dissenting.
hi respectfully disagree with the majority’s affirmation of the defendant’s conviction for attempted manslaughter pursuant to La.R.S. 14:31 and La.R.S. 14:27. I would vacate the defendant’s conviction and sentence; enter a conviction for aggravated battery, a violation of La.R.S. 14:34; and remand the matter to the trial court for sentencing on that offense.
My disagreement is not with the majority’s determination of the facts as established by the trial court record. Instead, I find that the facts do not rise to the level of establishing beyond a reasonable doubt that the defendant had a specific intent to kill the victim. I do find, however, that the force or violence imposed on the person of the victim constituted a battery as defined by La.R.S. 14:33, and the use of the rock as a weapon caused the battery to rise to the level of an aggravated battery as defined by La.R.S. 14:34. Furthermore, while the initial force or violence used by the defendant could have been classified as justifiable in defense of himself under La.R.S. 14:19, the defendant’s subsequent actions in using the rock as a weapon exceeded the level of force or violence reasonable and apparently necessary to prevent the forcible offense against him. Id.