dissenting:
I respectfully dissent from the conclusion of the majority that the crime of disorderly conduct by reckless display of a firearm could not be, under the facts of this ease, a lesser included offense of aggravated assault. I agree with the majority in all other respects.
A requested instruction on a lesser included offense is proper only if the lesser offense is composed of some but not all of the elements of the greater crime so that it is impossible to commit the greater, without committing the lesser offense, and if the evidence supports an instruction on the lesser offense. State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). In determining whether it is impossible to com*508mit the greater offense without committing the lesser, a court should look to both the statutes and to the charging instruments. State v. Ennis, 142 Ariz. 311, 314, 689 P.2d 570, 573 (App.1984).
In this case, Angle was charged with aggravated assault under A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2) and requested an instruction on disorderly conduct by reckless display of a deadly weapon under A.R.S. § 13-2904(A)(6). The two elements of aggravated assault as charged were 1) intentionally placing a person in reasonable apprehension of imminent bodily injury by 2) use of a deadly weapon or dangerous instrument. The necessary elements of disorderly conduct under A.R.S. § 13-2904(A)(6) are 1) intentionally or knowingly disturbing a person’s peace or quiet, by 2) recklessly displaying a deadly weapon or dangerous instrument. I believe that Angle could not have committed aggravated assault without necessarily committing disorderly conduct by reckless display of a firearm.
In State v. Flores, 140 Ariz. 469, 474, 682 P.2d 1136, 1141, (App.1984), Division Two of this court held that disorderly conduct is not a lesser included offense of aggravated assault because intent to disturb, an element of the lesser offense, is not a necessary element of the greater offense. I believe, however, that as a matter of common sense it is impossible to put a person in reasonable apprehension of imminent bodily injury without also disturbing that person’s peace or quiet. See State v. Roberts, 7 Ohio App.3d 253, 455 N.E.2d 508, 509 (1982). As the majority points out, some courts which have held that disorderly conduct is not a lesser included offense of aggravated assault have done so on the theory that the former is an offense against the public order whereas the latter is an offense against the person. See Parham v. City of Opelika, 412 So.2d 1268, 1269 (Ala.Cr.App.1982) and State v. Pickering, 317 N.W.2d 926, 927 (S.D.1982). As noted in Roberts, that distinction is highly metaphysical and really ought not surmount the clear similarity between disturbing a person’s peace of mind and putting a person in apprehension of imminent physical injury.
The state contends that the requested lesser included offense instruction was properly refused because disorderly conduct under A.R.S. § 13-2904(A)(6) requires proof of reckless use of a deadly weapon while aggravated assault requires proof of the mere use of a deadly weapon. I disagree. The indictment against Angle clearly states that he intentionally placed his wife and the officers in reasonable apprehension of imminent bodily injury by using a deadly weapon. Thus for Angle to have been convicted of aggravated assault, the state would have had to prove that Angle intentionally used a deadly weapon to place the victims in reasonable apprehension of imminent bodily injury. Proof of intentional use of a deadly weapon is sufficient to prove the reckless use of one. A.R.S. § 13-202(C), states: “If acting recklessly establishes an element, that element is established if a person acts intentionally or knowingly.” Thus reckless display of a deadly weapon is included in aggravated assault cases, such as this one, when the assault, and hence the aggravated assault, could not have taken place but for the intentional use of a deadly weapon.
Having shown that it would have been impossible to prove aggravated assault in this case without also proving disorderly conduct by reckless display of a firearm, it is necessary to inquire if the evidence would support such an instruction. As to the officers, the evidence is clear. As the majority points out, there was a dispute as to whether the officers were in reasonable apprehension of imminent bodily injury. It is possible that the jury could have found that the officers were not in apprehension of imminent bodily injury but were merely disturbed, and that the defendant knew this or that all he intended to do was disturb their peace and quiet.
As to the wife, it is possible that a jury could have found that the defendant did not intend to put her in apprehension of imminent physical injury but merely intend*509ed to disturb her, or, perhaps what is equally reasonable, that he had no intent to either put her in apprehension of injury or to disturb her but merely continued his course of disorderly conduct knowing he was disturbing her, which would be enough to support a conviction under A.R.S. § 13-2904(A)(6). The jury should have been instructed on disorderly conduct with respect to the disturbance of the defendant’s wife’s peace and quiet.
What happened here would certainly support a conviction for aggravated assault or for attempted aggravated assault. But it is by no means beyond the range of possibility that the irrational and frustrated defendant, in a prolonged fit of high dudgeon, recklessly brandished weapons knowing that he was disturbing the peace of others without intending to place them in apprehension of immediate bodily injury. The jury should have had a chance to consider whether this was the case.
I would reverse and remand for a new trial.