I respectfully dissent. I am of the opinion that the prosecution failed to prove any attempt to cause the victim physical harm, because I am convinced that State v. Tate (1978),54 Ohio St.2d 444, 8 O.O. 3d 441, 377 N.E.2d 778 (hereinafter"Tate") does not control the issues in the present case. Defendant should be discharged from count one and the case should be remanded because he was entitled to a jury instruction on assault as a lesser included offense of felonious assault as charged under count two.
The use defendant made of the knife is summarized in the majority opinion at page 264 above. I believe that at best, the knife was used to threaten the victim, not in an attempt to cause her physical harm. Both the police officer and the other witness testified that they did not see a knife in appellant's hands at any time throughout the struggle. The victim testified that the knife never touched her. Further, the record reveals that appellant did not swing or strike at the victim with the knife. It is undisputed that the physical harm suffered by the victim was the result of her head striking the pavement and not the result of any attack with the knife.
I distinguish Tate on the facts. The deadly weapon used inTate was a firearm, while the weapon in the instant case is a knife. The Ohio Supreme Court noted the unique nature of firearms when it stated in State v. Meek (1978), 53 Ohio St.2d 35, 7 O.O. 3d 121, 372 N.E.2d 341, citing Baker v. United States (C.A. 5, 1969), 412 F.2d 1069, 1071-1072, certiorari denied (1970),396 U.S. 1018:
"`* * * A gun is commonly known, regarded and treated by society as a dangerous device by both the reasonable man and the person at whom it is pointed, without pause to determine whether a round is in the chamber. * * *'" 53 Ohio St. 2d at 38, 7 O.O. 3d at 123, 372 N.E.2d at 343.
In addition, the legislature has acknowledged the inherently dangerous *Page 267 character of firearms in two enactments: R.C. 2929.71(A), which provides for an enhanced penalty of three years' actual incarceration for an offender convicted of a specification alleging he had a firearm on or about his person or under his control during the commission of a felony; and R.C.2951.02(F)(3), which denies probation or suspension of sentence, if the offense was not a violation of R.C. 2923.12 and was committed while the offender was armed with a firearm (or dangerous ordnance). Cf. State v. Kline (1983), 11 Ohio App.3d 208, 11 OBR 330, 464 N.E.2d 159 (wherein the Court of Appeals for the Sixth District held that the Tate decision dealt primarily with the meaning of the phrase "deadly weapon or dangerous ordnance" and not with the issue of whether there was sufficient evidence of an attempt by the defendant to cause physical harm by means of a deadly weapon).
I would hold that the trial court erred in overruling appellant's Crim. R. 29 motion as to count one because there was no evidence that appellant caused or attempted to cause physical harm to the victim with the knife. Appellant's second assignment of error should be sustained.
Because I would discharge defendant under count one for failure of proof, the charge made in count two, the evidence adduced by the prosecution thereunder, and the court's jury instructions on that count must be examined.
Count two of the indictment alleged that appellant knowingly caused serious physical harm to the victim. R.C. 2903.13, the assault statute, provides in pertinent part:
"(A) No person shall knowingly cause or attempt to causephysical harm to another.
"(B) No person shall recklessly cause serious physical harm to another." (Emphasis added.)
In State v. Wilkins (1980), 64 Ohio St.2d 382, 388, 18 O.O. 3d 528, 532, 415 N.E.2d 303, 308, the Supreme Court stated:
"* * * If under any reasonably view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given. The evidence must be considered in the light most favorable to [the] defendant."
The record reveals that appellant pounded the victim's head into the pavement several times. At trial, the victim testified that she required four to six stitches to close the cut on her head, and that she was in some pain at the time of trial for which she took aspirin. She has a scar in the area of her hairline. Both the police officer and the other independent witness testified that she was bleeding following the attack. However, the victim was not rendered unconscious; in fact, she walked about after the incident. She received no medical treatment other than the treatment in the emergency room immediately following the incident. I believe that the trier of fact could reasonably find that these injuries constitute "physical harm" as opposed to "serious physical harm." Therefore, appellant was entitled to a jury instruction on the lesser included offense of assault.
Appellant also argues that the trier of fact could reasonably find that his actions were reckless and not knowingly accomplished. R.C. 2903.13(B). I disagree, for the reason that I believe the trier of fact could not reasonably find that appellant acted recklessly.
Appellant's first assignment of error should be sustained for the reason that the trier of fact could reasonably find that the victim suffered "physical harm" as opposed to "serious physical harm."
I concur with my brothers that the third and fourth assignments of error *Page 268 are without merit and should be overruled insofar as they are directed to count two.
I would reverse the judgment below, discharge the appellant under count one of the indictment, and remand the case for further proceedings under count two of the indictment.