dissenting. I must respectfully dissent because I believe the majority has misinterpreted the legislative purpose and intent of R.C. 2929.71.
The procedure to follow when interpreting a statute was well-stated many years ago in People, ex rel. Wood, v. Lacombe (1885), 99 N.Y. 43, 49, 1 N.E. 599, 600, and it remains true today. The court stated: “In the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is brought with the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit [the object] and purpose of a statute which are to be regarded in its interpretation; and if they find fair expression in the statute, it should be so construed as to carry out the legislative intent, even though such construction is contrary to the literal meaning of some provisions of the statute.”
With the foregoing in mind, at the time the statute in question was enacted there was a drastic rise in violent crimes involving the use of firearms, and therefore state legislatures throughout the country enacted statutes designed to curb violent crime. One of the major avenues utilized by state lawmakers was the adoption of enhancement statutes. The basic premise of this type of law was to “enhance” the sentence of a defendant convicted of an enumerated felony who used or possessed a firearm in the perpetration of said crime. By enacting R.C. 2929.71 in 1983, Ohio joined the growing number of states seeking to deter the use of guns in the commission of violent crimes.
The majority correctly states that the sole issue before us in the present case is the sufficiency of evidence necessary to impose additional incarceration under the firearm specification statute. However, this provision of the Revised Code does not expressly require the state to prove that a firearm was operable at the time of the offense in order to invoke the enhancement aspect of the firearm specification. Rather, .the statute merely requires the state to establish from the totality of the circumstances, including reasonable inferences from the evidence presented, that the defendant had a firearm on or about his person or under his control. Indeed, on its very face R.C. 2929.71 requires no more; the statute does not state that the gun must be displayed, discharged or used in the commission of a felony. There simply is no mention of the firearm’s operability contained within this statute. In addition, the very definition of “firearm” under R.C. 2923.11(B) includes an unloaded firearm.
The Supreme Court of New Jersey was presented with the identical issue in State v. Gantt (1986), 101 N. J. 573, 503 A. 2d 849. Therein, the court framed the question before it as follows: “* * * We limited our grant of certification to the single issue of whether a firearm must be proven operable before * * * sentence may be imposed.”4 Id. at 578, 503 A. 2d at 851. The court held that the New Jersey *72statute providing for mandatory imprisonment for those who use or possess a firearm in the commission of an enumerated felony contemplated a firearm not in terms of the device’s current operability, but in terms of its original design. For this reason, the Supreme Court of New Jersey concluded that the state need only prove that the weapon involved was a firearm, and the evidence “* * * requires neither proof nor a court finding that the weapon was operable. The court need be satisfied only that the device was originally designed to deliver a potentially-lethal projectile and hence ‘real.’ * * * In addition, we note in particular that an object’s authentic design may be inferred from appearance or based on lay testimony, but in no case is it dependent upon empirical examination of the weapon.” Id. at 589-590, 503 A. 2d at 857.
This ruling of the New Jersey Supreme Court is consistent with decisions from other jurisdictions as well. See, e.g., State v. Millett (Me. 1978), 392 A. 2d 521, 527-528 (jury warranted to find, on the basis of lay testimony describing instrument projecting from defendant’s belt, that weapon was a real gun and it was not necessary for state to prove operability); Benson v. State (Wyo. 1982), 640 P. 2d 83, 86, certiorari denied (1982), 456 U.S. 1006 (absent defendant-appellant’s introduction of evidence that the firearm was inoperable, it is not error to fail to instruct the jury that operability is an essential element in firearms-possession conviction); People v. Brooks (1984), 135 Mich. App. 193, 196-198, 353 N.W. 2d 118, 120-121 (operability of a firearm is irrelevant to the determination of guilt under a felony-firearm statute imposing two-year mandatory minimum sentences); People v. Taylor (1984), 151 Cal. App. 3d 432, 436-437, 199 Cal. Rptr. 6, 9-10 (proof of operability is not essential to conviction for firearms-possession offense or to imposition of enhanced sentence for felonies committed while armed); State v. Hillis (Mo. App. 1988), 748 S.W. 2d 694 (prosecution for armed criminal action did not require proof that gun used during robbery was operable).
It makes no sense when considering the legislative purpose in enacting R.C. 2929.71 that a higher degree of proof would be required than is required in the case of establishing the elements of aggravated robbery. We have held that to establish an aggravated robbery conviction, the jury may draw reasonable inferences from the evidence that the robbery was committed with the use of a gun, but that it was not necessary for the state to prove the gun was capable of firing a projectile, i.e., was “operable.” See State v. Vondenberg (1980), 61 Ohio St. 2d 285, 15 O.O. 3d 349, 401 N.E. 2d 437, syllabus. It is clear that while Vondenberg was concerned only with the evidence to support the crime of aggravated robbery, Vondenberg is instructive as to the issue before us, and not inapposite. There is no substantial reason for requiring a higher degree of proof of a firearm than we already have required for a conviction of aggravated robbery.
The reasoning found in State v. Jordan (1987), 31 Ohio App. 3d 187, 31 OBR 353, 509 N.E. 2d 1278, is persuasive wherein the court determined *73that if the record contains credible evidence that an instrument variously described as a toy, starter pistol, or blank gun was used in an aggravated robbery and the instrument was not available for testing, it was not necessary for the state to prove the instrument (handgun) could actually fire a projectile in order to convict for aggravated robbery and also establish the firearm specification. Further, the court held that inferences of the deadly nature of the instrument are permissible from the facts and circumstances of its use. The court held that the rationale of Vondenberg applies to the firearm specification with the same force as it applies to aggravated robbery.
Turning now to the facts of the present case, the state offered the testimony of three witnesses, all of whom testified they clearly saw appellee with a gun in his possession. The majority goes so far as to cite the pertinent testimony from two of the three witnesses, and still finds there was insufficient evidence to support the invocation of R.C. 2929.71. Based on the above case law, and the evidence in this case, I disagree with the decision reached by the majority as to the sufficiency of the evidence. The clear legislative purpose of the firearms-specification statute must be kept in mind, that being, to deter the use of guns in the commission of a felony, and to prevent the kind of violence that often attends the use of firearms in the perpetration of a felony. The definition of “firearm,” as used in both R.C. 2929.71 and 2923.11(B), does not envision the instrument in terms of its operability, but rather its inherent and peculiar dangerousness. By holding that the state must prove a firearm’s operability, the majority rewards the sophisticated criminal who disposes of the gun before being apprehended, so as to avoid the firearm specification. The realities of law enforcement simply do not often afford the fortuitous act of catching a felon “red-handed.” This is rarely the case. In the majority of aggravated robbery cases the perpetrator is apprehended after the crime takes place and the gun is seldom recovered.
Furthermore, while the majority opinion concedes that the actual firearm need not always be introduced into evidence, it suggests circumstantial evidence, such as hearing gunshots, smelling gunpowder, or seeing bullet holes will suffice to establish operability. This is akin to requiring that the criminal actually fire the gun, and either miss, wound or kill an innocent victim, which is the exact harm the statute seeks to prevent. It is inconceivable that this was the General Assembly’s intent when enacting R.C. 2929.71. The majority’s decision today virtually renders the firearms-specification statute ineffective in Ohio. All that should be required under this statute is that the state prove from the totality of the circumstances, including reasonable inferences from the attendant facts and the testimony of lay witnesses, that a defendant had a firearm on or about his person or under his control. No greater proof should be required than what is necessary for an aggravated robbery conviction. Because the majority opinion effectively eliminates the application of the firearm specification’s enhancement provisions in all cases except those where a criminal is in possession of the gun when apprehended or leaves evidence of the gun’s operability at the scene by reason of having fired the weapon, I must respectfully dissent.
Douglas, J., concurs in the foregoing dissenting opinion.*74[[Image here]]
*75[[Image here]]
The court went on to note that it was only addressing the relevance of operability in the context of sentencing. In this aspect the New Jersey statute (N.J.S.A. 2C:43) *72parallels R.C. 2929.71, since neither statute creates a new offense, but rather enhances the sentence when a firearm is present. See Stake v. Price (1985), 24 Ohio App. 3d 186, 24 OBR 277, 493 N.E. 2d 1372; State v. Loines (1984), 20 Ohio App. 3d 69, 20 OBR 88, 484 N.E. 2d 727.