I agree with the majority’s disposition of the first assignment of error. However, I do not agree with the majority that we are compelled to conclude that a first degree burglary is not a “person felony” for purposes of the sentencing guidelines if the victim of the burglary was home at the time of the burglary, but not actually inside the house. The lesson to be learned from the majority opinion is that, when I take my garbage out, I need to keep one foot in the door.
The majority notes that “dwelling” is defined.in the burglary statutes to include a building that is regularly or intermittently occupied by a person lodging there at night. It emphasizes that the term includes only the building and that there is no mention of premises or the curtilage of the dwelling in the definition. ORS 164.205(2). The majority points out that “premises” is separately defined in the burglary statutes to include any building and real property. ORS 164.205(6). As the majority concludes: “ ‘Dwelling’ is a term of art in the law of burglary, and it does not mean the same thing as ‘premises.’ ” 116 Or App at 255. Therefore, the majority reasons, in deciding what “occupied dwelling” means in the sentencing guidelines we are forced to conclude that it does not include the situation in this case, where the victim of the crime is home and on the premises but not actually inside the house.
I agree with the majority that the use of the modifier “occupied” was intended to create a different meaning than “dwelling” alone. The majority is also right that, if “occupied dwelling” means that someone regularly or intermittently sleeps in the building, it duplicates the meaning of “dwelling.” Where I disagree with the majority is in its conclusion *257that our only choice is to hold that the victim of the burglary must be inside the house in order for a dwelling to be an “occupied dwelling.”
The term “occupy” is defined as:
“To take or enter upon possession of; to hold possession of; to hold or keep for use; to possess; * * * Actual use, possession, and cultivation.” Black’s Law Dictionary, 1279 (6th ed 1990).
The way that the majority reads “occupied,” the only way that one can be using or possessing a dwelling is to be inside. However, I do not think such a strict reading is necessary or reasonable. The better reading is to say that a dwelling is occupied if someone is actually using it or possessing it, which occurs if someone is at home, whether inside or out. Under that definition, a person may be occupying a dwelling, even if she temporarily steps outside to pot plants on the patio, sit on the porch or take out the garbage.
My reading of “occupied dwelling” is consistent with the purpose of the guidelines in classifying burglaries committed while a dwelling is occupied at a higher crime seriousness rating because the risk of harm to the victim is greater. As the trial court recognized, the risk to a person whose home is burglarized is just as great if she is on the deck potting plants or asleep inside the house. I would conclude that, because the victim was at home, the dwelling was occupied and, accordingly, the trial court properly classified the crime as a person felony. Accordingly, I dissent.