author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Ramon Lamon GREEN, Appellant.
    No. 47,389-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.
    James E. Beal, Jonesboro, LA, Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John Michael Lawrence, Robert Randall Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   LOLLEY, J.

h This criminal appeal by the defendant, Ramon Green, arises from the 26th Judicial District Court, Parish of Bossier, State of Louisiana. Green was charged with attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1, and illegal use of a weapon, a violation of La. R.S. 14:94. In exchange for the dismissal of the attempted murder charge, Green pled guilty to illegal use of a weapon; there was no sentencing agreement. Green was ultimately sentenced to serve 18 months’ imprisonment at hard labor, and this appeal ensued. For the following reasons, Green’s conviction and sentence are affirmed.

Facts

Following an incident on May 16, 2010, Green was charged with attempted second degree murder and illegal use of a weapon. The incident that led to the charges occurred at a rural home in Bossier Parish at about 1:00 a.m. Green ultimately agreed to plead guilty to the charge of illegal use of a weapon for dismissal of the attempted second degree murder charge. At his guilty plea hearing, the facts of the offense were recited, which facts had been developed at a meeting with all the witnesses, the police, and Green and his attorney. According to which, on May 16, 2010, Green was at the home of one of his cousins, Michael Matthews. Green and Matthews got into a fight. After the fight broke up, Green left, but returned to Matthews’ house to apologize. A second fight commenced. After that fight, Green left again, retrieved a pump shotgun, and returned to confront Matthews. Three other people were present during the confrontation, and they reported that Green pointed the shotgun at Matthews at which time |2there was a “click” sound that some attributed to the release of the safety and some attributed to the pulling of the trigger. The gun did not fire, however, and two of the witnesses said that Green then pumped the shotgun. All three of the witnesses then heard the gun make another “click,” and then the witnesses said that Green pumped the shotgun again.

At that point, most of those present, including Matthews, began to flee, but one of the witnesses, Brian Robinson, grabbed the barrel of the shotgun. At that time, the shotgun “went off,” and the barrel was “right beside [Robinson’s] head.” Robinson was temporarily deafened but otherwise uninjured. At the conclusion of this recitation, during the plea proceedings, Green agreed that these were the facts of the incident, and he pled guilty to illegal use of a weapon.

Subsequently, Green appeared for sentencing. The trial court reviewed a pre-sentence investigation report (“PSI”) that had been prepared and which included Green’s social and criminal history. Green, who was born in 1969, had a significant criminal history, which the trial court noted as follows:

• 1987: Green was charged with simple burglary of a vehicle and pled guilty to middle grade theft, for which he was placed on two years’ unsupervised probation;
• 1990: Green was charged with attempted second degree murder; he was allowed to plead guilty to aggravated battery and was sentenced to seven years’ imprisonment at hard labor;
Is* 1994: Green was charged with possession of a firearm by a convicted felon, which was quashed for untimely prosecution;
• 1996: Green was charged with aggravated battery which was reduced to a charge of simple battery and nol prossed;
• 2000: Green pled guilty to simple battery and was placed on supervised probation for one year; and,
• 2003: Green was charged with second degree battery and pled no contest to simple battery; he was again put on supervised probation for one year.

Green submitted proof to the trial court that since his plea, he had successfully completed an anger management class. The trial court recited the sentence range for illegal use of weapons, zero to two years at hard labor, and stated that Green was not eligible for probation as a third-felony offender. In light of Green’s lengthy criminal history, the court sentenced him to serve 18 months’ imprisonment at hard labor, consecutive to any other he may be serving. Green’s motion to reconsider sentence was denied, and this appeal ensued.

Discussion

Green’s only assignment of error on appeal is that the trial court imposed an excessive sentence for this offense. He urges that his own family had no objection to a probated sentence in this case, that he has accepted responsibility for his actions, and that no one was injured during the incident.

|4The test applied by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.02/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.03/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Gill, 46,784 (La.App.2d Cir.12/14/11), 80 So.3d 719, writ denied, 2012-0164 (La.05/04/12), 88 So.3d 463. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Elmore, 46,833 (La.App.2d Cir.12/14/11), 80 So.3d 731, writ denied, 2012-0006 (La.04/27/12), 86 So.3d 627. There is no requirement that specific matters be given any particular weight at sentencing. State v. Moton, 46,607 (La.App.2d Cir.09/21/11), 73 So.3d 503, writ denied, 2011-2288 (La.03/30/12), 85 So.3d 113.

^Second, a sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sen tence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.01/15/02), 805 So.2d 166; State v. Lewis, 46,344 (La.App.2d Cir.05/18/11), 69 So.3d 604, writ denied, 2011-2282 (La.06/01/12), 90 So.3d 426.

The record reflects that the trial court properly considered the circumstances of this offense and Green’s criminal history to be the most significant factors in sentencing, and this demonstrates adequate compliance with La. C. Cr. P. art. 894.1. We note that Green has a long criminal history of angry and violent criminal behavior. Here, the crime in question is just another in a lengthy line of similar incidents. Particularly disturbing in this case is that Green twice left the scene, but still did not calm down. Instead, Green escalated the conflict by retrieving a firearm, which he then pointed at his cousin and attempted to operate. Whether he tried to shoot his cousin is unclear from the limited facts presented, but the record is clear that the firearm was loaded and that it “went off’ during a second encounter with another of his cousins. The shotgun’s discharge was so close to Robinson’s head that he was temporarily deafened. By needlessly escalating the conflict and using a firearm to, at the least, intimidate and threaten his family members by pointing a gun at his cousin, Green created a risk of |fideath or great bodily harm to more than one person. Further, given Green’s statement in the PSI that someone else actually pulled the trigger of the shotgun, it is evident that he did not accept responsibility for the offense, despite pleading guilty to avoid a trial for attempted second degree murder.

Notably, Green’s PSI reflects that despite his steady criminal record, he managed to graduate from high school, attend some college (taking business and accounting classes), hold down employment, get married (twice) and have children, and serve as co-pastor of his Baptist church. Clearly, Green is a person with potential to live a productive and nonviolent life. However, in light of his criminal record that includes several convictions for battery and the dismissed attempted murder charge, Green’s 18-month hard labor sentence is in no way excessive. This assignment of error is without merit.

Conclusion

Considering the foregoing, the conviction and sentence of Ramon Green are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: SEXTON, Judge Pro Tem.

license: Public Domain

text:
    NICK FARONE MUSIC MINISTRY, d/b/a New Beginnings Christian Center, Plaintiff-Appellant v. CITY OF BASTROP, Louisiana, Defendant-Appellee.
    No. 47,410-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.

      Richard L. Fewell, Jr., Jack Wright, Jr., Monroe, LA, for Appellant.
    Hudson, Potts & Bernstein, Monroe, LA, by Robert M. Baldwin, Margaret H. Blackwell, for Appellee.
    Before DREW, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| i Plaintiff, Nick Farone Music Ministry, D/B/A New Beginnings Christian Center (“Farone”), filed suit against the City of Bastrop (“City”) for damages incurred because of the City’s refusal to repair a drainpipe running underneath Farone’s parking lot. The trial judge granted the City’s motion for involuntary dismissal, finding that the pipe is not a public component or public thing and that the City’s refusal to perform further repairs was protected under the discretionary immunity of La. R.S. 9:2798.1. Farone appeals. For the reasons set forth herein, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

FACTS

Farone operated a nonprofit Christian center for children in Bastrop. In 2003, Farone laid a parking lot and driveway next to the ministry building. A natural drain runs under the parking lot. Sometime in the past, the natural drain was enclosed, although it is not clear who enclosed the drain or exactly when it was enclosed. There is a manhole on the adjacent street, North Vine Street, and the drainpipe at issue connects with the City’s storm drain system at that juncture to allow water to be diverted off of North Vine Street. Over the years, the area of the parking lot above the drainpipe has continually eroded and periodically caused caving in of the concrete directly above the pipe. Each time the pipe needed repairing, Mr. Farone alerted the Mayor and the City made repairs to the pipe in 2005, 2006 and 2007. No other parties have made any repairs to, or maintained, the drainpipe at issue other than the City.

In 2008, Mr. Farone contacted the City about the erosion and a growing sinkhole in the parking lot. The photographs in the record reveal an extremely large sinkhole or crater. The Mayor, however, refused to approve the instant ^repairs and refused to allow Farone to fill in or obstruct the pipe. As a result, the children’s center was forced to close.

The Mayor testified that the drain is, in fact, a natural drain and that the City has historically maintained the drain. In considering the 2008 request, however, the Mayor determined that the City did not have ownership of, or responsibility for, the drainpipe because it is located under private property. According to the City, the most recent request to repair the pipe actually required replacement, rather than patching, making the work more extensive than previous repairs. The City submits that it performed the prior repairs in an effort to assist the nonprofit ministry; however, the City was not prepared to perform such extensive repairs/replacement of a drain running under private property.

Farone subsequently filed suit seeking an injunction, damages and requesting that the City be ordered to make the repairs. Cross motions for summary judgment were filed and denied. Following the presentation of Farone’s evidence at trial, the City moved for involuntary dismissal under La. C. Civ. P. art. 1672(B). Farone urged the theory of tacit dedication and the City responded that it was protected by the governmental discretionary immunity found in La. R.S. 9:2798.1, infra. In very brief reasons for judgment, the judge opined that the statute regarding tacit dedications was inapplicable. laHe further held that La. R.S. 9:2798.1 was applicable and operated to shield the City from responsibility for the decision not to repair or replace the pipe. This appeal by Farone ensued.

DISCUSSION

Ordinarily, a dismissal based on Article 1672(B) should not be reversed in the absence of manifest error or unless clearly wrong. Brodnax v. Foster, 47,079 (La.App.2d Cir.4/11/12), 92 So.3d 427; Clifton v. Coleman, 32,612 (La.App.2d Cir.12/23/99), 748 So.2d 1263, writ denied, 00-0201 (La.3/24/00), 758 So.2d 151. While factual determinations by the trier of fact are given great deference on appeal, if the trial court’s decision was based on an erroneous application of law, rather than a valid exercise of discretion, the trial court’s decision is not entitled to the deference it would otherwise enjoy. Brodnax, supra, citing Lasha v. Olin Corp., 625 So.2d 1002 (La.1993). Here, we conclude that the trial judge erroneously applied the discretionary immunity provided in La. R.S. 9:2798.1; and, therefore, we do not afford the trial judge the benefit of the manifest error standard of review.

The statute reads as follows:

§ 2798.1. Policymaking or discretionary acts or omissions of public entities or their officers or employees
A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
|4C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

Significantly, however, the immunity in discretionary matters exercised by a governmental agency is not absolute. Mitter v. St. John the Baptist Parish, 05-375 (La.App.5th Cir.12/27/05), 920 So.2d 263, writ denied, 06-0254 (La.5/26/06), 930 So.2d 21, citing McCloud v. Parish of Jefferson, 383 So.2d 477, (La.App. 4th Cir. 1980). Article 12, Section 10(A), of the Louisiana Constitution provides that “[njeither the state, a state agency, nor political subdivision shall be immune from suit and liability in contract or for injury to person or property.” In McCloud, supra, the plaintiffs survived an exception of no cause of action where they alleged that their property had sunk as result of the absence of an effective drainage system and that the parish’s negligence consisted of failure to provide adequate drainage after undertaking to do so. Justice Lem-mon, concurring, recognized that “[o]nce a governmental body ... undertakes to provide drainage or to make general improvements to an existing system, it has a duty to perform this function according to reasonable standards and in a manner which does not cause damage to particular citizens[.]”

|fiIn the more recent drainage case of Mitter, supra, on facts very similar to this case, the fifth circuit reiterated that the immunity afforded under section 2798.1 is not absolute. The Mitter court quoted with approval the trial court’s reasons for judgment in the case:

It is unthinkable that a governmental authority could be protected from liability in a case such as this where improvements to the drainage system relieving the problems of certain citizens ... causes problems to other citizens.

In the case sub judice, Farone argues that the City undertook a responsibility to continue to repair the drainpipe when it performed past maintenance and repairs. We agree. As previously stated, the May- or testified that the drain is a natural drain and is connected to the City’s drainage system. He agreed that the drain is vital to the drainage system as it diverts water off of North Vine Street. In his deposition, the Mayor stated that it is the City’s responsibility to maintain natural drains whether they be on public or private property. He testified that he approved repairs to the drain in years past because “if it had not been repaired, if it had remained stopped up it would have flooded the street ... and we would have had liability.” The Mayor further testified that, for this reason, the drain must remain functional, free and flowing. Accordingly, the City maintained the drain and made at least three prior repairs to the drainpipe, despite the fact that all parties are aware that the pipe is located under private property. The Mayor also recognized and agreed that the failure of the drainpipe is the cause of the massive and growing sinkhole that has damaged Far-one’s property and ministry.

We conclude that the City utilized the drain for a public purpose and was on notice of the drainage problem. Moreover, the City undertook the | (¡responsibility for repair of the drainpipe for years — until the condition of the pipe deteriorated to the point of needing replacing. On these facts, we find that the trial judge legally erred in holding that the City’s refusal to perform further repairs to the drain are protected by the discretionary immunity of La. R.S. 9:2798.1. McCloud, supra; Milter, supra. The motion for involuntary dismissal was improperly granted and the matter must be remanded for further proceedings.

In light of our holding herein, we do not reach the issues of ownership of the drainpipe or whether there was inverse condemnation as asserted by Farone, notably argued for the first time on appeal.

DECREE

For the foregoing reasons, the judgment granting involuntary dismissal in favor of the City of Bastrop and dismissing with prejudice the claims of Nick Farone Music Ministry, D/B/A New Beginnings Christian Center, is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of appeal are assessed to the City of Bastrop in the amount of $1,828.89. La. R.S. 13:5112.

REVERSED AND REMANDED.

      . La. C. Civ. P. Art. 1672(B) provides:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Orlando Maurice GLOVER, Appellant.
    No. 47,311-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 10, 2012.
    Rehearing Denied Nov. 8, 2012.

      Letty S. Di Giulio, for Appellant.
    Charles Rex Scott, District Attorney, R. Bennett Langford, III, Suzanne M. Owen, Kodie K. Smith, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   CARAWAY, J.

|,After a jury trial on two counts of attempted second degree murder, Orlando Maurice Glover was found guilty of two counts of attempted manslaughter in violation of La. R.S. 14:31 and 14:27. Following an adjudication as a second felony offender, Glover was sentenced to concurrent sentences of 35 years at hard labor without benefit of parole, probation, or suspension of sentence on each count and ordered to pay court costs through the inmate banking system. Glover appeals his conviction and sentence. We affirm the conviction and amend the sentences.

Facts

In the late summer of 2007, 17-year-old Orlando Glover drove his vehicle at an excessive speed through the parking lot of an apartment complex located at 4305 Illinois Street in Shreveport, Louisiana. After 19-year-old James Maiden thought that Glover was trying to run him over, the two men briefly argued. Nothing further happened that day between the parties but the following day, the two men again exchanged words.

In the early afternoon of September 14, 2007, Maiden and two friends, including 12-year-old A.M. and Lucas White Johnson, were at the apartment complex sitting outside Jareika White’s apartment. At some point, Glover walked up and “said something” to the group. Maiden challenged Glover to a fight and the defendant pulled a gun out of his waistband and started shooting. White was exiting her apartment with her 4-month-old baby when the argument and shooting were taking place. At that time, the child was struck in the leg by a bullet. Those standing outside 12ran into White’s apartment as Glover continued to shoot. A.M. was also hit by a bullet in his right upper arm. Five or six shots were fired by Glover who then ran away.

After developing Glover as a suspect in the case, police prepared a photographic lineup on the same day as the shootings. Maiden, A.M., Johnson and White positively identified Glover as the shooter. A Crime Stoppers tip eventually led police to Glover who was arrested and charged with two counts of attempted second degree murder. A jury convicted him of two counts of attempted manslaughter. Glover was adjudicated a second felony offender based upon a 2007 illegal use of a weapon conviction which involved Glover’s negligent discharge of a firearm at a house. He was sentenced to concurrent sentences of 35 years at hard labor without benefit of parole, probation or suspension of sentence.

After sentencing, Glover moved for a new trial which was denied by the trial court. Glover also sought reconsideration of his sentence on the grounds that the court failed to consider mitigating factors and imposed excessive sentences. The court denied that motion on March 28, 2011. This appeal ensued.

On appeal, Glover argues that the state’s evidence was insufficient to overcome his proof that he acted in self-defense. He also argues that the trial judge’s failure to instruct the jury regarding the burden of proof in selfjdefense3 cases violated his due process rights and right to present a defense and that his trial counsel was ineffective in failing to object to the trial judge’s decision. Finally, Glover argues his sentences were constitutionally excessive considering the mitigating circumstances of the offense and his status as a juvenile.

Discussion

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 80 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,-253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, supra; State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La. App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 07-1209 (La.12/14/07), 970 So.2d 529.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 09-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any | r,witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104,148 L.Ed.2d 62 (2000).

The offense of manslaughter is defined as a homicide that would be second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31; State v. Miller, 36,003 (La.App.2d Cir.7/25/02), 824 So.2d 1208, writ denied, 02-2480 (La.6/27/03), 847 So.2d 1253. Sudden passion and heat of blood are mitigatory factors in the nature of a defense which exhibits a degree of culpability less than present when the homicide is committed without them. State v. Lombard, 486 So.2d 106 (La.1986); State v. Williams, 44,977 (La.App.2d Cir.1/27/10), 32 So.3d 902, writ denied, 10-0368 (La.9/24/10), 45 So.3d 1071.

To support a conviction for attempted manslaughter, the state must prove the defendant specifically intended to kill the victim and committed an overt act in furtherance of that goal. State v. Jackson, 42,960 (La.App.2d Cir.2/13/08), 976 So.2d 279; State v. Mitchell, 39,305 (La.App.2d Cir.2/17/05), 894 So.2d 1240, writ denied, 05-0741 (La.6/3/05), 903 So.2d 457. See also State v. Williams, supra. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Jackson, supra. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Draughn, 05-1825 (La.01/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Linnear, 44,830 (La. App.2d Cir.12/9/09), 26 So.3d 303; State v. Jackson, supra. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Jackson, supra.

In a given situation, a person may shoot at an intended victim with the specific intent to kill or inflict great bodily harm and accidentally kill or inflict great bodily harm upon another person. In such instance, if the killing or infliction of great bodily harm would have been unlawful against the intended victim, then it would be unlawful against the person actually shot. This is the doctrine of transferred intent. State v. Shivers, 43,731 (La.App.2d Cir.12/3/08), 998 So.2d 877, writ denied, 09-0161 (La.10/30/09), 21 So.3d 274; State v. Strogen, 35,871 (La.App.2d Cir.4/3/02), 814 So.2d 725, writ denied, 02-1513 (La.12/13/02), 831 So.2d 983; State v. Johnson, 29,629 (La.App.2d Cir.8/20/97), 698 So.2d 1051.

The determination of whether the requisite intent is present in a criminal case is for the trier of fact, and review of that determination is to- be guided by the standard of Jackson v. Virginia, supra. State v. Linnear, supra.

The use of force or violence upon the person of another is justifiable under La. R.S. 14:19 when committed for the purpose of preventing a |7forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence must be reasonable and apparently necessary to prevent such offense. See also La. R.S. 14:18. The standard of proof when a defendant claims self-defense in a non-homicide case is preponderance of the evidence. State v. Linnear, supra. The issue of self-defense requires a dual inquiry, an objective inquiry into whether the force was reasonable under the circumstances and a subjective inquiry into whether the force was apparently necessary. State v. Linnear, supra; State v. Robinson, 37,043 (La.App.2d Cir.5/14/03), 848 So.2d 642.

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:22.

At trial, Maiden testified he was outside Jareika White’s apartment complex on September 14, 2007. Maiden testified that when Glover walked in front of White’s apartment where Maiden and his group were sitting, an argument ensued with Glover. Maiden knew Glover from a brief altercation that happened in the parking lot of the complex prior to that day. As Glover and Maiden argued, Glover pulled a gun from his waistband and fired it. Maiden did not get a good look at the gun, but recalled five shots being fired. As the shots were being fired, Maiden ran into the apartment while Glover ran in another direction.

[8On cross-examination, Maiden admitted that he and Glover “had words” on at least three occasions, shortly before the shooting. On the day of the shooting, neither Maiden nor his companions in front of the apartment had a weapon.

Johnson testified to the same basic facts as Maiden. Johnson is White’s brother and the cousin of A.M. Johnson testified that the group was sitting outside his sister’s apartment when Glover walked by and argued with Maiden. After Maiden invited Glover to fight, Glover responded by shooting at the group. When Maiden ran into White’s apartment, Glover continued to shoot at him and young victims were shot inside the apartment. Johnson testified that neither he nor his friends, Maiden or A.M., had a gun that day. He did not know why Maiden and Glover were arguing.

White testified that she was at home sitting in her living room talking with friends and family when she decided to walk to her sister’s apartment in the next building. As she was leaving her apartment, she heard two men arguing. When she looked to see what the commotion was about, she heard gunshots. White testified she saw Glover with the gun and she also saw him fire the gun. White turned to run back into her apartment, and she ran into her friend who had been exiting the apartment behind her. Following closely behind White was Johnson, A.M., her nephew, and Maiden. When everyone was in the apartment, they realized there was blood coming from someone. White checked her daughter and found that her leg was bleeding.

Detective Lane Smith of the Shreveport Police Department was dispatched to the scene of the shooting incident where he investigated the |9crime scene and later prepared the photographic lineup. Detective Smith obtained an arrest warrant and assisted in Glover’s arrest. After Glover was informed of his rights, he informed Detective Smith that “they shot at me first, he had a gun.” Glover also contested news reports of the crime. Detective Smith testified that Glover never denied that he was the person who committed this offense, “but he described it as an act of self-defense.” Detective Smith stated that Glover told him that he shot his gun three times but that police located four .380 caliber shell casings at the scene of the crime.

On cross-examination, Detective Smith testified that he investigated the self-defense possibility and “didn’t find any evidence that indicated that there were shots fired back.” He stated that police examined the scene, conducted interviews with witnesses, photographed the bullets and examined the entire perimeter of the apartment complex to make this determination. Detective Smith testified that he also explored the possibility that a revolver, which does not use shell casings, was involved in the shooting, but could find not evidence of that fact.

After the state rested its case, the defendant chose not to testify during the trial but presented the testimony of several witnesses. White was recalled to the stand. White explained that Maiden is Johnson’s best friend. She recalled that on the day of the shooting the two men did not enter her house before the shooting but were standing outside on the steps. She could not explain why police found 32 bags of marijuana in her apartment. She denied that either of the men placed the drugs in her house.

| mThe defense called other witnesses related to the defendant who described the certain previous altercations between Glover and Maiden. The witnesses were not present at the time of the shooting at Smith’s house.

When viewed in the light most favorable to the state, we find the evidence sufficient to support Glover’s attempted manslaughter convictions. The eyewitness testimony established that it was Glover who pulled a gun from his waistband and began shooting at Maiden after he challenged Glover to fight. Glover admitted to police that he shot a gun. This evidence is more than adequate to establish that Glover possessed the requisite specific intent to kill or to inflict great bodily harm that resulted in injury to innocent bystanders.

Moreover, the claim of self-defense was mentioned only by Glover in his initial statements to police. He indicated that he was firing back at someone when he engaged his weapon. By all the eyewitness accounts of the incident, however, it was only Glover who was armed at the time of the shooting. Despite Maiden’s statements to Glover about fighting, no witness reported that Maiden directed hostile action toward Glover before the shooting. Even if the jury believed that Maiden and Glover had previous altercations in which Maiden had a gun, no evidence established that at the time of the offense, anyone other than Glover fired or even possessed a gun. Thus, the jury could have reasonably rejected Glover’s claim and found that Glover intended to kill Maiden and committed an overt act in furtherance of that goal which injured innocent bystanders. This assignment is without merit.

Inin his second assignment of error, Glover argues that the trial court erred in failing to instruct the jurors on the applicable standard of proof for self-defense. Glover also contends that his trial counsel was ineffective for failing to object to the trial court’s decision not to instruct the jury regarding the. burden of proof for self-defense or specifically request that the jury be so instructed. Glover contends that a properly instructed jury would have found that he fired his gun in self-defense.

This court has held that the burden of proof of self-defense in a non-homicide case rests upon the defendant. That burden of proof is preponderance of the evidence, not beyond a reasonable doubt. State v. Cheatham, 38,413 (La.App.2d Cir.6/23/04), 877 So.2d 164, writ denied, 04-2224 (La.6/24/05), 904 So.2d 717; State v. Robinson, supra. This is because the Supreme Court has indicated that in non-homicide situations the defense of self-defense includes a subjective inquiry into whether the force was apparently necessary, unlike the homicide situation where only an objective inquiry into whether the defendant reasonably believes that he is in imminent danger of losing his life is required. State v. Freeman, 427 So.2d 1161 (La.1983). Other circuits have disagreed and placed the burden of proof on the state. The Louisiana Supreme Court has made no definitive statement on the issue.

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the |12time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury. La.C.Cr.P. art. 801(C).

The court shall charge the jury: (1) As to the law applicable to the case; (2) That the jury is the judge of the law and of the facts on the question of guilt or innocence, but that it has the duty to accept and to apply the law as given by the court; and (3) That the jury alone shall determine the weight and credibility of the evidence. La. C.Cr.P. art. 802.

A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. La.C.Cr.P. art. 807; State v. Gipson, 28,113 (La.App.2d Cir.6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

An improper jury instruction is a trial error subject to harmless review error analysis. State v. Cage, 583 So.2d 1125 (La.1991), cert. denied, 502 U.S. 874, 112 S.Ct. 211, 116 L.Ed.2d 170 (1991). An improper jury instruction on self-defense is also subject to harmless error analysis. State v. Richardson, 92-836 (La.App. 5th Cir.12/14/94), 648 So.2d 945, writ denied, 95-0343 (La.6/23/95), 656 So.2d 1011. The harmless error analysis evaluates whether the guilty verdict actually rendered in the trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a | iafull eviden-tiary hearing under La.C.Cr.P. art. 930. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,-394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Egan, 44,879 (La.App.2d Cir.12/9/09), 26 So.3d 938; State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at .the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, 114tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La. App.2d Cir.4/4/07), 954 So.2d 823, writ denied, 07-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, ie., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, writ denied, 95-1398 (La.11/3/95), 662 So.2d 9. A defendant making a claim of ineffective assistance of counsel must identify certain acts or omissions by counsel which led to the claim; general statements and conclusory charges will not suffice. Strickland, supra; State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 02-1570 (La.5/30/03), 845 So.2d 1067.

In this case, the issue of self-defense was not raised in voir dire or opening statements. However, at trial, evidence was introduced by the state through the officers’ testimony which indicated that Glover made a statement that he shot because he was first fired upon.

Prior to closing arguments and the charging of the jury, several bench conferences were held regarding the jury charges. After the last bench 115conference, the court noted that “one issue that has come about in this case is to the burden of proof with regard to a self-defense issue in a non-homicide case.” The court had reviewed cases provided by counsel and ultimately concluded that in light of a circuit split and the lack of Louisiana Supreme Court guidance on the issue, no instruction would be given with regard to whether the state or the defense had the burden of proof on the issue. The court also noted that should the jury inquire about the issue, the court would consider further argument from counsel.

The court instructed the jury as to the provisions of La. R.S. 14:19(A), which addresses the use of force of violence in self-defense in non-homicide cases. Following the trial court’s ruling, Glover’s attorney stated:

Your Honor, this is John Bokenfohr on behalf of Mr. Glover. I participated in the conversations regarding the competing jurisdictions on the interpretation of the statute, Your Honor, and I have no objection to the Court’s decision.

Immediately after this statement, closing arguments began. Defense counsel argued that the jury was required to consider self-defense in light of Glover’s claims to police after he was arrested. Counsel read the provisions of La. R.S. 14:19 to the jury. Thereafter, in rebuttal the state argued that the only proof of self-defense was Glover’s self-serving statement to police. The state argued that the aggressor doctrine precluded Glover from raising the issue of self-defense.

After the completion of arguments, the court instructed the jury without the inclusion of the self-defense burden of proof.

|1fiIn this case, there is no doubt that the jury was amply instructed regarding self-defense. In fact, Glover’s counsel included the instruction during his closing arguments. The sole issue before us is whether the trial court’s failure to charge the jury regarding which party held the burden of proof with respect to any potential self-defense claim prejudiced Glover. The lack of an objection by Glover, however, precludes appellate review of this issue. Moreover, any error in the failure of the court to give such an instruction is harmless. In the general instructions, the jury was correctly instructed regarding the state’s burden of proof beyond a reasonable doubt. We have previously determined that the evidence was sufficient to prove that Glover did not act in self-defense. There is no showing made that even a preponderance of the evidence demonstrates self-defense. Any error in the failure to include the instruction effectively placed a more onerous burden upon the state to disprove the subjective element of the defense, to the benefit of Glover. Thus, no prejudice has been demonstrated. State v. Cheatham, supra.

Glover has also raised a claim that his trial counsel was ineffective in failing to raise an objection. While normally reserved for post conviction relief, the record appears to be sufficient to review the claim. It is arguable that counsel was fully aware that the lack of the instruction of burden of proof would ultimately benefit Glover. Such trial strategy must be afforded great deference by this court. Even if error is presumed, however, Glover could not demonstrate prejudice because as noted above, the state’s evidence conclusively established that Glover did not act in self-defense. Accordingly, Glover’s ineffective assistance of counsel claim has no merit.

117In his final assignment of error, Glover argues that the imposed sentences are excessive because they place him in jail for the bulk of his adult life, fad to give him an opportunity to become a productive member of society, and serve no legitimate “penological purpose for a juvenile defendant.” Glover contends that the trial court failed to give appropriate weight to the critical factor of his youth as well as the important mitigating factors in this case that included provocation. He argues that he should have been sentenced to no more than the minimum 10 years in prison.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Watson, 46,572 (La.App.2d Cir.9/21/11), 73 So.3d 471. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 11s(La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves, 03-0518 (La.12/3/03), 861 So.2d 144; State v. Caldwell, 46,718 (La.App.2d Cir.11/2/11), 78 So.3d 799.

The second portion of the review requires that a determination be made regarding the constitutional exces-siveness of a sentence. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Washington, 46,568 (La. App.2d Cir.9/21/11), 73 So.3d 440, writ denied, 11-2305 (La.4/27/12), 86 So.3d 625.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Diaz, 46,750 (La.App.2d Cir.12/14/11), 81 So.3d 228. On review, an appellate court does not deter mine whether another sentence may have been more appropriate, 11flbut whether the trial court abused its discretion. State v. Williams, supra; State v. Free, 46,894 (La.App.2d Cir.1/25/12), 86 So.3d 29.

A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In this case, as a second felony offender, for the offenses of attempted manslaughter, Glover faced potential sentencing exposure of not less than 10 nor more than 40 years. Prior to his sentencing Glover apologized to the court, the victims and the victims’ families. Thereafter the court sentenced Glover after considering the following 894.1 factors:

1) The court determined that there existed an undue risk that during the period of a suspended sentence Glover would commit another crime based upon the fact that Glover was on probation for a very similar offense when he committed the present crime. The court noted that the facts of that case involved a silver revolver and an argument between Glover and a neighbor just months before the present offense. Glover shot at the neighbor’s house.
2) Glover was in need of correctional treatment based upon his being on probation for a similar offense at the time he fired shots in the present offense.
3) The court determined that a lesser sentence would deprecate the seriousness of the defendant’s crime in light of the fact that Glover repeatedly demonstrated that he was a violent offender.

The court next considered the following aggravating circumstances of the ease. Glover manifested deliberate cruelty to the victim in that he pulled out a pistol after an argument with the victim and began shooting. He hit two innocent bystanders who were children. The court also considered that Glover created a risk of death or great bodily harm in shooting into a crowd of people and used threats of actual violence in an earlier argument with the victim. The court observed that Glover used a dangerous weapon in the |2ncommission of the crime that involved multiple victims for which separate sentences have not been imposed. The court also determined that Glover foreseeably endangered human life by the discharge of a firearm during the commission or attempted commission of an offense which has as an element the use, attempted use, or threatened use of physical force against the person or property of another and which involved a substantial risk.

The court considered as mitigating factors the fact that the victim’s criminal conduct induced or facilitated the commission of the crime as the intended victim was a willing participant in the exchange. The court noted that both of the victims were brought in from a juvenile detention for armed robbery charges. The court also took into account Glover’s young age of 17 at the time of the offense in fashioning the imposed sentences.

After considering all of these factors, the court imposed concurrent sentences of 35 years at hard labor without benefit of parole, probation or suspension of sentence. In a motion to reconsider sentence, Glover argued that the court did not adequately weigh the mitigating factors presented by Glover’s youth, the circumstances of the crime and his expression of remorse and that the imposed sentences were constitutionally excessive.

Glover’s concurrent sentences of 35 years’ imprisonment at hard labor are in the upper range for a second felony offender who committed the crime of attempted manslaughter. Nevertheless, we fail to find that the trial judge abused its sentencing discretion in imposing these sentences. The record before us demonstrates an appropriate weighing of the mitigating factors by the trial court. Very thorough consideration was given by the court regarding both provocation and Glover’s age. Given the jury’s | ⅞1 rejection of Glover’s self-defense claim, the remaining facts show that it was Glover who violently and inappropriately responded to a verbal altercation by firing into a crowd of people. Such facts fail to support Glover’s claim that he acted under “strong provocation” and support the trial court’s evaluation of the facts.

Nor do we find merit to Glover’s argument that his age at the time of the offense is a “significant mitigating circumstance weighing in favor of a more lenient punishment.” A review of the cases cited in brief by Glover in support of this argument reveal many distinguishing facts from the present situation.

We recognize that Glover’s youth should be considered as a factor which affects his culpability and potential for rehabilitation. Yet, at the time of the offense, he was on probation for firing a gun at a house after a similar disagreement with another individual. Consideration of his lack of rehabilitation is appropriate in this case. That Glover has failed to benefit from prior leniency in sentencing is evidenced by his persistence in the very behavior that caused his previous arrest and conviction. His disregard of the law is also evidenced by his illegal possession of a gun. This pattern of serious conduct including Glover’s dangerous use of guns as a defense to verbal altercations between youths created the risk of death or great bodily harm to multiple individuals that is likely to recur. When balanced against |a2his continued disregard for the law and lives of others, his youth is outweighed by the gravity of his conduct and the resulting offenses. We find the imposed sentences to be appropriately tailored to this defendant and not out of proportion to the severity of this offenses. This assignment of error is without merit.

We find one error patent on the face of the record. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La.C.Cr.P. art. 882(A). Further, the appellate court may notice sentencing errors as error patent. State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.

La. R.S. 15:529.1(G) provides that a sentence imposed under the habitual offender statute shall be without benefit of probation or suspension of sentence only. There is no parole restriction. However if the underlying statute carries a denial of parole provision, the court may deny parole for the enhanced sentence. State v. Bobo, 46,225 (La.App.2d Cir.6/8/11), 77 So.3d 1, writ denied, 11-1524 (La.12/16/11), 76 So.3d 1202. However, when this crime was committed, the sentence for manslaughter provided no parole restriction. La. R.S. 14:31 Thus, the trial court erred in denying parole eligibility for Glover. We therefore amend his sentences to delete the denial of parole. In all other respects the sentences are affirmed.

Decree

For the foregoing reasons, Glover’s convictions are affirmed. His concurrent 35-year sentences are amended to delete the restrictions on parole eligibility, but are otherwise affirmed.

| ^CONVICTIONS AFFIRMED; SENTENCES AMENDED AND AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, SEXTON and HARRISON, JJ.

Rehearing denied.

      . On the day of sentencing, Glover also pled guilty to possession of a firearm by a convicted felon and received an agreed-upon sentence of 10 years at hard labor without benefit of parole, probation or suspension of sentence. The sentence was imposed concurrently with Glover’s sentences for attempted manslaughter. The three sentences were ordered to be served consecutively with Glover's remaining time on his earlier illegal use of a weapon conviction for which his probation was revoked.

      . Those cases, including State v. Paddie, 434 So.2d 392 (La.1983), State v. Sepulvado, 367 So.2d 762 (La.1979), and State v. Walker, 29,-877 (La.App.2d Cir. 10/29/97), 702 So.2d 18, involved youthful defendants with no criminal records or any previous tendency toward violence. Equally unpersuasive to our analysis are Graham v. Florida, - U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which concerned review of life sentences imposed without parole on juvenile non-homicide offenders and the propriety of execution of defendants who were under 18 years old at the time of their capital crimes.


author: PAINTER, Judge.

text:
    Nolan BENSON, Sr. v. ABC INSURANCE COMPANY, et al.
    Nos. 12-517, 12-385.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.

      Nolan J. Benson, Sr., Marksville, LA, PlaintifffAppellant, Appearing in Proper Person.
    Wesley Elmer, Marksville, LA, for Defendant/Appellee, Doug Anderson, Avo-yelles Parish Sheriff.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| plaintiff, Nolan J. Benson, Sr., in proper person, appeals the dismissal of his petition for damages on the ground of prescription. He also appeals the trial court’s denial of his motion for new trial. Finding that the filing of a petition with only a fictitiously named defendant does not interrupt prescription, we affirm both.

FACTS AND PROCEDURAL HISTORY

On July 28, 2010, Plaintiff was allegedly involved in some sort of altercation with deputies of the Avoyelles Parish Sheriffs Office who had just arrested, or were in the process of arresting, Plaintiffs son. On July 28, 2011, exactly one year after the incident at issue, Plaintiff filed a petition in proper person. In that petition, Plaintiff alleged that he was wrongfully arrested, detained, and tased. He also asserted claims for false arrest, false imprisonment, use of excessive force, defamation, and malicious prosecution. The only named defendant was “ABC Insurance Company.” He did not ask for service of the petition.

On October 18, 2011, more than one year after the incident at issue and some eighty-two days after the filing of the original petition, Plaintiff filed an amended petition naming Doug Anderson, in his capacity as Sheriff of Avoyelles Parish, as Defendant (the Sheriff). Service was requested and perfected upon the Sheriff. There is no indication in the record that service upon the insurance company has ever been requested.

The Sheriff filed an exception of prescription alleging that the naming of only a fictitious defendant in the original petition did not interrupt prescription. The trial court granted the exception and dismissed Plaintiff’s petition with prejudice. Plaintiff then filed a motion for new trial, arguing that he should be granted leave to amend his petition to assert claims under La.Civ. Code art. 3493.10, which has a two-year prescriptive period. The court denied the motion for new trial. Plaintiff filed an application for supervisory writs as well as this appeal. On June 27, 2012, this court |2rendered an opinion on the writ application indicating that the writ would be granted for the limited purpose of ordering the consolidation of the writ application with this appeal.

For the following reasons, we affirm the trial court’s grant of the exception of prescription in favor of the Sheriff as well as its denial of Plaintiff’s motion for new trial.

DISCUSSION

The parties may introduce evidence to support or controvert the peremptory exception of prescription if the grounds of the exception do not appear on the face of the petition. La.Code Civ.P. art. 931. In the absence of evidence, the trial court must decide the objection of prescription upon the facts as alleged in the petition, and it must accept all allegations contained therein as true. Hudson v. E. Baton Rouge Sch. Bd., 02-987, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 282

With respect to the standard of review applicable herein:

If evidence is introduced at the hearing on the peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard of review. Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. However, the questions presented here for our determination are purely legal ones, rather than factual ones, as the pertinent facts are undisputed. In a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court’s legal conclusions are not entitled to deference. Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La.1/30/04), 865 So.2d 34, 43.

TCC Contractors, Inc. v. Hosp. Serv. Dist. No.3 of Parish of Lafourche, 10-685, p. 8 (La.App. 1 Cir. 12/8/10), 52 So.3d 1103, 1107.

We find that this case presents only the determination of legal issues and so apply the de novo standard of review as to our review of the trial court’s ruling on the exception of prescription.

lsIn his original petition, filed July 28, 2011, Plaintiff made the following claims: that he was arrested without probable cause, detained, and wrongfully tased; that his rights under 42 U.S.C. § 1983 were violated because he was falsely arrested, falsely imprisoned, defamed, and subject to the use of excessive force and malicious prosecution. All of the claims asserted by Plaintiff in his original petition are subject to a one year prescriptive period. La.Civ.Code art. 3492; 42 U.S.C. § 1988.

Since the amended petition prescribed on its face, Plaintiff bears the burden of proving that his action is not prescribed because of an interruption or suspension of prescription. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502. In this case, Plaintiff submitted no evidence in opposition to the exception. He argues only that his claims against the Sheriff’s office are not prescribed because he timely filed suit against the Sheriffs insurer and merely identified the insurer by an incorrect name. We find no merit to this argument.

Only ABC Insurance Company, a fictitious defendant, is named as defendant. While Plaintiff does mention that ABC allegedly insures the Sheriffs office, he does not request service on the Sheriff. On October 18, 2011, Plaintiff amended his petition to add the Sheriff as a defendant. The amended petition does not purport to correctly name the insurance company or substitute the Sheriff in place of the insurer. The language of the amended petition is clear that the Sheriff is being added as a defendant. Our law is clear that “[prescription is not interrupted as to an actual defendant when only a fictitious defendant is named in a petition, unless prescription is interrupted by some other means.” Hill v. Shell Oil Co., 99-1322, p. 4 (La.App. 5 Cir. 4/25/00), 760 So.2d 511, 512-13.

This is not an issue of “relating back” as contemplated by La.Code Civ.P. art. 1153 since the amendment does not change the identity of a defendant. This amendment adds a defendant; it does not create a substitute defendant. Thus, we find that the original petition did not interrupt prescription as to Plaintiff’s claims against |4the Sheriff. We affirm the trial court’s granting of the Sheriff’s exception of prescription and the dismissal of Plaintiffs suit with prejudice.

We must next consider the trial court’s denial of Plaintiff’s motion for new trial. The standard of review on this issue is abuse of discretion. Campbell v. Tork, 2003-1341 (La.2/20/04), 870 So.2d 968.

Plaintiff based his motion for new trial on the assertion that he should have been given leave to amend his petition to add claims that the damages he allegedly sustained were the result of a crime of violence under La.R.S. 14:2 such that the prescriptive period would be two years, rather than one. That statute defines “crime of violence” as:

an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.

La.R.S. 14:2.

That statute also enumerates several offenses. The ones that might be applicable here are aggravated battery or aggravated assault. His original petition made no allegations or assertions in this regard. In his memorandum in support of the motion for new trial, Plaintiff advanced these claims for the first time and attempted to manipulate his situation to fit under the definition of “crime of violence.” However, he did not submit any evidence or testimony to prove these facts and assertions.

We are guided by our prior opinion in Malin v. Andrus Homes, Inc., 610 So.2d 223, 225-26 (La.App. 3 Cir.1992):

Plaintiff is required to point out to this court with a degree of sufficient certainty how the objection of prescription may be removed by amendment of the petition. Kerr v. Jefferson Truck Lines, B89 So.2d 729 (La.App. 4th Cir. 1980), writ denied, 396 So.2d 1351 (La.1981). In the ease sub judice, the objection of prescription was posed against Malm’s redhibition action. In the only petition she filed, which was never supplemented or amended prior to trial, plaintiff did not assert a breach of contract claim. lsShe first raised this issue in her motion for new trial. Under its clear wording, La.C.C.P. art. 934 does not contemplate allowing an amendment to state an entirely different cause of action with a longer prescriptive period in order to remove the effect of the peremptory exception. While the provisions of the article allowing amendment are mandatory when the objection may be removed by amendment, it does not allow amendment for plaintiff to speculate on unwarranted facts merely for purposes of defeating the exception. Miller v. Everett, 576 So.2d 1162 (La.App. 3rd Cir.1991). Clearly, to allow Malin to amend to state a contractual claim and to allege further facts concerning acknowledgment of prescription would be for this court to condone speculation on alleged facts that may or may not have occurred many years ago. In any event, this would not remove the objection of prescription against her redhibition claim. A plaintiff has no right to leave of court under La.C.C.P. art. 934 to amend where to do so would be “... a vain and useless act”. Ustica Enterprises, Inc. v. Costello, 434 So.2d 137 (La.App. 5th Cir.1983); Buxton v. Fireman’s Fund Insurance Co., 422 So.2d 647 (La.App. 3rd Cir.1982). For these reasons, we conclude that the trial court did not err in denying plaintiffs motion for a new trial to allow her to amend her petition.

As in Malin, we find that the trial court did not err in denying Plaintiffs motion for new trial. He is not entitled to amend his petition, which was untimely filed, to assert a new cause of action solely for the purpose of benefiting from a longer prescriptive period.

DECREE

After a de novo review of the record and for the foregoing reasons, we affirm the trial court’s granting of the Sheriffs exception of prescription and dismissal of Plaintiffs suit with prejudice. Finding no abuse of discretion, we also affirm the trial court’s denial of Plaintiffs motion for new trial. All costs of this appeal are assessed to Plaintiff/Appellant, Nolan Benson, Sr.

AFFIRMED.


author: EZELL, Judge.

text:
    Cynthia BRIDGES, Sec. Dept. of Rev., State of Louisiana v. NELSON INDUSTRIAL STEAM CO.
    Nos. CA 12-477, CA 12-478, CA 12-479.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.
    Rehearing Denied Dec. 19, 2012.

      William Boyce Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, Linda Sarradet Akchin, Kean Miller, Baton Rouge, LA, for Defendant/Appellant, Nelson Industrial Steam Co.
    Cheryl Moliere Kornick, Attorney at Law, New Orleans, LA, for Other, Louisiana Chemical Association.
    Russell Joseph States Jr., States & Lav-ergne, LLC, Charles, LA, for Plaintiff/Ap-pellee, Cynthia Bridges, Sec. Dept, of Rev., State of Louisiana.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

b Nelson Industrial Steam Company (NISCO) appeals the decision of the trial court granting summary judgment in favor of the Louisiana Department of Revenue (the State) and the Calcasieu Parish School System Sales and Use Tax Department (Calcasieu) in three consolidated cases concerning the application of the further processing exclusion from sales tax to its purchases of limestone and sand. For the following reasons, we hereby affirm the judgments of the trial court.

NISCO manufactures electricity and steam using Circulating Fluidized Boiler (CFB) technology. The CFBs produce heat energy which creates steam and activates turbines which generate electricity. NISCO uses petroleum coke (petcoke) as fuel in the CFBs. Petcoke contains sulfur, which if not captured, is emitted into the atmosphere. NISCO introduces limestone into the CFBs in order to control sulfur emissions. Its CFBs are specifically designed for the injection of limestone, and NISCO could not manufacture electricity and steam without the injection of limestone. Through the manufacturing process, limestone is turned into ash by the binding of the calcium in the limestone with the emitted sulfur. For a portion of the period at issue, NISCO also injected sand into the process in an attempt to prevent clogging of j-valves in the boiler system. NISCO sells all of the electricity generated to Entergy for resale to NIS-CO’s members and all of the steam produced to one of its members. It sells its ash by-product to a third party for use in various commercial, industrial, and environmental applications.

NISCO did not pay sales and use taxes on the limestone and sand used, claiming they were purchased for further processing and, therefore, exempt from sales taxes. The State filed two suits for the collection of tax and interest owed on the ^purchases of limestone and sand. In one of the suits, the State also sought a penalty for the delinquent taxes. NISCO filed one suit against Calcasieu for refund of sales tax, penalty, and interest paid under protest for the same purchases. All three suits were consolidated in the trial court and are consolidated on appeal.

All three parties filed motions for summary judgment. On September 16, 2011, a hearing was held on the motions. The trial court rendered a ruling in favor of the State and Calcasieu, granting their joint motion for summary judgment, denying NISCO’s cross motion, and awarding all taxes, penalties, and interest assessed in these matters. From that decision, NIS-CO appeals.

NISCO first claims that the trial court erred in granting the State’s motion for summary judgment where it alleges undisputed facts establish that the limestone and sand were purchased for further processing for sale. We disagree.

An appellate court reviews a trial court judgment on a motion for summary using the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. Specialty Co., Inc. v. Sonny Greer, Inc., 061827, p. 4 (La.5/22/07), 958 So.2d 634, 688. The motion should be granted only “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.” La.Code Civ.P. art. 966(B).

The Louisiana Supreme Court set forth the law regarding further processing exclusions from Louisiana sales and use tax as follows in International Paper, Inc. v. Bridges, 07-1151, pp. 10-23 (La.1/16/08), 972 So.2d 1121, 1128-35 (footnotes omitted) (first, second, sixth, seventh, and twelfth alterations in original):

| sLa.Rev.Stat. § 47:302 is the statutory provision which outlines the imposition of sales and use taxes. Specifically, La. RevStat. § 47:302(A) provides, in pertinent part:
There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein....
“Sale at retail” can take on different meanings, depending upon the taxing authority involved and/or the product(s) being sold. La.Rev.Stat. § 47:301(10)(a)(i) provides, in pertinent part:
Solely for the purposes of the imposition of the state sales and use tax, “retail sale” or “sale at retail” means a sale to a consumer or to any other person for any purpose other than for resale as tangible personal property.... (Emphasis added).
Furthermore, La.Rev.Stat. § 47:301(10)(c)(i)(aa) (i.e., the “further processing exclusion”) provides:
The term “sale at retail” does not include sale of materials for further processing into articles of tangible personal propertg for sale at retail. (Emphasis added).
While the issue of the proper interpretation of the “further processing exclusion” is not res nova, the Legislature has not yet delineated what, exactly, is meant by “materials for further processing into articles of tangible personal property.” However, there is a DOR rule which specifically addresses the “further processing exclusion,” and which may be found in the Louisiana Administrative Code. La. Admin. Code, Title 61, Part I, § 4301, Retail Sale or Sale at Retail (d) (2006)(“LAC 61:1.4301”), provides:
Sales of materials for further processing into articles of tangible personal property for subsequent sale at retail do not constitute retail sales. This exemption does not cover materials which are used in any process by which tangible personal property is produced, but only those materials which themselves are further processed into tangible personal property. Whether materials are further processed or simply used in the processing activity will depend entirely upon an analysis of the end product. Although any particular materials may be fully used, consumed, absorbed, dissipated or otherwise completely disappear during processing, if it does not become a recognizable 14and identifiable component which is of some benefit to the end product, it is not exempt under this provision. The fact that a material remained as a recognizable component of an end product by accident because the cost of removal from the end product was prohibitive or for any other reason, if it does not benefit the property by its presence, it was not material for further processing and the sale is not exempt under this provision. (Emphasis added).
It is from the aforementioned rule that a “three-pronged test” developed, in order to determine the taxability of those materials purchased for further processing. As the Board noted in its decision:
The Secretary’s regulation, LAC 61:1.4301(10) and the case law provides that in order to be “material for further processing,” as contemplated by the above statute, the raw materials or their component molecular parts must meet three criteria: (1) they must be of benefit to the end product; (2) they must be a recognizable and identifiable component of the end product, and (3) they must have been purchased for the purpose of reprocessing into the end product.
In Traigle v. PPG Industries, Inc., 332 So.2d 777 (La.1976), this Court examined whether the purchase of graphite blades, utilized in the manufacture of chlorine, was excluded from the sales and use tax provisions.... The Traigle Court concluded:
The Louisiana sales/use tax is a tax upon the sale at retail, use, consumption, distribution, or storage for use in consumption, of materials sold or used in Louisiana. La.R.S. 47:302(A). It is measured by the sales price if the item is sold at retail, or upon the cost price when not sold at retail but rather used, consumed, or stored for use or consumption. La.R.S. 47:S02(A).
Pertinently to the present issue, La. R.S. 47:301(10) defines “sale at retail” as: “ * * * A sale to a consumer or to any other person for any purpose other than for resale in the form of tangible personal property.... The term ‘sale at retail’ does not include sales of materials for further processing into articles of tangible personal property for sale at retail * * *.”
- [V]iewing the definition of La. R.S. 47:301(10) as a whole, the better or more reasonable interpretation, we believe, is 15that the substance cannot be regarded as purchased for processing “into” the ñnished article (and, thus, as non-taxable to the manufacturer), when in fact the “purpose” for which it is bought is not for incorporation “into” the manufactured product but rather onlg to be used in the process of producing the manufactured product for sale-at least where, as here, the inclusion of the waste residue of the substance results from an unintended (although unavoidable) inefficiency of the manufacturing process, is of no benefít to the product sold, and is of the nature of an impurity rather than of an integral part of the finished product.
Accordingly, the Traigle Court recognized that the “further processing exclusion” applied to those raw materials purposefully incorporated within the final products (ie., not incidentally/accidentally incorporated within the final products), such that said incorporation resulted in the raw materials providing integral and beneficial parts to the final products produced....
Several years after the Traigle decision, this Court was again faced with a question involving the taxability of raw materials utilized in the “further processing” of final products for resale. In Vulcan Foundry, Inc. v. McNamara, 414 So.2d 1193 (La.1982), [that court noted:]
It is clear from the evidence in this case that coke is purchased for the purpose of heating the scrap iron; the small amount of carbon in the ñnished product is incidental. The fact that using coke as a fuel has a beneficial side effect does not change the purpose for which it is bought. Accordingly, we conclude that Vulcan’s purchase of coke is as a “consumer” for a “purpose other than for resale,” that is, for its use as a heat source to melt scrap iron and not for further processing into an article of tangible property for sale at retail.
While recognizing that the carbon (from the coke) became an identifiable and beneficial component of the final products, the Vulcan Court focused upon the “purpose” for which the manufacturer purchased the raw material. As such, this Court concluded that the coke was subject to sales and use taxes because the presence of the carbon in the final products was merely incidental to the manufacturing process.
As we previously discussed, the “further processing exclusion,” which merely provides that “[t]he term “sale at retail” does not include |6sale of materials for further processing into articles of tangible personal property for sale at retail,” has been further explained by the DOR’s own administrative rule (ie., LAC 61:1.4301). From this rule, we recognize that raw materials “further processed” into end products are excluded from the sales and use tax provisions when: (1) the raw materials become recognizable and identifiable components of the end products; (2) the raw materials are beneficial to the end products; and (3) the raw materials are material for further processing, and as such, are purchased with the purpose of inclusion in the end products.
To be excluded from the sales and use tax provisions, we also agree that the raw materials must be purchased with the purpose of incorporating said materials into the end products....
Accordingly, to be excluded from sales and use tax, we find that the raw materials must have been purchased for the purpose of incorporation within the end products, as the raw materials must be material for the further processing of the final products produced.

It is clear from the record the purpose for which NISCO purchased the limestone and sand. Rick Zagar, NISCO’s operations manager, stated in his affidavit that the petcoke burners were used because they were the most economical way to generate electricity. He noted that federal regulations limit the amount of sulfur released into the air and that those regulations “recognized limestone injection as the ‘best available control technology’ (BACT) for controlling the emission of sulfur from these specific types of boilers.” He went on to state that the “CFB technology requires the use of limestone,” that “[ljimestone is required to be used in CFB technology,” and, most damningly, that “[tjhere are no other options available.” (Emphasis added.)

Sandi Boyles, NISCO’s business manager, reiterated in her deposition that the boilers used by NISCO could not operate to make electricity without limestone. Likewise, attached to one of her affidavits is an email from Johnnie Botley, another |7NISC0 business manager, to Calcasieu regarding the sand also at issue. Therein, Mr. Botley states (emphasis ours):

Sand is utilized in the NISCO process for injection into the circulating fluidized boiler along with petroleum coke and limestone for the purpose of generating electricity for sale. The sand is necessary in the operation of the circulating fluidized bed boiler to prevent agglomeration (hardening) of the coke and limestone ash which would block the normal process circulation of the fluidized bed thereby causing premature shutdown of the boiler and thus the loss of electrical power/steam production.

Thus, it is clear from NISCO’s own evidence that the purpose of the limestone was to comply with federal regulations and allow it to generate electricity for sale. NISCO even goes so far as to admit in brief that it “could not manufacture electricity and steam using CFB technology without the injection of limestone.” While NISCO is able to recoup some of the money it spends on limestone by selling the ash by-product, it is clear that the production of ash is not the purpose for which the limestone is purchased. The trial court made no error in its ruling that the limestone and sand were purchased to generate electricity and not for further processing. Accordingly, those purchases were not exempt from the sales and use tax.

NISCO next claims that the trial court erred in assessing penalties on the delinquent taxes because it claims it acted in good faith. Again, we disagree. As noted in Boyd Racing, LLC v. Fruge, 08-581, p. 9 (La.App. 3 Cir.11/5/08), 996 So.2d 659, 665, writ denied, 08-2835 (La.2/6/09), 999 So.2d 780:

This court has repeatedly held that a good faith defense is not available in tax delinquency cases, given the supreme court’s decision in St. John the Baptist Parish School Board v. Marbury-Pattillo Construction Co., Inc., 259 La. 1133, 254 So.2d 607 (1971). See Mercury Cellular Tel. Co. v. Calcasieu Parish, 00-318 (La.App. 3 Cir. 12/13/00), 773 So.2d 914, writ denied, 01-126 (La.3/16/01), 787 So.2d 314; Lake Charles Memorial Hosp. Parish of Calcasieu], 728 So.2d 454 [ (La.App. 3 Cir.1998) ].

We find that the narrow exception to this rule articulated in BP Oil Co. v. Plaquemines Parish Government, 93-1109 (La.9/6/94), 651 So.2d 1322, is inapplicable in the instant case. This assignment of error is without merit.

For the above reasons, we hereby affirm the judgments of the trial court. Costs of this appeal are assessed against NISCO.

AFFIRMED.

      . It should be further noted that NICSO produced electricity for years with natural gas burners that did not produce ash, further undercutting its claim that it intended to produce ash for sale. Moreover, while NISCO spent roughly $33,000,000 on limestone, it was able to sell the ash for a mere $5,000,000. While this amount clearly offsets some of the cost of producing electricity, it does not in any way change the reality that the limestone was purchased for the purpose of electrical generation, not for processing into ash.