STATE of Arizona, Appellee,
v.
Harold Arthur ANGLE, Appellant.
Nos. CR-86-0039-PR, 1 CA-CR 8506.
Supreme Court of Arizona, En Banc.
May 19, 1986.*479 Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Barbara M. Jarrett, Asst. Atty. Gen., Phoenix, for appellee.
Chester R. Lockwood, Jr., Prescott, for appellant.
GORDON, Vice Chief Justice.
The single issue for review in this case is whether disorderly conduct, A.R.S. § 13-2904(A)(6) constitutes a lesser included offense of aggravated assault, A.R.S. § 13-1204(A)(2). We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(3) and Ariz.R. Crim.P. 31.19.
Defendant, Harold Arthur Angle, was charged with three counts of aggravated assault while armed with a deadly weapon in violation of A.R.S. §§ 13-1203(A)(2), 13-1204(A)(2). The trial court gave jury instructions on aggravated assault and attempted aggravated assault. However, the trial court refused defendant's requested instruction on disorderly conduct by reckless display of a firearm in violation of A.R.S. § 13-1204(A)(6). The jury convicted defendant of three counts of attempted aggravated assault and he was sentenced to concurrent presumptive terms of six years imprisonment.
Defendant appealed his conviction and sentence and the court of appeals affirmed. State v. Angle, 149 Ariz. 499, 720 P.2d 100 (1985). We adopt the dissenting opinion of Judge Kleinschmidt and vacate the majority opinion as to this issue. We agree with the result of the majority as to all other issues.
Remanded for new trial.
CAMERON and FELDMAN, JJ., concur.
HOLOHAN, Chief Justice, dissenting.
Since the ruling of the trial court and the opinion of the majority of the Court of Appeals appears to me to be correct, I would affirm the judgment of the superior *480 court. Therefore, I dissent from the position of the majority.
HAYS, Justice.
I concur in Chief Justice Holohan's dissent.