The sole issue presented for review in the instant appeal concerns the evidentiary basis necessary to require additional incarceration under the firearm specification statute. Defendant-appellee was convicted of aggravated robbery in violation of R.C. 2911.01. This section provides in relevant part:
“(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:
“(1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control;
"* * *
“(B) Whoever violates this section is guilty of aggravated robbery, an aggravated felony of the first degree.” (Emphasis added.)
“Deadly weapon” is defined in R.C. 2923.11(A) as follows:
“ ‘Deadly weapon’ means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”
In addition to his conviction for aggravated robbery, the jury further concluded that appellee was in possession of a firearm during the commission of the felony. The trial court thereafter imposed an additional term of three years’ actual incarceration pursuant to R.C. 2929.71. This section provides in pertinent part:
“(A) The court shall impose a term of actual incarceration of three years in addition to imposing a life sentence pursuant to section 2907.02, 2907.12, or 2929.02 of the Revised Code or an indefinite term of imprisonment pursuant to section 2929.11 of the Revised Code, if both of the following apply:
“(1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code;
*67“(2) The offender is also convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with, or prior to, the life sentence or the indefinite term of imprisonment.
"* * *
“(D) As used in this section:
“(1) ‘Firearm’ has the same meaning as in section 2923.11 of the Revised Code[.]”
R.C. 2923.11(B) defines “firearm” as follows:
“ ‘Firearm’ means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. ‘Firearm’ includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable.” (Emphasis added.)
It is the contention of the state that the terms “deadly weapon” and “firearm” are synonymous as applied to guns, and that evidence sufficient to support the conclusion that the accused was in possession of a gun that was a deadly weapon pursuant to R.C. 2911.01(A)(1) is also sufficient to establish that the accused was in possession of a firearm pursuant to R.C. 2929.71(A). This view is not supported by the statutory language.
As an initial matter, R.C. 2923.11 (B) defines “firearm” as a deadly weapon capable of expelling a projectile. If the General Assembly had intended that the two terms be synonymous there would have been no need to further define “firearm” in R.C. 2923.11(B) with respect to its operability. Moreover, there would be no need to separately define “deadly weapon” and “firearm” in R.C. 2923.11(A) and (B), respectively.
Secondly, if the requirements for the firearm specification contained in R.C. 2929.71 were satisfied merely by proof sufficient to support a conviction for aggravated robbery under R.C. 2911.01(A)(1), the firearm specification statute would be superfluous. If, indeed, the General Assembly intended to impose a three-year mandatory term of imprisonment for possession of a deadly weapon during the commission of a felony, it could have so provided within the framework of R.C. 2911.01(A)(1).1
The state relies upon State v. Vondenberg (1980), 61 Ohio St. 2d 285, 15 O.O. 3d 349, 401 N.E. 2d 437, to support its contention. However, Vondenberg is inapposite to the issue involved in this appeal. The syllabus to Vondenberg provides as follows:
*68“For purposes of establishing the crime of aggravated robbery, a jury is entitled to draw all the reasonable inferences from the evidence presented that the robbery was committed with the use of a gun, and it is not necessary that the prosecution prove that the gun was capable of firing a projectile.” (Emphasis added.)
Thus, Vondenberg was concerned only with the evidence necessary to establish the crime of aggravated robbery. That issue is not before this court. In point of fact, the firearm specification statute (effective July 1, 1983) was not in existence at the time Vondenberg was decided.
Consequently, commission of a felony while in the possession of an “instrument * * * capable of inflicting death, and designed or specially adapted for use as a weapon” is not synonymous with the commission of a felony while in the possession of a “deadly weapon capable of expelling or propelling * * * projectiles by the action of an explosive or combustible propellant.” Examples of these distinctions are numerous. One may use a BB gun (State v. Ewing [Mar. 27, 1980], Cuyahoga App. No. 41080, unreported) or a pellet gun (State v. Scales [Sept. 27, 1979], Cuyahoga App. No. 39763, unreported) in the commission of a theft offense and be found guilty of aggravated robbery. Nevertheless, on identical facts one would not be subject to the three-year firearm specification since such weapons, although considered deadly weapons under R.C. 2923.11(B), do not employ an “explosive or combustible propellant” so as to come within the purview of R.C. 2929.71(A) by virtue of the definition contained in R.C. 2923.11(B). State v. Gray (1984), 20 Ohio App. 3d 318, 20 OBR 420, 485 N.E. 2d 159. Conversely, where the weapon used is inoperable, it may nevertheless be considered a deadly weapon even though it is not a firearm. Accordingly, convictions for aggravated robbery have been upheld even where a toy gun or an inoperable gun was used in the commission of the theft offense since such devices could be used as bludgeons and were therefore “capable of inflicting death” pursuant to R.C. 2911.01(A)(1) and 2923.11(A). See State v. Hicks (1984), 14 Ohio App. 3d 25, 14 OBR 29, 469 N.E. 2d 992; State v. Marshall (1978), 61 Ohio App. 2d 84, 15 O.O. 3d 93, 399 N.E. 2d 112. Thus, proof of the firearm specification involves evidence in addition to that required to establish aggravated robbery.
While the United States Supreme Court has not squarely addressed the issue, in United States v. Brewer (C.A. 6, 1988), 841 F. 2d 667, 668, the Sixth Circuit Court of Appeals made the following observation concerning the decision of the Supreme Court in McMillan v. Pennsylvania (1986), 477 U.S. 79:
“[I]t appears that all nine members of the Court would require notice in the indictment and proof beyond a reasonable doubt of a fact that increases the punishment beyond the maximum set by the legislature for the elements of the offense.” (Emphasis added.)
Inasmuch as R.C. 2929.71(A) increases the penalty for aggravated robbery by three years where a firearm is used in its commission, the firearm specification must be proven beyond a reasonable doubt.
It is therefore our conclusion that R.C. 2923.11(B) and 2929.71(A) require that, prior to imposition of an additional term of three years’ actual incarceration for possession of a firearm during the commission of a felony, the state must prove beyond a reasonable doubt thafthe firearm was operable or *69could readily have been rendered operable at the time of the offense.
In the case at bar, the evidence adduced relative to the character of the weapon used is not sufficient to warrant conviction under the firearm specification. Admission into evidence of the firearm allegedly employed in the crime is not necessary to establish the specification. Rather, the fact may be established by circumstantial evidence (testimony as to gunshots, smell of gunpowder, bullets or bullet holes, etc.). Nevertheless, there must be some evidence relative to the gun’s operability. In the present case, there was testimony concerning the appearance of the gun and the witnesses’ subjective belief that it was operable. However, these lay witnesses could have drawn the same conclusion from the appearance of a toy gun. Absent any evidence tending to establish that the gun was operable, the firearm specification was not proved beyond a reasonable doubt. The evidence adduced was as consistent with facts insufficient to establish the firearm specification (e.g., a toy gun) as it was with facts sufficient to establish the specification (a firearm). Under such circumstances, the state has failed to satisfy its burden of proof. See State v. Kulig (1974), 37 Ohio St. 2d 157, 66 O.O. 2d 351, 309 N.E. 2d 897.
The judgment of the court of appeals is therefore affirmed and the cause is remanded to the trial court for proceedings not inconsistent with this opinion.
Judgment affirmed and cause remanded.
Moyer, C.J., Wright and H. Brown, JJ., concur. Holmes, Douglas and Resnick, JJ., separately dissent.In support of its view that R.C. 2929.71 should be interpreted in a manner inconsistent with its plain language, the dissent cites People, ex rel. Wood, v. Lacombe (1885), 99 N.Y. 43, 49, 1 N.E. 599, 600, for the proposition that strict adherence to the words employed by the Ohio General Assembly may be discarded in order to render criminal what is clearly not encompassed within the terms of the statute. However, rather than placing reliance upon the language of a decision rendered in the context of a civil proceeding by a court of another jurisdiction, we find it more appropriate to be guided by R.C. 2901.04(A) in deriving legislative intent. R.C. 2901.04(A) provides as follows:
“Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.” See, also, State v. Merriweather (1980), 64 Ohio St. 2d 57, 18 O.O. 3d 259, 413 N.E. 2d 790.
This is the standard which governs our decision today.