concurring. I concur in the majority opinion and write to emphasize the importance of the conditional language in the syllabus that suggests that additional evidence regarding the actor’s intention may enable a jury to find that the act of pointing a deadly weapon at another is a felonious assault. I agree that, generally, the mere act of pointing a deadly weapon at another person does not constitute a “felonious assault” as defined by R.C. 2903.11(A)(2). However, there are circumstances, not in the facts of this case, in which a defendant may, for instance, have engaged in a series of shootings either on the day of the crime in question or under similar circumstances to the act in question. The following two examples should be helpful: (1) the defendant has fired a deadly weapon at the same person on more than one occasion in the past and is now being tried for felonious assault for having pointed a deadly weapon at the same person, with evidence of no other conduct; (2) the defendant is charged with felonious assault for having pointed a deadly weapon at another person, with evidence of no other conduct except that defendant fired a deadly weapon at one or more people on the same day as the incident in question.
In both examples I believe the evidence of defendant’s other conduct could be used to show that, although defendant in the incident in question did nothing more than point a deadly weapon at another person, that act constituted a substantial step toward causing physical harm.
H. Brown, J.Although I agree with most of the legal principles articulated in the majority opinion, I must respectfully dissent as to the application of that law to the facts before us in this case.
I concur in the majority’s analysis of State v. Woods (1976), 48 Ohio St. 2d 127, 2 O.O. 3d 289, 357 N.E. 2d 1059, and the commentary to Section 5.01 of the Model Penal Code. To constitute an “attempt” to commit a crime, the defendant must have taken a “substantial step” towards commission of the crime.
This court did not hold in State v. Tate (1978), 54 Ohio St. 2d 444, 8 O.O. 3d 441, 377 N.E. 2d 778, that the mere pointing of a firearm at a person would constitute “an attempt to cause physical harm to” that person within the meaning of R.C. 2903.11(A)(2).2 As the majority herein correctly notes, Tate dealt solely with the question of whether an unloaded gun used in an assault would constitute a “deadly weapon” as defined in R.C. 2923.11.
The dispositive question in this case is whether Brooks, the appellee, took a “substantial step in a course of conduct planned to culminate in his *197commission of the crime.” Woods, supra, paragraph one of the syllabus.
The testimony established that Brooks entered the Hub-Lon Lounge in Akron on November 7, 1986. He became involved in an argument with a barmaid. Brooks drew a handgun, pointed it at the barmaid, and threatened to kill her. When the manager of the bar went to call the police, Brooks fled.
These facts do not establish a “substantial step” towards the commission of felonious assault. The majority acknowledges that in drawing a gun and aiming it at the victim, Brooks did not take the substantial step required to constitute an attempt to cause physical harm. The majority finds that the substantial step was taken when Brooks threatened to kill the barmaid. The threat to kill was menacing. However, Brooks was no closer to the commission of an assault than he was before he made the threat. The threat would indicate an “intent” to cause physical harm if Brooks had fired the gun. However, intent to commit a crime is not equivalent to an “attempt” to commit that crime. Similarly, the fact that a volatile exchange occurred does not alter the fact that the only action taken by Brooks towards commission of an assault was the drawing and aiming of the handgun. Brooks’ conduct presents a clear case of aggravated menacing.3 It is not an “attempt to cause physical harm to another,” and, accordingly, is not felonious assault, attempted murder or aggravated assault.
For the foregoing reasons, I would affirm the decision of the court of appeals.
Wright, J., concurs in the foregoing opinion.See, e.g., State v. Sunderland (Dec. 19, 1985), Cuyahoga App. No. 49950, unreported, wherein the Court of Appeals for Cuyahoga County held to the contrary.
R.C. 2903.21 provides:
“(A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of such other person or member of his immediate family.
“(B) Whoever violates this section is guilty of aggravated menacing, a misdemeanor of the first degree.”