dissenting.
I dissent.
The issue here is whether the trial court erred in imposing “dangerous offender sanctions” under ORS 161.725. The majority suggests that defendants are trying to reargue State v. Allen, 68 Or App 5, 680 P2d 997, rev den 297 Or 547 (1984), by asserting that robbery in the second degree does not *36contain endangerment as an element. That is not defendants’ point. They argue simply that the facts in this record do not support a finding that the life or safety of the victim was seriously endangered, so that a requirement of ORS 161.725(2) was not met.1
The sparse record consists of a stipulation by counsel and a brief appearance by the victim of the robbery. The parties agreed that both defendants participated in a robbery at about 8:30 a.m. on February 24,1986, in Deschutes County. They entered a real estate office and stole money; defendant Passer pointed a gun at the bookkeeper. The bookkeeper was alone in the office at the time of the robbery.
The trial court found that the state had failed to prove that Passer’s gun was loaded. Accordingly, defendants were convicted of rohbery in the second degree.
The bookkeeper testified that, when she responded to a knock on the door, Passer pointed a gun at her right side and said, “This is a robbery.” He held the gun about an inch from her rib cage; she could not recall whether the gun touched her. Passer walked her into an interior office and told her to put money into a bag; she did so. Passer had her sit down and then stand up again. He taped her wrists together behind her back, sat her down again, taped her to the chair, and put tape across her mouth. She was frightened and shaking. While Passer was putting tape across her mouth, he said, “I’m not going to hurt you.”
As Passer was placing the tape, Mastne appeared, wearing a mask. The victim had her back to Mastne and never saw whether he had a gun. She did not testify to any statements by Mastne. The two defendants took the money and left.
Neither defendant threatened to hit the victim with the gun (or, apparently, with anything else). After the initial encounter at the front door, she did not see a gun again. She was not physically injured. After defendants left, she was able to get up and walk down the hallway to an adjoining office, *37where she informed others of what had happened. (That last fact was stated by defense counsel and not challenged by the district attorney, but was not testified to directly.)
The trial court imposed dangerous offender sanctions under ORS 161.725(2). One of the findings a trial court must make is that the felony “seriously endangered the life or safety of another.” State v. Allen, supra, 68 Or App at 9, held that the proper inquiry is whether “someone’s life or safety was in fact endangered.” (Emphasis in original.) That standard is not met here.
The statute contemplates physical peril, rather than the terror that goes with being a victim. “Safety” means physical safety, rather than peace of mind. If it were otherwise, the fear that accompanies any “in person” criminal encounter would suffice to justify the enhanced penalty under ORS 161.725(2) in every face-to-face felony. The statute directs us to inquire about the objective dangerousness of the offender, however, not the subjective level of fear experienced by a victim. Whether or not we agree with this focus, it is the focus the legislature has mandated. It is not enough for the victim to be placed in “some” danger; the endangerment must be “serious.” In other words, the statute requires a finding that a defendant’s acts, objectively viewed, created a serious risk of death or injury to another.
If State v. Allen, supra, means that every instance of binding and gagging a second degree robbery victim meets the test, then it is wrong. See 68 Or App at 9; see also State v. Mitchell, 84 Or App 452, 456-67, 734 P2d 379 (1987). If Allen means that the answer depends on what took place, then this record fails to support a conclusion of serious endangerment. To be bound and gagged (a physical restraint) and frightened by an unloaded gun (an “implied” threat) is undeniably horrid, but it is not in fact a “serious” danger to “life or safety.” Certainly some instances of binding and gagging a second degree robbery victim seriously endanger the victim, such as rough handling, binding so tightly as to cut off circulation, leaving someone in an isolated location or at an isolated time of day, threatening additional harm, or placing someone in a very hot or very cold environment. That is not this case. Because it is not, the state failed to prove that ORS 161.725 applies. Therefore, I dissent.
*38Warden and Warren, JJ., join in this dissent.Defendants do not challenge the trial court’s finding that they suffered from “a severe personality disorder indicating a propensity toward criminal activity.” ORS 161.725(2).