holding that the state presented sufficient evidence of felonious assault “where the record demonstrates that the accused pointed a gun at another person, but it is undisputed that the gun was unloaded, that the accused knew it was unloaded, and that the accused made no attempt to pull the trigger or to use the weapon in any other manner as a deadly weapon”
How later courts described this case
- holding that the state presented sufficient evidence of felonious assault “where the record demonstrates that the accused pointed a gun at another person, but it is undisputed that the gun was unloaded, that the accused knew it was unloaded, and that the accused made no attempt to pull the trigger or to use the weapon in any other manner as a deadly weapon”
Written by the judges who cited it.
The opinion
Celebrezze, J.,
dissenting. Conspicuous by its absence is any reference, within the majority opinion, to evi *447 dence tending to prove the second element of the offense of felonious assault, viz., to cause or attempt to cause physical harm.
The majority concedes that the gun was unloaded, that appellee knew it was unloaded, and that no attempt was made to pull the trigger or to use the gun as a bludgeon. Thus, it would seem that appellee did not knowingly intend to cause physical harm, did not in fact cause physical harm, and did not commit a direct ineffectual act toward that result.
Certainly appellee’s behavior was criminal and warrants punishment. However, I cannot fairly vote to uphold thé conviction on the instant charge since the prosecution failed to prove a central element of that crime. In my opinion appellee should have been charged under E. C. 2903.21, the aggravated menacing statute, which section proscribes knowingly causing- another to believe that the offender will cause serious physical harm to that person. Although appellee’s conduct fits squarely within the definition of that crime, aggravated menacing is not a lesser included offense with regard to felonious assault (See State v. Beaty [1975], 45 Ohio App. 2d 127 ), and therefore appellee. should be discharged from custody. Accordingly, I dissent from the opinion of the majority.
W. Brown, J., concurs in the foregoing dissenting opinion. ...