concurring in part; dissenting in part.
I disagree with the majority’s treatment of the ruling on defendant’s demurrer to the indictment for murder by abuse. ORS 163.115(l)(c). In support of his demurrer, defendant argues that the statute is unconstitutionally vague on its face, because it “invites standardless and unequal application of the criminal laws.” The majority declines to consider that argument, because it considers defendant to have “improperly advanced his vagueness argument[.]” 128 Or App at 7.1 respectfully dissent.
Defendant argues that ORS 163.115(l)(c) is vague under Article I, sections 20 and 21, of the Oregon Constitution, and under the Fourteenth Amendment to the United States Constitution. A facial vagueness challenge should be *13upheld, although the challenged statute does not implicate First Amendment rights or constitutionally protected conduct, “if the enactment is impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 US 489, 494-95, 102 S Ct 1186, 71 L Ed 2d 362 (1982) (quoted with approval in State v. Robertson, 293 Or 402, 411 n 8, 649 P2d 569 (1982)). In Flipside, the Court elaborated:
“[T]o sustain such a challenge, the complainant must prove that the enactment is vague ‘ “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all.” * * ” 455 US at 495 n 7. (Citations omitted; emphasis supplied.)
The Ninth Circuit applied that formulation in Schwartzmiller v. Gardner, 752 F2d 1341, 1347 (9th Cir 1984):
“[A] party has standing to challenge a statute facially, despite the ordinary rule against facial statutory review, if ‘no standard of conduct is specified at all,’ Parker v. Levy, 417 US [733, 755, 94 S Ct 2547, 41 L Ed 2d 439 (1974)], quoting Coates [v. City of Cincinatti, 402 US 611, 614, 91 S Ct 1686, 29 L Ed 2d 214 (1971)]; that is, if the statute ‘is impermissibly vague in all of its applications.’ Flipside, 455 US at 497[.]”
Because I believe that defendant has made the argument that ORS 163.115(l)(c) fails to provide a standard of conduct, I would address it.1
*14The Supreme Court has recently reviewed the standards for evaluating a contention that a criminal statute is vague under the Oregon Constitution:
“ ‘The terms of a criminal statute must be sufficiently explicit to inform those who are subject to it of what conduct on their part will render them liable to its penalties.’ State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985). A ‘reasonable degree of certainty’ about what conduct falls within the statute’s prohibition is required; absolute certainty is not. State v. Cornell/Pinnell, 304 Or 27, 29-30, 741 P2d 501 (1987). In addition to giving fair notice of prohibited conduct, a criminal statute must not be so vague as to allow a judge or jury unbridled discretion to decide what conduct to punish. Id. at 29. A law that gives such unbridled discretion to judges and juries offends the principle against ex post facto laws embodied in Article I, section 21, of the Oregon Constitution, and the principle against standardless and unequal application of criminal laws embodied in Article I, section 20, of the Oregon Constitution. State v. Graves, supra, 299 Or at 195.” State v. Plowman, 314 Or 157, 160-61, 838 P2d 558 (1992), cert den_US_, 113 S Ct 2967, 125 L Ed 2d 666 (1993).
Those standards should not be applied mechanically: The degree of vagueness that is tolerated in a statute varies depending on the particular regulation at issue. For example, more vagueness is tolerated in an economic regulation than in a criminal statute. Also, the degree of vagueness that will be tolerated in a statute varies with the severity of the consequences for its violation. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, 455 US at 498-99. The consequences for violation of ORS 163.115(l)(c), a criminal murder statute, are unquestionably severe.
The 1989 legislature, which enacted the murder by abuse statute, did not define a “pattern or practice of assault or torture” for purposes of ORS 163.115(l)(c).2 Because of *15the absence of an applicable statutory definition, it is necessary to determine whether the phrase “a pattern or practice of assault or torture” has a clear and commonly understood meaning.
The state contends that “pattern” and “practice” are synonymous, and that they have a readily understood meaning:
“A pattern is the organized whole that can be seen when otherwise random elements come together in an orderly and interrelated fashion. A pattern of behavior emerges when a person engages in repeated acts that are the same or similar in nature and appear to have some overall connection. ‘In * * * a series of events, [a pattern is] an arrangement of parts, elements, or details that suggests a design or orderly distribution.’ Webster’s New International Dictionary (2d Ed 1941). In psychology, apatternis ‘[a] complex whole, characterized by a definite arrangement or interrelation of parts; as, a behavior pattern.’’ Id. (emphasis in original). A practice is ‘often, repeated, or customary action; hahit; custom; as, the practice of rising early or working hard[.]’ Id. (emphasis in original).”3
I agree with the state that those definitions capture the flavor of a “pattern or practice.” However, far from clarifying the meaning of the terms, they are illustrative of the quagmire that the legislature created by employing those terms without statutory definition. The definitions demonstrate that a “pattern or practice” is a complex matter consisting of a variety of interrelated parts. A pattern or practice consists of an elusive mixture of factors such as quantity, frequency and similarity of acts.
By making a “pattern or practice” of assault or torture an element of a crime, the 1989 legislature delegated *16to judges and juries responsibility to determine what mixture of factors such as quantity, frequency and similarity of acts constitutes a “pattern or practice” in the circumstances of the given case. The 1989 statute leaves it for the trier of fact to define the elements of the crime — i.e., the elements of a pattern or practice — on the facts presented. It gives each judge and each jury unbridled discretion to decide what conduct to punish. I would hold that ORS 163.115(l)(c) fails to provide a standard of conduct.
Because the statute is vague, it is necessary to determine whether it is possible to provide a “saving construction. ” See State v. Cornell/Pinnell, 304 Or 27, 30, 741 P2d 501 (1987); State v. Robertson, supra. In Robertson, the court said:
“When a statute is attacked as vague, for failing to define and communicate its coverage, the statute sometimes can be saved by a judicial interpretation that gives it the required definiteness. It is the court’s obligation to do so when this can be done without departing too far from what the legislature sought to accomplish or what the statute itself can convey to a reader. But when such a saving construction cannot be attributed to the legislature with reasonable fidelity to the legislature’s words and apparent intent, the statute is invalid as enacted, and it is immaterial whether the particular case in which it is challenged would be immune from a validly drawn law.” 293 Or at 411. (Emphasis supplied.)
As the state’s argument about the meaning of the phrase shows, the commonly understood meaning of a “pattern or practice” encompasses some mixture of a number of episodes of a similar character occurring in some order. In response to its own concerns that the murder by abuse statute was vague, the 1993 legislature provided a statutory definition of a pattern or practice. The amended statute defines the phrase in terms of quantity only: “more than one previous episode.”
It is, of course, the prerogative of the legislature to define statutory terms as it pleases. However, we are not at liberty to adopt the new statutory definition as a saving construction in this case. A saving construction faithful to the commonly understood meaning of the term “pattern or practice” would have to be sensitive to the factors discussed *17above. It would have to specify a quantity and frequency of acts prohibited by the law, and would have to indicate the respect, if any, in which those acts must be similar. Cf. ORS 166.715(4) (defining a “pattern of racketeering activity” as at least two incidents within five years, involving similar intents, results, accomplices, victims, or methods of commission or having other distinguishing characteristics). It is not our province, under the heading of providing a “saving construction,” to arbitrarily select the required number and frequency of acts, or their required character, whjn the legislature has declined to do so. I would conclude that the phrase “pattern or practice” is not amenable to a saving construction.
Because the murder by abuse statute is vague and is not amenable to a saving construction that is faithful to the legislature’s words and apparent intent, it cannot support defendant’s conviction. I would remand with instructions to enter a judgment of conviction for the lesser included offense of manslaughter in the first degree, if so requested by the state. See State v. Graves, supra, 299 Or at 195. I agree with the majority that defendant’s conviction for criminal nonsupport should be affirmed.
There is no conflict between Flipside and Schwartzmiller (and the cases cited therein), and the cases upon which the majority relies, including State v. Reichsfeld, 118 Or App 592, 595, 848 P2d 639 (1993), and State v. Albee, 118 Or App 212, 847 P2d 858, rev den 316 Or 528 (1993). In Reichsfeld and Albee, the defendants do not appear to have argued that the challenged statutes provided no standard of conduct. Cases in which this court and the Supreme Court have addressed facial vagueness challenges to statutes that did not implicate First Amendment rights, include State v. Farrar, 309 Or 132, 181-84, 786 P2d 161 (1990) (upholding provisions of an aggravated murder statute after considering the defendant’s facial vagueness challenge), State v. Graves, 299 Or 189, 700 P2d 244 (1985) (striking down a provision of an aggravated burglary statute, apparently on its face), and State v. Moeller, 105 Or App 434, 806 P2d 130, rev den 312 Or 76, 815 P2d 701 (1991) (sustaining a facial vagueness challenge to a provision that increased the seriousness of cultivation, manufacture or delivery of a controlled substance, if the act was a part of a1 ‘scheme or network”).
A somewhat similar phrase is used in the Oregon racketeering statute, which makes it a crime to acquire or maintain an interest in real property through a “pattern of racketeering activity.” ORS 166.720(2); see also ORS 166.720(3). We upheld that statute against a vagueness challenge, because ORS 166.715(4) provides a specific and detailed definition of what conduct constitutes a “pattern of racketeering activity.” State v. Romig, 73 Or App 780, 788, 700 P2d 293, rev den 299 Or 663 (1985). The state concedes that, “given the particular statutory definition and its ‘specialized application to criminal organizations,’ RICO cases shed little light on whether the phrase ‘pattern or practice’ is vague.” I agree.
The legislative history of ORS 163.115(l)(c) shows that at that time the Attorney General’s office urged the legislature to provide a statutory definition for a “pattern or practice”:
“Section 2 of the bill requires prosecutors to prove a pattern or practice of assault or torture * * * in order to obtain a conviction. If the committee keeps that provision, we recommend the committee establish the standards necessary for prosecutors to make such a showing. * * * How many [incidents] must a prosecutor prove to demonstrate a ‘pattern or practice?’ ” Minutes, House Judiciary Committee, Subcommittee on Family Justice, February 7, 1989, Exhibit F (testimony of Deborah A. K. Wilson, Assistant Attorney General, on HB 2033).