dissenting.
As framed by the parties, this case presents a question of first impression: whether, under OAR 213-004-0006, the trial court erred when it imposed the sentence on Count 4 based on defendant’s convictions on Counts 1 and 2. Defendant argues that his convictions on Counts 1, 2, and 4 were the result of a continuous and uninterrupted course of conduct against the same victim and, therefore, the court erred when it reconstituted defendant’s criminal history score on Count 4 based on his convictions on Counts 1 and 2 and thereafter imposed a 14-month prison term after the revocation of defendant’s probation. In the majority’s view, defendant had only one overarching criminal objective and the fact that he formed an additional criminal objective when he committed the crime of assault against the victim is of no legal consequence. For the reasons that follow, I respectfully disagree with the majority’s conclusion that the addition of another criminal objective does not authorize the imposition of a separate sentence for the commission of a separate crime.
Preliminarily, the majority and I do not appear to disagree on what the record expresses regarding the events that led to defendant’s convictions. Rather, we disagree on the legal import of those facts for purposes of sentencing under OAR 213-004-0006.1 Also, we agree that the primary *327test for determining whether defendant had more than one criminal objective is not satisfied by the facts in this case in that Counts 2 and 4 are not so interrelated that a complete account of the details of Count 2 cannot be described without referring to the details of Count 4, and vice versa.
With those understandings in mind, I turn to the allegations of the charging instrument which provide the foundation for defendant’s convictions. Count 2 alleges that defendant committed the crime of menacing by “intentionally attempting] to place [M] in fear of imminent serious physical injury by words or conduct[.]” Count 4 alleges that defendant committed the crime of felony assault in the fourth degree constituting domestic violence by “recklessly causing] physical injury to [M], the said acts having been committed in the immediate presence of, or witnessed by a minor child or stepchild of the defendant or victim, or by a minor child residing within the household of the defendant or of [M].”
Factually, the circumstances in this case involve three people, defendant, his wife, M, and defendant’s son, C, and their interactions during a time period that began at approximately 9:30 p.m. and ended about 3:00 a.m. The circumstances underlying the allegation in Count 2 are that defendant and M became involved in a violent argument regarding defendant’s claim that M had been cheating on him with his friend, R, including an incident during which defendant pulled M’s hair. Defendant told M that she had to leave, and M told defendant that he needed to leave. The argument “went on for hours.” At some point in time, and after defendant had accused M of hiding objects in the bathroom, they went into the bathroom. Defendant, pointing to cut marks on the sink, accused M of cutting cocaine, an accusation that M denied.
Defendant then left the bathroom and went into the kitchen. Defendant grabbed a kitchen knife, placed it in M’s hand, screamed at her, and urged her to kill him. M forced defendant to let go of her hand and fled to the living room in *328order to call the police. Before she could call 9-1-1, defendant pulled the phone cord from the wall. M then left the living room and went into C’s room. As is evident from the above description, defendant’s criminal objective during the above time period in the kitchen and the living room was to cause M to be in fear of imminent serious physical injury and was unrelated to C, who was not present in the kitchen or living room at the time.2
After departing from the living room, M attempted to leave the house with C. There is no evidence that M desired or attempted to leave the residence before that point in time. When M entered C’s bedroom, C climbed down from his bunk bed and embraced her. Defendant followed M into C’s bedroom, stating to her that he was not doing anything to frighten C and accusing M of brainwashing C. The conduct for which defendant was convicted in Counts 4, 5, and 6 occurred thereafter in C’s bedroom.
That conduct is described in the record by M’s statements at defendant’s stipulated facts trial:
“[Defendant] then pulled [C] and I apart and started shaking me and threw me into a bookshelf. I then saw [C] flying to the ladder of his bunk bed and heard [C] groan. [Defendant] told him to stop acting like he had just hurt him, that he had not thrown him. [Defendant] then grabbed [C] and slammed his face first into the ladder and told him to get the fuck up on his bed and stay there. [C] was so scared he was saying Yes, sir; yes, sir.’
“[Defendant] then shoved me out of [C]’s room and was holding the door shut. [Defendant] was telling [C], ‘I love you son. [M] is brainwashing you.’ I got back into the room and told [defendant] that it was not okay to bring this fight in front of [C]. [Defendant] said I had done that by trying to — leaving with [C].”
Defendant then left C’s bedroom, went back into C’s room “still ranting,” then went back to the living room and stated that he “was going to the store for cigarettes” and that “[C] *329and I better not — better be here when he got back.” Defendant then left the residence and did not return except to obtain a blanket so that he could sleep in a van.
As the result of his conduct in C’s bedroom, defendant was convicted of assaulting M in the presence of C (Count 4), assaulting C (Count 5), and recklessly endangering the welfare of C (Count 6), as well as misdemeanor assault in the fourth degree and menacing arising out of his conduct that occurred before M went into the bedroom. At sentencing, the trial court ruled that defendant’s convictions on Counts 1 and 2 arose out of the same criminal episode but that the conduct that occurred in C’s bedroom constituted a separate criminal episode. That ruling resulted in an enhancement of defendant’s criminal history score for purposes of sentencing on Count 4. In the majority’s view, that ruling was error. Although it acknowledges that defendant formed a discrete criminal objective in the bedroom to prevent M and C from leaving the residence that he had not held previously, it characterizes that objective as a mere “additional objective” that “does not detract from the focus on the overarching criminal objective that is required under a proper application of the standard that the legislature established in ORS 131.505(4) to protect people against double jeopardy.” 250 Or App at 325 n 6. The issue therefore is whether the majority has reached the correct legal conclusion based on the above facts.
In State v. Bryant, 245 Or App 519, 263 P3d 368 (2011), this court explained:
“ ‘[A] defendant’s criminal history score is used to calculate the sentence the court is to impose. OAR 213-004-0006. The score is determined by several factors, including the number and character of the offender’s prior convictions. Id. When multiple convictions occur in the same proceeding, ones occurring in an earlier criminal episode may be used to recalculate the defendant’s criminal history score with respect to convictions stemming from a later criminal episode. State v. Bucholz, 317 Or 309, 317, 855 P2d 1100 (1993); State v. Allen, 151 Or App 281, 290-91, 948 P2d 745 (1997). In contrast, when a defendant’s multiple convictions stem from the same criminal episode, his criminal *330history score remains the same with respect to all of those convictions.’ ”
Id. at 522 (quoting State v. Norman, 216 Or App 475, 485-86, 174 P3d 598 (2007), vac’d on other grounds, 345 Or 319, 207 P3d 423 (2008)) (emphasis omitted). As noted above, one circumstance that could determine whether there are multiple criminal episodes for purposes of OAR 213-004-0006 is whether the circumstances are so interrelated that a complete account of one offense cannot be related without relating the details of the others. Bryant, 245 Or App at 523. If that test is applied, the trial court did not err.
The majority’s alternative proposed test is rooted in former jeopardy principles as expressed in ORS 131.505(4). That statute provides that a criminal episode means “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstance that such conduct is directed to the accomplishment of a single criminal objective.” Nothing in the language of the statute supports the understanding that an additionally acquired criminal objective that operates to either supplant or accompany an initial criminal objective will have the legal effect of prohibiting a separate conviction and/or sentence for the conduct that carries out that objective.
Rather than being based on the language of ORS 131.505(4), the majority’s “additional criminal objective” rule appears to be derived from its interpretation of the holdings in State v. Boyd, 271 Or 558, 533 P2d 795 (1975), and State v. Kautz, 179 Or App 458, 39 P3d 937 (2002). It is therefore critical to the analysis that Boyd and Kautz be understood for what they hold and what they do not hold. In Boyd, the indictment against the defendant charging him with possession of controlled substances had been dismissed because of a prior unsuccessful prosecution of the defendant for theft arising from the possession of stolen property. On review, the Supreme Court held that the statutory bar in ORS 131.505(4) and the “same act or transaction” in permissive joinder statutes were synonymous. 271 Or at 565-66. The practical effect of that conclusion, according to the court, was that, whenever a prosecutor becomes aware of multiple charges facing a defendant, the prosecutor must make a determination about *331whether they arose out of the same criminal episode. In the case before it, the court held that, because the possession of the television set and the drugs existed at the same place and time, there existed only a single criminal episode, and therefore, the prior unsuccessful prosecution for theft barred the subsequent prosecution for possession of controlled substances. Id. at 570-71.
As is evident from the above description, the majority’s construct regarding the enhancement of a sentencing factor does not find support from the facts or the holding in Boyd. Rather, the majority relies on language in footnotes 4 and 5 of the opinion. Footnote 4 refers to the attempt by the court to clarify how the phrase “same act or transaction” as used in State v. Brown, 262 Or 442, 497 P2d 1191 (1972),3 and the phrase “same criminal episode” found in ORS 131.505(4) relate to each other. Boyd, 271 Or at 560. In footnote 4, the Boyd court states, in part,
“This finding of equivalence is dependent upon the meaning given ‘circumstances’ and ‘directed to the accomplishment of a single criminal objective’ in ORS 131.505(4). It is possible to construe these terms so narrowly that ‘same criminal episode’ would fail to include a wide range of cases which fall clearly within the intention of Brown. Even the facts of Brown itself might not fall within a narrow reading of ORS 131.505(4).”
271 Or at 565 n 4 (emphasis in original). In footnote 5, the Boyd court states,
“This test, based upon the cross-relationships between the facts of each of the charges is not, however, broad enough to cover all factual situations where the double jeopardy principle would require joinder. It should be observed that the single episode definition in ORS 131.505(4) is formulated upon the hypothesis that the accused has engaged in conduct which involves a sequence of events that flow in a continuous and uninterrupted way *332and that all of these events can be plotted on a plane of time, as where the accused is charged with killing a teller in the course of robbing a bank, or where a bank cashier makes a series of false reports to the commissioner of banking to conceal a series of thefts of money from the bank.
“The statute was not intended to deal with the situation where there is only one act which results in the commission of multiple crimes as where the accused kills two victims by firing one bullet or where (under prior Oregon law) the accused is charged with larceny and shoplifting for the same theft, or where, as in State v. Brown, the accused is charged with carrying a concealed weapon and with being a convict in possession of a concealable weapon.”
271 Or at 566 n 5 (emphasis in original).
In Kautz, the issue was whether a burglary and a robbery committed by the defendant were part of the same criminal episode for purposes of determining whether the trial court was authorized to impose consecutive sentences for the crimes. The predicate to the imposition of consecutive sentences under the sentencing guidelines is whether the crimes were committed as part of the same criminal episode. While in the course of committing the burglary, the defendant grabbed a gun that he had stolen and pointed it at the property owner who had surprised him. Telling the property owner to “back off!” the defendant escaped by running through a hedge and disappearing into a nearby field. Observing that the Boyd court had held that a “criminal episode” is synonymous with the phrase “same act or transaction,” and applying ORS 131.505(4) to the facts of the case, we utilized the test of whether the burglary and robbery were so joined in “time, place and circumstance that a complete account of each charge cannot be related without also relating the details of the other charge.” Kautz, 179 Or App at 466. Although the state argued that the defendant had dual criminal objectives — the objective of the burglary was to steal the victim’s property and the objective of the robbery was to threaten the victim so that the defendant could escape — we rejected that argument. We explained,
“While [the] defendant may have acquired an additional criminal objective to escape when confronted by [the victim], his earlier objective to steal [the victim’s] property *333continued during the course of all of the events. Because the facts underlying the robbery and burglary were so closely joined in time, place and circumstances as to show that [the] defendant continued to pursue the same criminal objective to deprive [the victim] of his property, we conclude that the trial court erred in concluding that the burglary and the robbery were separate criminal episodes.” .
Id. at 467 (footnote omitted).
When correctly understood, neither ORS 131.505(4) nor the case law supports the majority’s conclusion that the trial court erred by using the convictions for Counts 1 and 2 in enhancing the criminal risk history score for purposes of imposing a sentence on Count 4.4 The established test under Kautz for determining whether the statute governs is whether the crimes committed are not so closely joined in time, place, and circumstance so that one could not be related without reference to the other. The majority concedes that the conduct underlying Counts 1 and 2 in this case could be related without reference to what occurred to M and to C in the bedroom. Moreover, what distinguishes this case from Kautz are the facts themselves. In Kautz, the defendant threatened the use of a weapon to facilitate or carry out the commission of his initial and sole crimina] objective. In this case, when defendant followed M into the bedroom and assaulted her, that assault was unrelated to the reasons underlying his earlier conduct. Rather, his objective in assaulting her was to prevent her from leaving with C, an objective that he had not previously held with regard to his *334earlier menacing and assaultive conduct. Defendant’s conduct may have been continuous and uninterrupted, but it was not directed at the accomplishment of a single criminal objective as the statute requires.5
For these reasons, I dissent.
The legal determination that convictions for crimes arise out of separate criminal episodes is based on a factual finding that the acts that give rise to the *327convictions are not part of continuous and uninterrupted conduct that is so joined in time, place, and circumstance that it is directed to the accomplishment of a single criminal episode. State v. Yashin, 199 Or App 511, 514, 112 P3d 331, rev den, 339 Or 407 (2005).
M had told C to go to his room when the argument between defendant and M began about 9:30 p.m.
In Brown, the defendant, an ex-convict, was arrested while carrying a concealed weapon. He was convicted of carrying a concealed weapon and subsequently prosecuted for being a convicted person in possession of a firearm. The court held that because both charges were based on the single act of carrying the firearm, constitutional principles of double jeopardy barred the second prosecution. 262 Or at 443-44,458.
ORS 131.515(2) provides that “[n]o person, shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known * * * at the time of * * * the first prosecution * * In this case, the state complied with the provisions of ORS 131.515(2), and defendant correctly does not raise the issue of double jeopardy. It is correct that the definition of “criminal episode” in ORS 131.505(4) applies to ORS 131.515(2) but, as to the issue before us, the statutory definition of “criminal episode” plays a role only because it has been grafted into the sentencing case law. Because no constitutional provision or statute directly addresses the issue before us in terms of former or double jeopardy, the majority’s belief that the trial court’s ruling violated double jeopardy principles by enhancing defendant’s sentence on Count 4 because of his convictions on Counts 1 and 2 is puzzling. Said another way, it is unclear why the majority believes that the legislature’s test under ORS 131.505(4) for determining when a single criminal episode occurs is constitutionally inadequate.
Assume that a person breaks into a dwelling in order to steal its contents. While inside, the person decides to set the house on fire in order to cover up his burglary. For purposes of ORS 131.505(4), the burglary and the arson would be held to have arisen out of the same criminal episode. Assume, however, that the person, while inside the dwelling, decides that because of his dislike of the owner, he will set the house on fire. Under that scenario, he has acquired an additional criminal objective (his spite directed at the owner), an objective that would result in more than one criminal episode occurring under ORS 131.505(4). The point of the hypothetical is this: whether the “accomplishment of a single criminal objective” rule in ORS 131.505(4) controls the analysis depends on the reasons underlying the criminal conduct and not on whether there is an overarching criminal objective as the majority posits.