dissenting. In what may be fairly characterized as a rhetorical sleight-of-hand, the majority, while ostensibly “modifying” our previous holding in State v. Gaines (1989), 46 Ohio St. 3d 65, 545 N.E. 2d 68, has ignored its central premise and the plain language of R.C. 2929.71 and 2923.11(B).
Courts are empowered to apply statutes, particularly criminal enactments, as they are written and not as some would wish they had been written so as to achieve a desired result. The statutes at issue in the present case and in State v. Gaines, supra, are no exception. R.C. 2929.71 provides in relevant part:
*211“(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;
“(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.
U * * *
“(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 me 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 axiomatic that the state is obligated to prove each and every element of an offense beyond a reasonable doubt. The firearm specification statute enacted by the Ohio General Assembly defines a “firearm” in terms of its operability. Thus, operability is an essential element of the offense.
Accordingly, R.C. 2929.71(A) requires that the state establish beyond a reasonable doubt that appellant was in possession of an operable firearm at the time of the underlying offense. Far from meeting its burden of proof, the state has failed to adduce any evidence directed toward the operability of the firearm. The “evidence” relied upon by the majority is no more probative regarding the capabilities of the deadly weapon possessed by appellant than the witnesses’ descriptions of the gun used by Dennis Gaines. Indeed, the “facts and circumstances” deemed significant by the majority include the “descriptions from eyewitnesses” which this court correctly observed in Gaines to be of no utility in establishing whether a “firearm,” as defined by the legislature, was present. The other facts and circumstances identified by the majority are of even less utility. The significance that the majority attaches to the fact that the gun was “wrapped in a shirt” is puzzling at best. It would appear that an accused would be more likely to employ the aforementioned tactic if he were seeking to obscure from view a toy gun than if he were actually concealing an operable firearm. Similarly, one attempting to impress upon a sales clerk the need to be cooperative during a robbery will certainly seek, through his verbal representations, to convince the clerk that he possesses an operable firearm irrespective of the actual properties of the device employed. Indeed, where a “firearm” as defined by the legislature is not employed, the need to bluff is essential.
Consequently, the factors cited by the majority are, if anything, more consistent with a theory of innocence regarding the firearm specification than with a theory of guilt. Where evidence is equally consistent with a theory of innocence as it is with a theory of guilt it may not be relied upon to support a conviction. See State v. Gaines, supra, at 69, 545 N.E. 2d at *21272; State v. Kulig (1974), 37 Ohio St. 2d 157, 66 O.O. 2d 351, 309 N.E. 2d 897.
The reliance by the majority upon decisions of other jurisdictions is similarly unpersuasive. In Benson v. State (Wyo. 1982), 640 P. 2d 83, the weapon giving rise to the crime charged was admitted in evidence and thus formed a proper basis for a conviction under the statute in question. See State v. Gaines, supra, at 69, 545 N.E. 2d at 71. The conviction was not based upon the type of speculative “evidence” employed in the instant case. Moreover, as the majority readily concedes, the other decisions that it cites “interpret statutes that differ from R.C. 2929.71.” This is an understatement. The statutes that formed the basis of the intermediate appellate decisions in People v. Brooks (1984), 135 Mich. App. 193, 353 N.W. 2d 118; State v. Hillis (Mo. App. 1988), 748 S.W. 2d 694; and People v. Taylor (1984), 151 Cal. App. 3d 432, 199 Cal. Rptr. 6, did not define firearms in terms of their operability. Consequently, they are of no value to this court compared to the plain language employed by the General Assembly in R.C. 2929.71. R.C. 2929.71 clearly makes operability an essential element of the offense created thereby. Where there exists no competent evidence establishing this element, a jury may not convict on the basis of mere speculation. Under such circumstances, the state has failed to maintain its burden of proof.
Defining a firearm in terms of operability undoubtedly creates serious evidentiary problems for the state. Moreover, any deterrent value obtained by a firearm specification statute is certainly laudable. In this regard, I am in total agreement with the concerns expressed by the majority. However, any alteration of the statutory language must emanate from the General Assembly.1 It is not the function of this court to amend the statute under the guise of judicial interpretation. The rule of law is not enhanced by the conscious disregard of statutory language defining a criminal act. I must therefore dissent.
Indeed, the majority has provided an example of one legislative resolution of the issue. In State v. Millett (Me. 1978), 392 A. 2d 521, 524, the Supreme Judicial Court of Maine referred to the following definition of “firearm” contained in 17 Maine Revised Statutes Anno. Section 4001(2):
“Firearm. ‘Firearm’ shall include any pistol, revolver, rifle, shotgun, machinegun, automatic and semiautomatic rifle or other firearm as the term is commonly used, or any gun, device or instrument in the nature of a weapon from which may be fired or projected any solid projectile or slug, pellet, missile or bullet or any gas, vapor or other nocuous thing by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances; or any other instrument that has the appearance of a firearm even though not capable of discharging a projectile. ” (Emphasis sic in Millett.)
There is nothing to prevent the Ohio General Assembly from adopting a similar approach.