concurring in part, and dissenting in part.
I agree with the majority’s analysis and conclusion that the “now or never” nature of defendant’s challenge to his sentences makes this appeal justiciable. However, for the reasons discussed below, I disagree with the majority’s *431analysis and conclusion that defendant’s convictions under Counts 1 and 2 constitute part of a single criminal episode. I would hold that the trial court did not err in imposing sentences that used the conviction on Count 1 as criminal history for purposes of sentencing on Count 2 because the criminal mistreatment of S constituted a separate criminal episode from the criminal episode in which K was criminally mistreated.
Count 1 alleges that defendant committed the crime of criminal mistreatment by knowingly causing physical injury to K. Count 2 alleges that defendant committed the crime of criminal mistreatment by knowingly causing physical injury to S. The evidence at trial demonstrated that S, K, and a sibling were in the same room together. After spanking the sibling, defendant spanked and inflicted physical injury on S by spanking him more than five times. He then turned his attention to K and inflicted physical injury on him by spanking him 15 to 25 times. K and S suffered substantial bruising as a result of defendant’s separate actions directed at them individually.
OAR 213-004-0006(2) provides that an offender’s criminal history is based on the number of adult felony convictions, Class A misdemeanor convictions, and juvenile adjudications in the offender’s criminal history at the time that the offender is sentenced for the current crime. The rule focuses on the criminal history that exists at the time of sentencing on the conviction and not on the time that the crime was committed. Accordingly, the fact that S was mistreated before K was mistreated plays no role in the calculation of defendant’s criminal history for the sentencing of the crime committed against S because defendant was sentenced for the mistreatment of K before the trial court undertook to sentence defendant for the crime committed against S.
“Thus, if a defendant is convicted of two crimes in one proceeding, and a court pronounces sentence on the first conviction seconds before calculating the sentence on the second, then the first conviction may be used to calculate the defendant’s criminal history on the second conviction. There is one caveat: Only convictions that arose out of *432separate criminal episodes count as part of the defendant’s criminal history for sentencing purposes.”
State v. Yashin, 199 Or App 511, 514, 112 P3d 331, rev den, 339 Or 407 (2005) (internal quotation marks omitted).
For purposes of computing a defendant’s criminal history,
“[t]he legal determination that convictions arose out of separate criminal episodes is based on a factual finding [;] specifically, the finding that the acts giving rise to the convictions were not part of continuous and uninterrupted conduct that * * * is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a criminal objective.”
Id. (internal quotation marks omitted). Thus, the proper focus is not on whether there was a single act that violated a criminal law, but on whether there is a “singleness” of a criminal objective that is accomplished by the commission of the underlying criminal acts. State v. Cloutier, 286 Or 579, 596-99, 596 P2d 1278 (1979). My disagreement with the majority begins with its misidentification of defendant’s “criminal” objective.
Defendant summarizes his argument as follows:
“In this case, defendant spanked two of his children in quick succession, in the same room and on the same piece of furniture, for their shared misconduct. The two acts of spanking are part of the same criminal episode because they accomplished the same criminal objective and occurred during defendant’s continuous and uninterrupted course of punishing his children.”
Subsequently, defendant explains in his brief that “defendant developed the objective to punish all his children before committing either assault, when he discovered them in the bathroom with a water mess.”
At the core of my disagreement with the majority is its acceptance of defendant’s argument that defendant’s “criminal” objective was to punish his children for the mess they made in the bathroom. The majority notes:
*433“Defendant asserts that there was one single criminal objective — to strike his children for the mess that he believed they jointly made.”
259 Or App at 423.
An objective to discipline one’s children by spanking them does not constitute a “criminal” objective within the meaning of sentencing law. An objective becomes “criminal” in nature only when a person purposes to violate a criminal law or to engage in conduct that the law makes criminal. Defendant’s objective to spank all of his children to discipline them for the mess they made in the bathroom does not constitute a “criminal objective” because that objective is not “criminal” in nature. Moreover, under the majority’s premise, every parent who undertakes to discipline a child by spanking the child forms a criminal objective. But there is simply no law on the books in the State of Oregon that makes a person guilty of criminal conduct for the punishment of a child absent the infliction of physical injury or some other circumstance outlawed by statute. In this case, had defendant spanked his children without causing any of them physical injury, he could not have been said to have formed a criminal objective under the law. Thus, defendant’s “criminal” objective or objectives in this case was to mistreat his children by spanking them to the extent that his actions caused physical injury to them as the indictment alleges.
Properly identifying defendant’s “criminal” objectives constitutes the cornerstone for determining whether, under Oregon sentencing law, defendant had more than one criminal objective, i.e., whether the legislature would have intended that the sentence imposed for the mistreatment of S could be enhanced because of the prior mistreatment of K. The critical facts of this case for determining whether defendant had multiple criminal objectives are that the two victims were injured separately as a result of defendant spanking each of them individually and one after the other. In the abstract, the existence of two victims separately injured by separate actions suggests that defendant must have had more than one criminal objective in order to injure two persons by separate actions.
*434In its quest for guidance for legislative intent regarding this issue, the majority relies on State v. Kautz, 179 Or App 458, 39 P3d 937, rev den, 334 Or 327 (2002) and State v. Witherspoon, 250 Or App 316, 280 P3d 1004 (2012). That reliance is misplaced because neither case involved multiple victims. The victim in Kautz was a homeowner who was victimized when the defendant entered a workshop and stole personal property from the owner of the workshop. When confronted by the victim, the defendant used a gun to steal the victim’s car. In Witherspoon, the victim was the defendant’s wife. As a result of a domestic dispute with her, the defendant was convicted of misdemeanor assault, menacing, and felony assault. We held that he had an overarching objective to harass and injure the victim throughout the continuing physical and emotional abuse he inflicted on her. In contrast to Kautz and Witherspoon, this is a case where there are two victims each injured by discrete acts that were directed particularly at each victim.
The parties cite three cases in their briefs that deal with the circumstance of multiple victims. Defendant relies on State v. Norman, 216 Or App 475, 174 P3d 598 (2007), vac’d, 345 Or 319 (2008), and State v. Bryant, 245 Or App 519, 263 P3d 368 (2011), arguing that they “directly control this case.” In Norman, the defendant drove his vehicle toward two officers causing them to move to avoid being hit. He then drove at a third officer and a fourth officer. We concluded that it would have been functionally impossible for the defendant to have presented his defense as to one of the assaults — that his actions were the result of a panicked response to avoid the other officers’ gunshots— without relating the details of those encounters with the other officers. We concluded therefore that the trial court erred in ruling that that episode arose from the same criminal episode as other crimes because a complete account of one offense could not be related without referring to the details of the others. 216 Or App at 489-90.
In Bryant, the defendant assaulted a corrections officer. When another corrections officer attempted to intervene, the defendant also assaulted him. We held, “ [i] t is apparent from our recitation of the facts in this case that defendant’s *435assault of Frye was so interrelated with his assault of Lake that a complete account of defendant’s conduct against Frye cannot be related without also relating details of defendant’s conduct directed at Lake.” 245 Or App at 523. Neither Bryant nor Norman is helpful to the resolution of this case because the criminal mistreatment charge pertaining to S could be prosecuted and defended without reference to the criminal mistreatment of K, and vice versa.
The multiple-victim case on which the state relies is State v. Kessler, 297 Or 460, 686 P2d 345 (1984), a case in which the court explained its holding in State v. Linthwaite, 295 Or 162, 665 P2d 863 (1983). In Linthwaite, the defendant had brandished a knife threateningly at three family members and a bystander. As a consequence, he was convicted of four counts of attempting to use a dangerous weapon, all arising out of the single act of brandishing the knife at the victims. The Supreme Court held that “ORS 131.505(3), which, for former jeopardy purposes, creates a separate offense for each victim of a criminal episode, does not indicate legislative intent that punishment be by way of multiple sentencing.” 295 Or at 179. Linthwaite is an example of multiple victims injured by the same criminal conduct and how the legislature would have viewed that conduct for purposes of sentencing. This case differs from the facts in Linthwaite because defendant separately mistreated each victim, one after the other.
The circumstances in Kessler involved separate victims who were subjected to separate restraints of their liberty by the defendant and his co-actors during their escape from jail. In the course of the escape, multiple victims were forced at gunpoint to give up their clothing and were then locked in a cell, one by one. The issue on review by the Supreme Court was whether multiple sentences were precluded and whether the court was required to merge the second-degree kidnapping convictions into one sentence and merge the two first-degree kidnapping convictions into one sentence.
In Kessler, the Supreme Court held that “[n]othing in Linthwaite stated that there cannot be multiple sentences *436for offenses against several victims in the absence of‘express legislative intent’ to that effect.” 297 Or at 465. Rather,
“[t]he major element in assessing whether multiple statutory violations were meant to carry cumulative punishment is whether they were committed in the course of a single criminal episode joined in time, place and circumstances and directed toward a single criminal objective. See State v. Cloutier, [286 Or 579, 595, 596 P2d 1278 (1978)] (drawing on ORS 131.515 (2)). There, the court noted that the test of a single criminal objective is no panacea. People have goals for the long, medium, or short term, and the objective of the immediate act often is pursued as a step toward a more distant goal. One may have fully achieved the immediate goal of the particular offense committed toward a victim although one has not gained one’s wider objective. 286 Or at 583. Cloutier also drew attention to the problem of multiple victims, pointing out reasons why an overly simple formula would not reflect the dissimilarities between situations that intentionally or unexpectedly involve more than one victim. The presence and sometimes the identity of the victim may be integral to the criminal objective, or it may be an incidental and undesired circumstance. 286 Or at 598-599.”
Kessler, 297 Or at 465-66 (footnotes omitted).
Even though the defendant’s overarching criminal objective during his course of conduct directed at the victims was solely to facilitate his escape, the Kessler court utilized a test that inquired whether each of the kidnappings of multiple victims constituted a purposeful and deliberate act pursuant to the defendant’s criminal objective to escape, i.e., whether the presence of multiple victims was integral to his criminal objective or whether the presence of multiple victims was merely incidental as an unexpected or happenstance to his objective to escape. Id. at 466. The court noted that each kidnapping achieved a discrete intermediate objective and therefore constituted a separate criminal objective for sentencing purposes. The court explained:
“In this sequence of events, the fact that the criminal conduct involved multiple victims was no casual coincidence. Each of the civilian victims was summoned for a purpose, to obtain his clothing for one of the prisoners. Each was *437locked up in order to prevent interference with the escape. This kidnapping episode achieved its intermediate object in the larger scheme toward the ultimate objective of escape. Thereafter, first one and then the other corrections officer was taken hostage.”
297 Or at 467.
This court in Kessler had held that separate sentences could not be imposed unless it could be shown that the legislature intended separate sentences and, accordingly, that the four second-degree kidnapping convictions should have been merged into one sentence and the two first-degree kidnapping convictions should have been merged into one sentence. However, the Supreme Court reversed this court, leaving our decision without precedential value, and remanded the case to the circuit court for reinstatement of the circuit court judgment imposing four 10-year maximum sentences for the second-degree kidnapping of the civilian victims and two sentences for the first-degree kidnapping of the corrections officers, all to be served consecutively. 297 Or at 469. In arriving at its conclusion, the court observed:
“The disposition of offenders is as much a matter of legislative policy, within constitutional limits, as the definition of offenses. State v. Cloutier, supra 286 Or at 583-587. In the absence of explicit legislation or legislative history on this subject, the court therefore has sought to discern the apparent or most probable legislative policy toward cumulative or consecutive sentences.”
297 Or at 464 (footnote omitted).
That statement defines our task in this case. As noted above, this case presents at its core a question of legislative policy. There is no statute or legislative history that directly controls the issue.1 Kautz and Witherspoon are not *438controlling, because they do not involve multiple victims. Kessler also does not control this issue, because it did not involve a determination about whether there was a single criminal episode for purposes of sentence enhancement under the sentencing guidelines. Rather, Kessler decided whether sentences for injuries to multiple victims should merge or run consecutively. Thus, the holding in Kessler is of no import to us. That acknowledged, I believe that the reasoning in Kessler constitutes a reflection of how courts and the legislature have viewed enhanced sentencing issues where there are multiple victims injured by the separate actions of a defendant. The test created by the Kessler court is a valid methodology for assessing when it is and is not proper to hold an actor accountable for injuries to multiple victims. Indeed, the principles in Kessler regarding multiple victims injured by separate acts have found their way into statutes that express the legislature’s policy.2
In light of the fact that there is no controlling statute, legislative history, or case law directly on point, I propose the following rule based on my reading of Kessler and Linthwaite and their implicit understanding of legislative policy: Where multiple victims are injured by the same actor, the actor’s criminal objective or objectives will depend on the circumstances of the injuries. If the actor injures multiple victims by a unitary action, e.g., brandishing a knife at them or shooting a gun at a crowd, the fact that the actor injures more than one person does not operate to multiply the actor’s unitary criminal objective. The injuries to multiple victims are happenstance or incidental to the criminal objective, and in such a circumstance, there is no intermediate objective. If, instead, the actor directs separate actions at separate victims thereby injuring each of them, the actor *439is said to have more than one criminal objective because the presence or identity of each victim is integral to the actor’s criminal objectives rather than incidental. It matters not to the analysis that the actor may have had an overarching criminal objective. The intermediate objectives to injure each victim operate to facilitate the actor’s overarching objective and, therefore, for sentencing enhancement purposes, the actor should be held accountable for the multiple criminal objectives.
Assuming that defendant’s criminal objective in this case was to cause both S and K physical injury in order to punish them for the mess in the bathroom, defendant could not have accomplished his criminal objective to physically injure K unless K had been present. Under the proposed test, K’s identity and presence was integral to his criminal mistreatment and could not be properly characterized as incidental or happenstance. It follows that defendant’s criminal objective to physically injure K was separate from his criminal objective to physically injure S and that defendant had as many criminal objectives as he had victims.
The majority’s second criticism of my application of the Kessler construct to the facts of this case is that it “depends in large part on speculation.” 259 Or App 427. Respectfully, any time a court undertakes to discern legislative intent in the absence of direct legislative direction or legislative history, the undertaking is inherently speculative; but that is the task that the constitution has assigned to us. Contrary to the majority’s assertion, the reality is that there exists no statute, rule, legislative history, or case law precedent that is, either factually or legally, directly on point to the factual circumstances in this case. We are therefore left to figure out what result the legislature and its delegate, the State Sentencing Guidelines Board, would have intended had it considered the precise issue before us.
The majority’s conclusion that there was only one criminal objective because defendant had an overarching motive to punish all of his children for the mess in the bathroom is flawed for the reasons described above. Assuming defendant had an overarching objective to punish his *440children by physically injuring them, he undertook to accomplish his objective by a series of separate intermediate actions directed at separate victims. In my view, the legislature would have viewed those actions as prompted by more than one criminal objective for purposes of sentencing enhancement in light of the purposes of sentences. In terms of just desserts for criminal conduct, the legislature has always embraced a policy of accountability that takes into account additional criminal behavior of the defendant. That policy goal is not satisfied by the majority’s analysis in this case; under its analysis, it matters not for sentencing enhancement purposes how many children defendant separately injured.
For these reasons, I dissent.
According to the majority, “[t]o agree with the state and the dissent would contravene the legislative history of ORS 131.505(4).” 259 Or App at 425. Respectfully, that assertion proves too much for two reasons. First, ORS 131.505(4) provides a definition for the former jeopardy provisions of ORS 131.505 to 131.525. The legislative history relied on by the majority underlying ORS 131.505(4) is contained within the 1972 commentary to the proposed revisions of the Oregon Criminal Procedure Code. The sentencing guidelines were adopted by the legislature in 1989. If, in fact, the 1973 legislature intended that the examples in the proposed 1972 criminal code would govern the provisions of the sentencing guidelines in 1989, it was remarkably prescient. Second, there is *438nothing in the commentary that is inconsistent with my position. Crimes committed against multiple victims may be the result of single or multiple criminal objectives as my construct acknowledges. It all depends on the circumstances once the “criminal” objective or objectives are properly identified.
For example, ORS 161.067 governs the determination of when there are separately punishable offenses for the same conduct or criminal episode involving multiple victims. Even though the same conduct violates only one statutory provision, there are as many separately punishable offenses as there are victims under the provisions of that statute. Also, ORS 137.123(5) provides that consecutive sentences may be imposed when injury is caused to more than one victim.