARRO, J.,

concurring.

11While I agree only with the result reached in this case, I am concurring in order to clarify what I believe is the legally correct reason for reaching that result.

The first judgment of the trial court on March 23, 2007, was a final judgment, pursuant to LSA-C.C.P. art. 1841. It was signed by the judge, disposed of the merits of the case, and was noticed to the parties. The second judgment on March 29, 2007, made a major substantive change, which is not allowed by Article 1951. Since there is no authority for the trial court to make such a change and, in fact, such a change is strictly prohibited unless proper procedures are followed, the jurisprudence has consistently established that such a substantively amended second judgment is an absolute nullity.

However, when an absolutely null judgment has been previously affirmed on appeal, as in this case, the second paragraph of Article 2005 allows the annulment of such |2a judgment under only two circumstances: (1) when the ground for nullity did not appear in the record of the appeal, or (2) when the ground for nullity was not considered by the appellate court. In this case, neither of those circumstances exist.

At the time the second judgment was affirmed by this court on appeal, both of the trial court’s judgments appeared in the record, and the substantive nature of the change in the second judgment was apparent. Also, although neither party briefed the nullity issue at that time and this court’s opinion did not refer to the first judgment or to the nullity issue, the absolute nullity of the judgment was specifically raised as a grounds for rehearing in the rehearing application. As to that issue, the rehearing application was denied. Therefore, since this court considered the arguments that the judgment should be annulled, it cannot reconsider that same ground of nullity in this appeal.

Therefore, I respectfully concur.

      .The suits also prayed for injunctive relief. The procedural background recited here is very abbreviated and only includes information necessary for an understanding of the appealed issue.

      . Radcliffe 10, L.L.C. v. Zip Tube Systems of La., Inc. 07-1801, 07-1802 (La.App. 1 Cir. 8/29/08), 998 So.2d 107, rehearing denied in part, and granted in part.

      . Radcliffe 10, L.L.C. v. Zip Tube Systems of La. Inc. 09-0024 (La.3/13/09), 5 So.3d 120.

      . These articles were included in the Code of Civil Procedure when it was originally enacted in 1960 and are substantially similar to the source articles in the Louisiana Code of Practice. The Louisiana Code of Practice, Article 606, provided for vices of form for which a judgment could be annulled. The “vices of form” were substantially similar; however in addition to an incompetent person not represented as required by law, it included a married woman without the authorization of her husband or of the court.

      . Apparently, Burger is suggesting that "considered it” means it was specifically raised as an error in the original appeal.

        . Bourgeois v. Kost, 2002-2785 (La.5/20/03), 846 So.2d 692.

      . Stipulated judgments are an exception to this rule.

      . Louisiana Code of Civil Procedure article 3953 governing nullity of judgments in divorce actions does provide that judgments not rendered in accordance with certain requirements are absolutely null.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Michele RAMIREZ.
    No. 09-KA-350.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Jr., Thomas S. Block, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON, Judges.
   JUDE G. GRAVOIS, Judge.

|2Pefendant, Michele Ramirez, appeals her conviction of manslaughter, a violation of LSA-R.S. 14:31. For the reasons that follow, we affirm.

PROCEDURAL HISTORY AND FACTS

A Jefferson Parish Grand Jury indicted defendant, Michele Ramirez, for second degree murder of Edwina Ulfers in violation of LSA-R.S. 14:30.1. She pled not guilty and filed several pre-trial motions, including motions to suppress the evidence and statement, which were denied after hearings. She proceeded to trial on November 10, 2008. After a four-day trial, a 12-person jury found defendant guilty of the lesser charge of manslaughter. The trial court sentenced defendant to 40 years at hard labor. She timely appealed her conviction.

On appeal, defendant raises the following assignments of error:

|;il. The trial court erred in denying the defense’s right to present a defense regarding a statement made by the victim to a trial witness right before the actual attack happened.
2. The trial court erred in allowing hearsay evidence under the guise of a “dying declaration” made by the victim.
3. The trial court erred in failing to grant a mistrial when the defense only learned at trial during the state’s direct exam that a witness had been a paid informant of the JPSO for years and thus was an agent of the state.
4. The trial court erred in allowing an excessive number of gruesome photos of the victim into evidence that were merely cumulative and prejudicial to the defense in that they were used solely to pander to the jury’s sympathy.
5.The evidence was insufficient to support the verdict of manslaughter since identity was not proven beyond a reasonable doubt.

On August 30, 2006, Officer Peter Caza-lot with the Jefferson Parish Sheriffs Office responded to an emergency call involving an aggravated burglary at 417 Shrewsbury Court in Jefferson Parish. He immediately responded to the scene, which was two blocks from his location. When he arrived, he saw a man, Joseph Ulfers, sitting on the porch, and an elderly female, Edwina Ulfers, lying on the living room floor. Mrs. Ulfers, age 94, was covered in blood and was bleeding from the back of her head. Her face and eyes were swollen.

Officer Cazalot secured the house and called for an ambulance because of Mrs. Ulfers’ injuries. He noted the house was ransacked. Officer Cazalot helped Mrs. Ulfers sit up. She told him she was beaten with a telephone by a female wearing black pants and a sleeveless shirt. Officer Cazalot immediately put the description of the perpetrator out over his police radio so that police units en route to the scene could canvas the area and look for the perpetrator. He called a second time for an ambulance as he noticed Mrs. Ulfers’ condition deteriorating.

Mrs. Ulfers was ultimately transported to Ochsner Hospital. That night at the hospital, Mrs. Ulfers told Deputy Anthony Bennett that she was sitting in her bedroom chair when a white female entered the room, grabbed her by the throat, |4and demanded money. Mrs. Ulfers said she stood up out of her chair at which time the female grabbed the telephone off of her dresser and repeatedly hit her in the head with it, causing her to fall to the floor. Mrs. Ulfers saw the female grab another object, which Mrs. Ulfers could not identify and which the female used to hit her again. Mrs. Ulfers told Deputy Bennett that she then crawled from the bedroom to the living room.

Joseph Ulfers, the victim’s son, stated that prior to the incident, a woman whom he later identified as defendant came to the back door of his residence looking for a friend and asked to use the bathroom. Defendant was allowed to enter the home, but was not allowed to use the bathroom. Defendant then asked for a drink of water, which Mr. Ulfers gave her. After defendant left at his request, Mr. Ulfers checked on his elderly mother, who was sleeping in her bedroom, and then got a beer and sat out on his front porch. He next heard his mother yelling for him and found her on the living room floor bleeding profusely from her head.

According to Mr. Ulfers, his mother told him that the woman they gave water to had come back and hit her. Mr. Ulfers called 911 from his cell phone because he could not find the phone in his mother’s bedroom. He stated everything in his mother’s room was a mess. Mr. Ulfers noted that $20 cash and a checkbook were taken from the house.

Meanwhile, later that evening, defendant had been detained in the 900 block of Shrewsbury Road after fitting the description of the perpetrator who had earlier been described by Deputy Cazalot over his police radio. The police then took Mr. Ulfers there to see if he could identify the person detained. Defendant had what looked like dried blood on her right foot and scratches on her right palm and on the back of her legs. Mr. Ulfers, who was in a patrol car, was driven past defendant and positively identified defendant while she stood in front of a patrol car as the | .¡person who had earlier been to his residence. Mr. Ulfers noted that defendant was wearing the same shirt she had been wearing when she was at his house, but she was wearing different pants.

Defendant was advised of her rights and evidence was collected from her person. The blood on her foot was found to be consistent with the victim’s DNA. Defendant waived her rights and gave a few statements to the police. At the location of her arrest, defendant denied being at the victim’s house on Shrewsbury Court. In a later statement made at the detective bureau, however, defendant admitted to going to the victim’s house. She stated that she met Mr. Ulfers at a gas station and went back to his house “to turn a trick” with him. She then said that she simply drank a beer with him. The next day, defendant gave another statement, which was taped, to the police. In this taped statement, defendant stated that she and a girl named Sunny met Mr. Ulfers at a Spur station, and that Sunny was “going to trick the guy” at his house. Defendant explained that Mr. Ulfers left them in a back area outside the house, after which she and Sunny went inside the house to find money. Defendant stated that she then saw Sunny start beating the victim so she ran out of the house.

Sunny Williams testified at trial and denied ever going to the victim’s house. Sunny stated she had not seen defendant since the two were arrested together in June 2006 for possession of cocaine and drug paraphernalia. Sunny’s DNA was not found on anything at the victim’s house.

Defendant’s jail cellmate, Christine Newman, testified that defendant told her about the incident while they were in jail together. According to Newman, defendant told her she was going to the victim’s house to “turn a trick.” Defendant also told her she beat a lady, who was lying in chair, with a phone. Another inmate, Trudy Hotard, also testified that defendant told her she hit the victim with |,;a phone. Both Newman and Hotard stated that defendant did not mention the involvement of a second person until she talked to them a second time.

Mrs. Ulfers died from her injuries approximately thirty days after the attack on her. According to Dr. Susan Garcia, a forensic pathologist who performed Mrs. Ulfers’ autopsy, Mrs. Ulfers’ death was caused by blunt force trauma to her face and chest that resulted in facial fractures and broken ribs.

At trial, defendant testified that she and Sunny met for a prostitution date on the date of the incident. She stated Sunny set up the date with Mr. Ulfers and the two went to Mr. Ulfers’ house where he offered them beer. Defendant said she overheard Mr. Ulfers say he did not have enough money. She then saw Sunny follow Mr. Ulfers into the house. Defendant finished her beer and then went inside to the kitchen where she heard commotion and saw Sunny in the victim’s bedroom hitting the victim. According to defendant, Sunny told her to take the checkbook and buy cigarettes and alcohol. Defendant did so and then went back to the Inn Motel where she changed clothes. Defendant denied striking the victim and claimed it was Sunny who hit the victim. She stated that the scratches on her legs and hand came from jumping a fence. She further explained she got the victim’s blood on her foot when she went into the victim’s room to get the checkbook from Sunny.

Mr. Ulfers denied soliciting defendant or Sunny Williams for prostitution and denied ever having seen Williams.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues the evidence was insufficient to support her conviction for manslaughter since identity was not proven beyond a reasonable doubt. Defendant 17points out that the perpetrator was described as wearing black pants or shorts and that she was wearing camouflage sweat pants when she was picked up a few hours after the incident. She contends that no bloody pants were found in her home, which demonstrates that she did not change clothes between the time of the incident and the time she was stopped. Defendant contends that the evidence supports her reasonable hypothesis that Sunny Williams was the perpetrator.

The State responds that the evidence sufficiently proved that defendant was the perpetrator and offered the following evidence in support of its contention: both the -victim and Mr. Ulfers described the perpetrator as a white female wearing a black sleeveless top and black long pants; long pants were found in defendant’s motel room hidden behind a dresser; defendant had the victim’s blood on her foot and had lacerations on her hand; Mr. Ulfers positively identified defendant as the person who came to the house prior to the beating asking for water; and, defendant confessed to other inmates while awaiting trial that she beat the victim.

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 con-elude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

Defendant does not argue that the State failed to establish any of the essential statutory elements of her conviction but only contends that the State [ ^failed to prove beyond a reasonable doubt her identity as the offender. Therefore, the sufficiency of the evidence with respect to the statutory elements of second degree murder is not addressed. See State v. King, 05-553, pp. 7-10 (La.App. 5 Cir. 1/31/06), 922 So.2d 1207, 1211-13, writ denied, 06-1084 (La.11/9/06), 941 So.2d 36.

The only witness to the actual beating resulting in the victim’s death was the victim herself, who died without making a direct identification of defendant as her assailant. Immediately after the beating, the victim told her son that the woman to whom they had previously given water to came back and hit her. Mr. Ulfers explained that a woman had come to their door prior to the incident looking for a friend and asking for a drink of water. Mr. Ulfers gave the woman water in a red plastic cup. The evidence showed DNA on the red plastic cup left on the table outside the back door of the Ulfers’ house was consistent with defendant’s DNA. The DNA analyst testified that Sunny Williams, whom defendant claims was the perpetrator, was excluded as the donor of all DNA tested at the scene.

The victim also gave a description of the perpetrator to Deputy Cazalot at the scene shortly after the beating. She stated that the perpetrator was a white female, 40-45 years old, wearing black pants and a sleeveless shirt. The victim also gave a description of the perpetrator to Deputy Bennett at the hospital. She described the perpetrator as a white female, dark hair, five feet three inches to five feet six inches tall, weighing between 130 and 140 pounds, wearing dark colored pants and a sleeveless tank top type shirt.

Defendant, who fit the description of the perpetrator, was stopped by Sgt. Richard Dykes approximately three hours after the incident several blocks from the victim’s home wearing dark colored shorts and a sleeveless shirt. Mr. Ulfers identified defendant at the location where she was stopped as the same person who |9had been at his house that afternoon. He explained that she was wearing the same shirt but was no longer wearing long pants. At the time defendant was stopped, she had cuts on her hands and blood was found on her right foot. Later analysis revealed the blood on her foot was that of the victim.

Sgt. Dykes, who stopped defendant, testified that he detained defendant as she was walking near the Inn Motel where she was staying. A search of her motel room revealed black pants stuffed behind a dresser. Photos introduced into evidence show that the black pants were actually only the leg portion of the pants, which appeared to have been cut off. The photos of defendant at the time of her arrest show her wearing black shorts rolled at the hem that seemingly match the cut pants legs found behind the dresser in her motel room.

On appeal, defendant argues she was wearing camouflage pants when stopped. The record, however, clearly shows that at the time defendant was stopped, she was wearing black shorts that appeared to match the leg portions found in defendant’s motel room. There is evidence in the record that defendant was wearing camouflage pants at some point on the day of the incident. Sgt. Dykes testified he had seen defendant earlier in the day before the incident wearing a sleeveless shirt with a logo on the front and camouflage sweat pants, and surveillance photographs from the nearby Spur gas station showed defendant in camouflage pants on the day of the incident. Of note, camouflage pants were also found behind the dresser in defendant’s motel room. Additionally, human blood was found around the bottom of the camouflage pants.

At trial, defendant admitted that she was at the victim’s house. She testified that she went there with Sunny Williams for a “prostitution date.” Defendant [ instated that Mr. Ulfers gave them some beer. She then heard Mr. Ulfers and Sunny talking about Mr. Ulfers not having enough money. Defendant stated Mr. Ul-fers went inside and Sunny followed him. She testified that she finished her beer and then went inside at which time she saw Sunny hitting the victim. According to defendant, Sunny told her to take the victim’s checkbook and to go buy cigarettes and alcohol. Defendant testified that she went to a gas station after leaving the house and then went back to the motel.

Defendant testified that on the date in question, she wore a black summer shirt and camouflage pants, and that Sunny was wearing a black summer shirt and long black pants. Defendant denied ever hitting the victim and explained she got blood on her when she went in the victim’s room to get the checkbook from Sunny.

Sunny Williams testified that she had never been to the victim’s house and did not beat the victim. She admitted that she was a drug addict and a prostitute. She stated that she had not seen defendant since the two of them had been arrested over one month before the incident for drug offenses. She explained that she had been picked up in December 2006 and questioned about the incident. Sunny gave a statement to the police at that time denying any involvement.

When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). It is not the function of the appellate court to assess the credibility of witnesses or to reweigh the evidence. Id.

| nThe jury rejected defendant’s self-serving testimony and was not unreasonable in doing so. Sunny Williams denied being at the scene of the crime and none of her DNA was found on any evidence processed at the scene. Conversely, DNA found on a red plastic cup and two beer cans at the scene was consistent with defendant’s DNA. Additionally, the victim’s blood was found the top on defendant’s foot. Captain Scanlon of the Jefferson Parish Crime Laboratory testified that this finding was significant because the blood’s location on the top of her foot put defendant “in the action,” rather than a bystander who may have merely stepped in the blood. Furthermore, according to two witnesses, Christine Newman and Trudy Hotard, defendant admitted to them that she beat the victim. Also, Mr. Ulfers positively identified defendant as the person to whom he had given water. Furthermore, the victim stated that the person to whom they had given water was the person who beat her.

Viewing the evidence in a light most favorable to the State, we find that the evidence sufficiently negates all reasonable probability of misidentification. The State sufficiently proved defendant’s identity as the perpetrator of the offense. This assignment of error is accordingly without merit.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial court denied her the right to present a defense by limiting her cross-examination of Mr. Ulfers. She claims that she was erroneously prevented from questioning Mr. Ul-fers about a statement the victim made to him just before the incident wherein the victim stated that she had been attacked with a knife. Defendant claims the trial court’s ruling that this statement was inadmissible prevented her from giving the jury a complete picture of the day’s events and how Mr. Ulfers came to believe it was defendant who attacked his | ^mother when he did not see the attack. She maintains the statement was highly relevant and necessary because had the jury heard the statement and the fact Mr. Ulfers discounted it, the jury may have given more credence to defendant’s version of what happened. Defendant claims that the statement directly challenges the only element in the case in question but does not clearly explain how. Defendant further contends the victim’s earlier statement should have been admissible as res gestae.

The State first argues that defendant is precluded from raising this issue on appeal because she failed to contemporaneously object to the trial court’s ruling that the statement was inadmissible. This contention is unfounded, however. The record shows that defendant contemporaneously objected to the trial court’s ruling that the victim’s earlier statement was inadmissible through Mr. Ulfers’ testimony and thus properly preserved this issue for appeal.

The State next contends that the trial court properly prohibited defendant from questioning Mr. Ulfers about the statement the victim made before the incident because the statement constituted hearsay and was not admissible under any exception to the hearsay rule.

On appeal, defendant argues that the victim’s earlier statement should have been admissible under the rationale stated in State v. Gremillion, 542 So.2d 1074 (La.1989). In Gremillion, the Supreme Court overturned the trial court and ruled that the victim’s hearsay statement regarding the identity of his attackers should have been admitted, even though it did not fit any hearsay exceptions, because under the circumstances it was inherently reliable and trustworthy. The Supreme Court noted that the statement was corroborated by another statement the victim |,smade to the admitting physician that he was attacked by “several others,” which had been admitted into evidence. Id., at 1078. The defendant had argued that the exclusion of the statement impaired his due process right to present a defense.

In the present case, the trial court ruled that the victim’s earlier statement was inadmissible hearsay. Hearsay is an out-of-court statement, other than one made by the declarant while testifying at the present trial, offered to prove the truth of the matter asserted and is generally inadmissible unless it fits into one of the recognized exceptions. LSA-C.E. arts. 801(C) and 802.

We find, however, that the statement at issue did not constitute hearsay because it was not offered to prove that the incident with the knife actually happened. Rather, defendant specifically sought to introduce the statement to challenge the victim’s credibility and to suggest that the victim was senile or suffered from dementia because her own son did not believe her at the time she made the earlier statement. Thus, the trial court erred in ruling the statement inadmissible as hearsay because the statement was not offered to prove the truth of the matter asserted. Because Gremillion pertains to the admissibility of hearsay, Gremillion is inapplicable to the present case.

This statement, however, was not relevant evidence to attack the victim’s credibility or to prove that she was senile. Relevant evidence is any “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” LSA-C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by law. LSA-C.E. art. 402. But, even 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.” LSA-C.E. art. 408.

|14A criminal defendant has the constitutional right to present a defense. However, the right to present a defense does not require the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in the administration of justice. State v. Marsalis, 04-827, p. 12 (La.App. 5 Cir. 4/26/05), 902 So.2d 1081, 1088. A conviction will not be overturned where the defendant does not show that he was prejudiced by a limitation of the cross-examination of a witness. State v. Hall, 02-1701, p. 4 (La.App. 4 Cir. 6/25/03), 851 So.2d 830, 333, writ denied, 03-2305 (La.2/6/04), 865 So.2d 738.

In the present case, defendant contends that the victim’s statement about being threatened with a knife was relevant to show that the victim was senile and, thus, her later description of the perpetrator, upon which Mr. Ulfers based his identification of defendant, was less credible. The fact Mr. Ulfers may not have believed his mother’s statement about being threatened with a knife prior to the beating does not make it more probable that the victim was senile, however. Additionally, the mere fact Mr. Ulfers did not believe his mother’s earlier statement does not make it more probable that the statement was false thereby rendering her statements after the attack less credible. The fact Mr. Ulfers discounted his mother’s earlier statement about being threatened with a knife does not make it more probable that he should not have believed her later statement describing her assailant while she lay bleeding on the floor. Because the statement in question was not relevant to attack the victim’s credibility or faculties, the trial court’s ruling excluding the victim’s earlier statement from evidence did not deny defendant her right to present a defense.

Defendant also argues the victim’s earlier statement was admissible as res gestae. Res gestae, now known as integral act evidence, is a traditional “state of | lsmind” hearsay exception. State v. Parks, 08-423, p. 11 (La.App. 5 Cir. 11/25/08), 2 So.3d 470, 476, writ denied, 09-142 (La.10/2/09), 18 So.3d 101. As previously discussed, the victims statement regarding the knife threat was not hearsay because it was not offered for the truth of the matter asserted. As such, the doctrine of res gestae is not applicable.

For the reasons stated above, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred in allowing into evidence three separate statements made by the victim prior to her death under the dying declaration and excited utterance exceptions to the hearsay rule. She contends that none of the three statements were made by the victim while she believed she might die. She further maintains that none of the statements constituted spontaneous outbursts or were made while the victim was still under the influence of a startling event. As such, defendant asserts that all three statements should have been excluded from evidence as inadmissible hearsay.

A trial judge’s determination of the admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Odoms, 01-1033, p. 10 (La.App. 5 Cir. 3/26/02), 815 So.2d 224, 230-31, writ denied, 02-1185 (La.11/22/02), 829 So.2d 1037.

As noted previously, hearsay is an out-of-court statement, other than one made by the declarant while testifying at the present trial, offered to prove the truth of the matter asserted. LSA-C.E. art. 801(C). Hearsay evidence is generally inadmissible unless otherwise provided by the Code of Evidence or other legislation. LSA-C.E. art. 802. Exceptions to the hearsay rule include excited utterances and dying declarations. LSA-C.E. art. 803(2) and 804(B)(2).

6 An excited utterance is defined as “[a] statement relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition.” LSA-C.E. art. 803(2). There are two requirements for the excited utterance exception to the hearsay rule to apply: (1) there must have been an event sufficiently startling to render a declarant’s normal reflective thought process inoperative, and (2) the statement must have been a spontaneous reaction to the event and not the result of reflective thought. State v. Henderson, 362 So.2d 1358, 1362 (La.1978); State v. Hester, 99-426, p. 14 (La.App. 5 Cir. 9/28/99), 746 So.2d 95,106.

The most important factor in determining whether a statement was made under the stress of a startling event is time. Other factors include whether the statement is self-serving or in response to an inquiry, whether the statement expands beyond a description of events to include past or future facts, and whether the de-clarant performed tasks requiring reflective thought between the event and the statement. Id., at 14-15, 746 So.2d at 106. The trial court must determine “whether the interval between the event and the statement was long enough to permit a subsidence of emotional upset and a restoration of a reflective thought process.” State v. Hilton, 99-1239, p. 11 (La.App. 1 Cir. 3/31/00), 764 So.2d 1027, 1035, writ denied, 00-958 (La.3/9/01), 786 So.2d 113.

A dying declaration is defined as “[a] statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.” LSA-C.E. art 804(B)(2). A statement is admissible as a dying declaration if it is made when the declarant is conscious of his condition and aware of his approaching demise. State v. Verrett, 419 So.2d 455, 457 (La.1982).

| nThe victim need not express his awareness of his demise in direct terms, but rather the necessary state of mind may be inferred from the facts and circumstances surrounding the making of the declaration. Id.; State v. Bell, 97-896, p. 2 (La.App. 5 Cir. 10/14/98), 721 So.2d 38, 40, writs denied, 98-2875 and 98-2890 (La.3/12/99), 738 So.2d 1085. The Louisiana Supreme Court has explained that:

[N]o absolute rule can be laid down by which to decide with certainty -whether the declarant, at the time of making his statement, really expected to die, yet when the wound is from its nature mortal, and when, as a matter of fact, the deceased shortly after making his statement died, the courts have uniformly held that the declarant really believed that death was impending, and his statement has been admitted as a dying declaration.

State v. Verrett, supra at 456, quoting State v. Augustus, 129 La. 617, 56 So. 551 (1911). The Supreme Court further explained that “the more serious the injury and impairment of the declarant’s physical condition, the more probable is his belief that the end is near.” State v. Verrett, supra, at 457.

Victim’s statement to her son at the scene

At the hearing on the motion to admit the victim’s statement into evidence, Mr. Ulfers testified that he heard his 94-year-old mother call for him while he was sitting on the front porch. He opened the door to the house and saw his mother leaning across the sofa bleeding profusely from her head. He stated that the side of her face was black and blue and her eye was swollen shut. Mr. Ulfers testified that his mother told him “a woman came back and beat the hell out of me.” Mr. Ulfers explained he understood the woman to whom his mother was referring to be the woman who had come to the house earlier in the day and knocked on the door. Mr. Ulfers immediately called 911. At trial, Mr. Ulfers stated that after finding his | ^mother bleeding on the living room floor, he asked her what happened and she replied that the woman they gave water to came back and hit her.

On appeal, defendant argues that the victim’s statement to her son did not constitute an excited utterance or a dying declaration and should not have been admitted into evidence. She claims that by the time the victim made the statement, she was not startled and her statement was not a spontaneous outburst. She maintains the statement was not immediate to the event. She further contends it was not a dying declaration because there was no indication the victim thought she was dying.

In State v. Moye, 99-2413, pp. 6-7 (La.App. 4 Cir. 6/14/00), 765 So.2d 1103, 1107, the Fourth Circuit determined the victim’s identification of the defendant as the shooter when the police entered the house and found him lying on the floor bleeding from his wound was admissible under the excited utterance exception to the hearsay rule. The court noted that the victim “was still under the stress of excitement caused by his being shot when he identified the defendant as the one who shot him.” Id., at 7, 765 So.2d at 1107.

In the present case, the victim’s statement to her son was made shortly after she was beaten and before 911 was called. The record indicates the victim crawled from her bedroom to the living room after she was beaten. She called for her son, who immediately responded. It does not appear that much time passed between the beating and the victim’s statement. The statement was made before the police and emergency medical services arrived. The trial court did not err in finding the victim’s statement to her son to be an excited utterance. The 94-year-old victim h9was severely beaten and was obviously suffering from the trauma of the attack at the time she was found by her son and made the statement in question.

Victim’s statement to Deputy Cazalot at the scene

Defendant also challenges the admissibility of the victim’s statement to the first responding officer, Deputy Cazalot, at the scene. She makes the same arguments for inadmissibility as she did regarding the victim’s statement to her son. Defendant contends that the victim’s statement to Deputy Cazalot was neither an excited utterance nor a dying declaration because the statement was not immediate to the event and was not a startled or spontaneous outburst and the victim never indicated she thought she was dying.

At the pre-trial hearing, Deputy Cazalot testified he arrived at the scene within ten minutes of the 911 call. When he arrived, he saw the elderly victim lying on the floor bleeding from her head. He noted that the left side of her face was swollen and she had blood on her clothes. He checked the house for possible perpetrators, called for an ambulance, and then returned to the victim to question her. The victim then stated to Deputy Cazalot that she was beaten with a phone by a white female with black pants and a sleeveless black shirt. As Deputy Cazalot tried to get more information from the victim, she complained of chest pains and shortness of breath. He called for an ambulance a second time because of the victim’s deteriorating condition. At trial, Deputy Caza-lot explained that he had been an emergency medical technician for 17 years. He stated the victim was in distress and in his opinion her condition was critical.

Similar to the victim’s statement to her son, not much time passed between the beating and her statement to Deputy Ca-zalot. Mr. Ulfers called 911 |2()immediately after his mother called to him and after finding her lying on the floor and Deputy Cazalot arrived at the scene within ten minutes. The victim gave a description of the perpetrator to Deputy Cazalot within one minute of his arrival and before emergency medical services arrived. These facts are similar to State v. Moye, 99-2413 at 2, 765 So.2d at 1104, discussed above, where the Fourth Circuit upheld the admissibility of the victim’s statement identifying his shooter to the detective, as the detective entered the house and while the victim lay on floor bleeding, as an excited utterance. See also State v. Henderson, 362 So.2d 1358 (La.1978), where the Supreme Court concluded that the trial court did not err in finding statements admissible as excited utterances considering the victim’s condition and the short time (ten minutes) between the shooting and the statement.

Furthermore, as previously stated, another factor in determining whether a statement was made under the stress of a startling event is whether the declarant performed tasks requiring reflective thought between the event and the statement. State v. Hester, 99-426 at 15, 746 So.2d at 106. When Deputy Cazalot arrived on the scene, the victim was still lying on the floor bleeding from her head. Although the victim was conscious and able to answer questions, her condition was considered critical given her age of 94 and the amount of head trauma she had sustained. The victim herself indicated her pain was a ten on a scale of one to ten with ten being the worst. There is nothing in the record to suggest that the victim performed or was capable of performing any tasks requiring reflective thought pri- or to giving the statement.

We accordingly conclude that the trial court did not err in ruling the victim’s statement to Deputy Cazalot admissible as an excited utterance.

^Victim’s statement to Deputy Bennett at the hospital

Defendant further challenges the admissibility of the victim’s statement to Deputy Bennett at the hospital as a dying declaration. She again maintains that the victim never indicated that she thought she was dying from her injuries. Defendant asserts that the victim’s statement to Deputy Bennett was made after she was stable at the hospital hours after the incident. She contends that the victim lived for over three weeks after the beating and underwent two surgeries, which defendant asserts showed she had hopes of recovery.

At the hearing on the admissibility of the victim’s statement, Deputy Bennett testified that he went to the hospital approximately two hours and forty-five minutes after the victim was taken there by ambulance. When he arrived at the hospital, Deputy Bennett observed the victim talking to family members about what she wanted done with her house and the fact she wanted to make sure her son kept the house. According to Deputy Bennett, the victim waived him over and told him that she needed to tell him what happened. She proceeded to describe the attack.

When Deputy Bennett asked the victim if she could give a description of her assailant, the victim described her assailant as a white female between 35 and 40 years old, brown hair, between five feet three inches and five feet six inches tall, 135 pounds, and wearing a black sleeveless tank top and black jeans. Deputy Bennett stated the victim then became incoherent and could no longer talk.

As previously stated, the victim does not have to express in direct terms his awareness of his condition, or his approaching demise. State v. Verrett, 419 So.2d at 457. The victim’s necessary state of mind can be inferred from the facts and circumstances surrounding the declaration. Id.

|22In State v. Bell, 97-896, pp. 2-3 (La.App. 5 Cir. 10/14/98), 721 So.2d 38, 40, writs denied, 98-2875 and 98-2890 (La.3/12/99), 738 So.2d 1085, this Court found the victim’s statement to be a dying declaration. According to the paramedic, the victim had low blood pressure, a low heart rate, and was deteriorating towards death. The officer testified that the victim could have gathered from the quickness of his and his partner’s actions and their conversations the seriousness of his condition. From these circumstances, this Court found the victim was aware of his approaching death. Id. See also State v. Calender, 06-291, pp. 3-4 (La.App. 4 Cir. 9/20/06), 941 So.2d 624, 626, writ denied, 06-2520 (La.12/15/06), 945 So.2d 694.

Furthermore, the fact the victim survived approximately 30 days after the beating does not automatically render the statement inadmissible as a dying declaration. In State v. Nicholson, 96-2110, pp. 6-8 (La.App. 4 Cir. 11/26/97), 703 So.2d 173, 176-77, writ denied, 98-14 (La.5/1/98), 805 So.2d 200, the Fourth Circuit upheld the introduction of the victim’s statements made to his mother and an investigating officer during his hospital stay as dying declarations even though the victim lingered for 16 days before dying.

In the present case, although the victim, Mrs. Ulfers, never expressly stated that she thought she would die from her injuries, the circumstances under which the statement was made allow for a reasonable inference that she believed she was dying. Deputy Bennett stated that when he arrived at the hospital, Mrs. Ulfers was talking to family members about her affairs. Additionally, Mrs. Ulfers was 94 years old and sustained a severe beating. She was brought to the hospital on a heart monitor and with an oxygen mask and her heart beat was irregular. Deputy Cazalot testified Mrs. Ulfers’ condition was critical and that he did not know if she would make it. Furthermore, at trial, Mr. Ulfers testified that after he called 911, l^his mother was on her knees praying and mumbling until police arrived, which suggests she was aware of her condition.

Based on the above, we find that the trial court did not err in ruling that the victim’s statement to Deputy Bennett at the hospital was admissible as a dying declaration. The victim’s elderly age of 94, the magnitude of .her injuries, and the circumstances surrounding her statement adequately establish an inferential basis for finding that the victim believed she might die from her injuries.

For these reasons, defendant’s assignment that the trial court erred in allowing these three separate statements made by the victim prior to her death under the dying declaration and excited utterance exceptions to the hearsay rule is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues that the trial court erred in denying her motion for a mistrial after she learned at trial that a State’s witness, Trudy Hotard, had been a paid informant. She maintains that Ho-tard was an agent of the State and therefore was required to identify herself as such when defendant talked to her in jail. Defendant contends that the State cannot use a paid informant to circumvent her right to counsel and obtain a confession under the guise that the informant is a “random jailhouse snitch.”

Defendant acknowledges that a pre-trial hearing was held to determine whether Hotard was an agent of the State at the time defendant confided in her, but contends the fact Hotard was a previously paid informant was not disclosed to her. Defendant seems to suggest that the additional information that Hotard was a paid ^informant in the past made her more likely to be an agent of the State. Defendant asserts that a mistrial, or an admonishment at minimum, was required under LSA-C.Cr.P. art. 770 because of the prejudicial conduct of the State in failing to disclose Hotard was a previously paid informant.

The State responds that the trial court ruled prior to trial that Hotard was not an agent of the State despite being an informant on a prior narcotics case and therefore defendant’s right to counsel was not violated. Since Hotard was not an agent of the State, the State asserts that defendant fails to show how she was prejudiced by the information. Additionally, the State points out that defendant fails to state what the nature of the admonishment should be.

At trial, Hotard testified that the defendant came to her while they were in the Jefferson Parish Correctional Center together and that told Hotard she had a murder charge. According to Hotard, defendant told her that she went to the house to turn a trick and that the victim caught her when she trying to steal money and a checkbook after she went into the house. The defendant then stated to Ho-tard that she grabbed a phone and hit the victim with it.

On direct examination, Hotard admitted she had given information to the police before in the past and had been paid. She testified, however, that she did not receive and did not ask for money in the present case. On cross-examination, Hotard stated it had been years since she had been a paid informant, estimating it was in the 1990s and in 2001.

On appeal, defendant argues a mistrial should have been granted under LSA-C.Cr.P. art. 775 because the prejudicial conduct by the State affected her right to a fair trial. Under LSA-C.Cr.P. art. 775, a mistrial shall be ordered “when ^prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.”

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. State v. Lagarde, 07-123, pp. 10-11 (La.App. 5 Cir. 5/29/07), 960 So.2d 1105, 1113-14, writ denied, 07-1650 (La.5/9/08), 980 So.2d 684. Whether a mistrial should be granted is within the sound ■ discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. Id., at 11, 960 So.2d at 1114.

It appears that defendant claims that the State’s elicitation from Hotard at trial that she was a paid informant, after the State previously objected to the defendant’s attempt to elicit the same information at the motion to suppress hearing, was prejudicial and interfered with defendant’s ability to obtain a fair trial.

Defendant contends that she was unaware prior to Hotard’s trial testimony that Hotard was a previously paid informant. Defendant’s claim, however, is not supported by the record. At the pre-trial hearing, Hotard was asked if she had been paid before for giving information to the police and she answered that she had not been paid in a murder trial, explaining that there was a difference. Hotard’s answer implied that she may have been paid for information in another type of case.

Additionally, defendant does not explain how the information of Hotard being a paid informant affected her ability to obtain a fair trial. The jury heard Hotard testify that she had previously been a paid informant. If anything, the fact Hotard had been a paid informant would appear to negatively affect her credibility to defendant’s benefit. Furthermore, to the extent defendant suggests that Hotard being a paid informant would have changed the trial court’s earlier ruling that 12fiHotard was not an agent of the State, the record shows the trial court was in fact aware that Hotard was previously a paid informant before ruling that she was not an agent of the State. At trial, the State pointed out that the trial court reviewed documents in camera and was aware that Hotard had been a paid informant years before the present incident. This assertion was not contradicted.

Defendant did not show that she was prejudiced by Hotard’s trial testimony that she had been a paid informant in the past. As such, defendant failed to prove a ground upon which a mistrial could have been based and the trial court thus did not err in denying her motion for a mistrial.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant asserts that the trial court erred in allowing the State to use numerous gruesome photographs of the victim during trial. She contends that the close-up photos of the victim’s face had no probative value since the identification of the victim or the nature of the injury was not at issue. She claims that the cumulative photographs were used solely to inflame the jury’s passion and create prejudice against her.

The record shows that six photographs of the victim taken at the scene before she was transported to the hospital were introduced during the testimony of Officer Ca-zalot, the first officer on the scene. Thereafter, during the testimony of Deputy Bennett, who saw the victim at the hospital, the State introduced six more photographs of the victim taken while she was at the hospital.

Generally, photographs are admissible if they illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, subject to the test that their probative value outweighs any | ^prejudicial effect. State v. Battaglia, 03-692, p. 10 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 710, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058. Photographic evidence is properly admitted unless it is so gruesome as to overwhelm the jurors’ reason and lead them to convict a defendant without sufficient evidence. State v. Broaden, 99-2124, p. 23 (La.2/21/01), 780 So.2d 349, 364, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001).

The cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. State v. Battaglia, 03-692 at 10, 861 So.2d at 711. The trial court has considerable discretion regarding the admissibility of photographs and its ruling will not be disturbed absent an abuse of that discretion. State v. Gallow, 338 So.2d 920, 923 (La.1976); State v. Addison, 08-461, p. 16 (La.App. 5 Cir. 2/10/09), 8 So.3d 707, 718.

The State is entitled to the moral force of its evidence. 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). A defendant cannot control the State’s method of proof. Id.

In the instant case, although the photographs of the victim’s injuries are disturbing, they depict the injuries sustained by the victim and are not so gruesome that they would have overwhelmed the jurors’ reason and led them to convict defendant based upon the photographs alone. The photographs show the victim after her injuries were attended to and are not bloody.

Defendant was charged with second degree murder. The State therefore had the burden of proving that defendant had the specific intent to kill or to inflict great bodily harm. The photographs depict the nature of the injuries inflicted upon the lavictim. They therefore served to establish that defendant had the state of mind necessary to convict her of second degree murder. See State v. Ellis, 42,286, p. 6 (La.App. 2 Cir. 7/11/07), 961 So.2d 636, 641, writ denied, 07-1641 (La.1/25/08), 973 So.2d 753. Additionally, the photographs corroborate the testimony of the victim’s son and the officers regarding the victim’s injuries.

Furthermore, the photographs do not appear to be cumulative. Some of the photographs show close-up and faraway views of the same injuries, and others show the injuries from different angles. See State v. Condley, 04-1349, p. 19 (La.App. 5 Cir. 5/31/05), 904 So.2d 881, 893, writ denied, 05-1760 (La.2/10/06), 924 So.2d 163.

Defendant has failed to show that the photographs were more prejudicial than probative and that the trial court abused its discretion by admitting the photographs of the victim’s injuries taken at the scene of the beating and at the hospital into evidence. This assignment of error has no merit.

ERRORS PATENT REVIEW

Defendant requested an errors patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request. This court’s review of the record reveals no errors patent.

CONCLUSION

We find no merit to the assignments of error asserted by defendant on appeal. Defendant’s conviction is accordingly affirmed.

AFFIRMED.

      . The appellate record does not contain the written motions to suppress, but contains transcripts of the hearings on the motions.

      . Defendant's assignments of error are addressed out of order so the sufficiency of the evidence is addressed first in accordance with State v. Hearold, 603 So.2d 731, 734 (La.1992).

      . The crime lab technician who collected the blood evidence from the pants described them as "dark," dark enough that she could better visualize the blood stains by turning them inside out. Photos of the camouflage pants show that they contained black and dark green patches in the print.

      . Although defendant unsuccessfully attempted to get the victim's earlier statement into evidence through Deputies Cazalot and Bennett and did not object to the trial court's rulings, defendant does not contend that the trial court improperly denied the admissibility of the statement at those times. Rather, defendant asserts on appeal that the victim's earlier statement was admissible through Mr. Ulfers, to whom the victim initially made the statement.

      . It is well established that the appellate court is not limited to the evidence adduced at the pre-trial hearing but may also consider the evidence presented at trial in determining whether the trial court's ruling on a motion to suppress is correct. State v. Morton, 08-164, p. 6 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 656. In State v. Banks, 96-652, p. 6 (La.App. 5 Cir. 1/15/97), 694 So.2d 401, 406, n. 2, this Court applied the same rationale when reviewing the trial court's ruling on a motion to quash. See also State v. Roblow, 623 So.2d 51, 55 (La.App. 1 Cir. 1993). Although there do not appear to be any cases extending this same rule to the review of a ruling on the admissibility of a dying declaration, there does not appear to be any reason why the same rationale should not apply.

      . The admissibility of the statement under the dying declaration exception to the hearsay rule is not discussed since the statement is admissible under the excited utterance exception and the trial court first ruled it admissible as an excited utterance.

      . The admissibility of this statement as a dying declaration is not discussed because of its admissibility as an excited utterance and the fact the trial court first ruled it admissible as an excited utterance.

      . Prior to trial, defendant filed a motion to suppress her jailhouse confessions that she made to two inmates, Hotard and Christine Newman. Defendant asserted that the inmates were informants acting as agents of the State and argued that the State used the informants to circumvent her right to counsel. A pre-trial hearing was held on the motion, which was denied.

      . In the present case, Hotard gave information to the police about defendant's confession in April 2007.

      . Defense counsel did not object to the postmortem photographs of the victim, which were introduced during the testimony of Dr. Susan Garcia.

      . A writ, 09-K-589, was filed with the Louisiana Supreme Court on March 16, 2009.