dissenting.
I join Judge Johnston in his dissent. The n.'jority applies conflicting standards in an offer-type aggravated assault. They correctly apply a subjective, apparent ability standard, as seen through the victim’s eyes, when determining whether an assault was committed by the appellant. However, when determining whether the assault was aggravated, they change to an objective present ability standard to test the dangerousness of the weapon. This dual standard was rejected as “much too naive ... it cannot be approved” by the very case they cite as support for their position. United States v. Smith, 4 U.S.C.M.A. 41, 48, 15 C.M.R. 41, 48 (1954). This position also requires a further illogical step. They must then adopt a peculiar definition for a dangerous weapon that is contrary to common sense and common understanding and different than is used in any other situation in the military. We are taught from the first day of active duty that guns are dangerous.
Paragraph 54c(4)(a)(ii) of the current Manual for Courts-Martial specifically forbids a finding of aggravated assault with an unloaded pistol because it is incapable of inflicting death or grievous bodily harm. Although the conflicting and archaic Manual language is a nonbinding comment on the law, it is contrary to logic and should be eliminated by proper authority to avoid confusion. In Smith, the Court of Military Appeals recognized the illogical reasoning imposed by the Manual. “As a matter of sheer logic, it may be said to follow that, if we are to view the question of bare assault through the eyes of the victim, so also should we measure that of aggravation. However, the Manual has departed from the method of logic in at least two instances.” Smith, 15 C.M.R. at 47.
In my opinion, absent the Manual provision, the Smith court would have followed the logical extension of apparent ability reasoning in determining aggravation in the offer-type assault. They indicated as much when the court stated: “Although the Manual has elected to follow the subjective thinking of ‘apparent ability’ in the area of simple assault, it has not done so in that of aggravation. There it has adopted the objective approach of ‘present ability.’ Ours not to reason why.” Id. at 48 (emphasis added).
In an offer-type aggravated assault, the accused’s apparent ability to inflict death or grievous bodily harm and the victim’s fear thereof is always viewed from the victim’s perspective. But that fear must be a reasonable one. Thus if, as in this case, the victims reasonably feared death or grievously bodily harm was about to be inflicted upon them by the accused’s unlawful means or force, then an aggravated assault has been committed, regardless of the accused’s present ability or intent to inflict death or such injury. The fact finder decides whether the victim reasonably feared death or serious bodily injury.
Whether the weapon apparently is dangerous or used in a manner likely to result in death or grievous bodily harm are issues to be decided by the fact finder as part of the reasonableness of the victim’s fear and the intent of the accused. Thus, if the aimed pistol is such a distance from the victim that it clearly could not injure,- the reasonable *696man would not be afraid. If an accused inadvertently instills fear, he has no wrongful intent, hence, no aggravated assault. But, if one wrongfully seeks to instill fear of death or grievous bodily harm in another, and uses a means or force apparently capable of inflicting death or such injury and the victim reasonably so fears, then an aggravated assault has been inflicted.
In the case at bar, because of a perceived traffic insult, the appellant pointed a real, fully functioning, recently unloaded pistol at the midsection of the victim and said, “I oughta shoot you bitch.” The victim hysterically ran from the appellant due to real and reasonable fear that death or grievous bodily harm was likely to be inflicted at the appellant’s whim. The appellant accomplished exactly what he intended: that is, he wanted his victim to fear death or grievous bodily harm as a lesson to anyone daring to cross him. The possible foreseeable consequences of his act including armed response, armed intervention, and injury by hasty retreat, are limited only by one’s imagination. The appellant intended this to be more than a simple assault. The appellant pleaded guilty to and was found guilty of aggravated assault. I would affirm that finding.
Chief Judge CUTHBERT was present for oral argument, but did not participate in the decision of this ease due to reassignment.
APPENDIX
PROSECUTION EXHIBIT 1 FOR IDENTIFICATION
FORT WAINWRIGHT, ALASKA UNITED STATES v. TURNER, KETEMA K., Specialist 255-23-5026 B Company, 6th Engineer Battalion, 6th Infantry Division (Light), Ft. Wainwright, AK
STIPULATION OF FACT
It is hereby stipulated by and between the Prosecution and Defense, with the express consent of the accused that the following facts are true, accurate and susceptible of proof:
The accused is assigned to B Company, 6th Engineer Battalion, 6th Infantry Division (Light), Ft. Wainwright, Alaska. The accused entered active duty on 26 November 1990 and has remained continuously on active duty since that date.
On 30 July 1993, the accused purchased a 9mm Beretta semi-automatic handgun from the sports store at Fort Wainwright, Alaska. During the early morning hours of 31 July 1993, at approximately 0100 hours the accused was travelling in a red Mazda pickup driven by SPC Brian Victor. SPC Victor and the accused were both carrying their 9mm handguns in the vehicle with them. They had just left the Fort Wainwright installation and turned south on Cushman Street when a Ford Escort driven by Dana Kelley was following behind the accused. Dana Kelley and her passenger, Mary Williams, attempted to pass SPC Victor as he was driving unusually slow, however, SPC Victor sped up not allowing the two girls to pass. After both the vehicles turned right on to 27th Avenue, Dana Kelley and Mary Williams passed SPC Victor’s vehicle and proceeded to their apartment.
The accused and SPC Victor followed Dana Kelley, 18 years old, and Mary Williams, 20 years old, to their apartment and pulled up along side of them as they were getting out of their car. The accused grabbed his 9mm handgun and jumped out of the pickup confronting Dana Kelley with the handgun. The accused yelled words at Dana Kelley and cocked the handgun. He pointed the handgun at her midseetion, frightening Ms. Kelley and causing her to run terrified into the apartment. Once in the apartment she had her roommate call the police. The accused then proceeded around the front of the Ford Escort and confronted Mary Williams, stating to Ms. Williams, “I oughta shoot you bitch”, and pointing the handgun at her.
The accused then got back into the vehicle and left. Fairbanks police officer, Daniel Hoffman responded to the call and identified the red Mazda pickup travelling on 23rd Avenue. He stopped the vehicle and waited for additional police support to arrive. SPC
*697Victor and the accused were both arrested and identified by Dana Kelley and Mary Williams. Officer Hoflman found one 9mm semi-automatic handgun under the passenger seat, one 9mm semi-automatic handgun behind the passenger seat, and three fully loaded 9mm magazines and one box of 9mm ammunition in the glove box. The handguns were unloaded prior to the confrontation with Ms. Kelley and Ms. Williams, reloaded after-wards, and unloaded again prior to the stop and arrest of SPC Victor and the accused.
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Green Tab Memorandum Number 7, Privately Owned Weapons and Ammunition, dated 28 August 1992, states that while being transported in vehicles, weapons will be in a weapons case and will remain outside the immediate reach of any occupant of the vehicle. It also states that privately owned weapons will not be transported while loaded. The accused had a duty to obey Green Tab Memorandum Number 7 and failed to do so.
The accused has no legal justification for his actions and was at all times mentally responsible for his actions.