dissenting.
I disagree with the majority’s conclusion that the second sexual contact in this case, the touching of the victim’s buttocks by defendant, was compelled by physical force so as to satisfy the “forcible compulsion” element of the crime of first-degree sexual abuse under ORS 167.427(1). There was no physical force used on the victim that allowed that sexual contact to occur. Defendant could have just as easily touched the victim’s buttocks at the time the crime was committed whether or not he earlier had moved her hand or rubbed her back. Defendant’s positioning of his body next to the victim was not the use of physical force against the victim. It is that positioning, and not any physical interaction with the victim, that facilitated the sexual contact. In my view, a case of sexual abuse in the first degree is made out, not by any predicate and untoward touching of the victim as the majority implies, but by a distinct application of physical force on the victim that allows the sexual contact to occur. That is what the plain *170wording of ORS 163.427(1) requires. Because defendant did not use physical force on the victim with that result, I would reverse the conviction of sexual abuse in the first degree on the second count and remand that part of the judgment for entry of judgment of conviction of sexual abuse in the third degree and for resentencing.
Beyond the majority’s misapplication of the plain meaning of ORS 163.427(1), the vague test for “forcible compulsion” employed by the majority, the “totality of the circumstances” test, (1) unnecessarily blurs the distinction between the misdemeanor crime of third-degree sexual abuse and the felony crime of first-degree sexual abuse, a distinction of immense importance given the difference in punishment for the two crimes; (2) equates any intimidating conduct with “forcible compulsion,” even though the legislature specifically defines different types of “threats” to be acts of “forcible compulsion”; and (3) allows the prosecution of two crimes based on the same forcible compulsion in ways inconsistent with ORS 161.067, a statute that requires distinct conduct for each crime.
Defendant was arrested and charged with two counts of first-degree sexual abuse. The indictment alleged that the crimes were committed by “forcible compulsion.” ORS 163.427(1) provides, in part:
“A person commits the crime of sexual abuse in the first degree when that person:
“(a) Subjects another person to sexual contact and:
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“(B) The victim is subjected to forcible compulsion by the actor[.]”
ORS 163.305 provides the relevant definitions for the crime of first-degree sexual abuse. ORS 163.305(6) defines “sexual contact” as
“any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.”
*171ORS 163.305(2) defines “forcible compulsion”:
“ ‘Forcible compulsion’ means to compel by:
“(a) Physical force; or
“(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will be immediately or in the future be kidnapped.”
Thus, the charged crime required defendant to compel sexual contact with the victim by physical force or threat.
The majority properly concludes that, “[b]ecause ORS 163.427(1) requires both ‘sexual contact’ and ‘forcible compulsion,’ the element of ‘forcible compulsion’ is distinct from the element of ‘sexual contact’ — that is, ‘forcible compulsion’ means something more than a physical touch to which the victim does not consent.” 234 Or App at 163. Thus, a defendant’s action in making or causing the sexual contact is distinct from the application of physical force that constitutes “forcible compulsion.”
Subjecting a victim to “forcible compulsion” is the distinguishing element between the sexual contact that is part of the crime of sexual abuse in the third degree, ORS 163.415, and the sexual contact that is part of the crime of sexual abuse in the first degree, ORS 163.427. ORS 163.415(1) provides:
“A person commits the crime of sexual abuse in the third degree if the person subjects another person to sexual contact and:
“(a) The victim does not consent to the sexual contact; or
“(b) The victim is incapable of consent by reason of being under 18 years of age.”
As noted, the crime of sexual abuse in the first degree requires subjecting another person to both “sexual contact” and “forcible compulsion.” ORS 163.427(l)(a)(B). The difference between both crimes is that sexual contact constitutes third-degree sexual abuse if it is unwanted or without consent, whereas the sexual contact constitutes first-degree sexual abuse if it is caused by forcible compulsion. Therefore, *172“forcible compulsion” means something in addition to being without consent.
I agree with the majority, then, that “under the plain meaning of ORS 163.427 and ORS 163.305, physical force constitutes forcible compulsion if it is sufficient to compel the victim to engage in or submit to sexual contact[,]” 234 Or App at 163-64, and that “to compel a person by ‘physical force’ means to exercise physical strength or power that causes the person to act or to submit to being acted upon against the person’s will,” 234 Or App at 165. Combining those thoughts, a sexual contact is compelled by physical force when the sexual contact is made possible by the separate use of physical strength or power on the victim. That physical facilitation test is a matter of mechanics — did the use of physical force compel the sexual contact, or did it make it likely that the sexual contact could occur? Examples of physical facilitation in this sense could include holding the victim down in order to allow sexual contact or otherwise physically constraining the victim to the same effect, where the victim could not avoid the sexual contact because of the application of force.
That type of physical force was not used against the victim here to make defendant’s touching of her buttocks possible. At the time of that conduct, the victim was lying on her stomach with her face turned away from defendant. Defendant was rubbing the victim’s back under her shirt and then slid his hand down the back of her pants “for a few seconds and then [she] said no and he pulled his hand out.” Contrary to the prosecutor’s assertions, there was no evidence, including the victim’s testimony, that defendant was “clutching” the victim or exerting any kind of physical strength directed to the victim in order to make the sexual contact more likely and to overcome potential resistance. The victim did not testify that she was restrained by defendant’s actions in rubbing her back or that defendant moved her body or exerted any physical force against her that compelled or caused her to act or to be positioned in any way. In fact, the victim took steps to avoid further sexual contacts after the applications of force against her. The victim turned to lie on her stomach after the first sexual contact and moved away from defendant immediately after the second sexual contact.
*173The majority recognizes that ORS 163.427(1) requires the use of physical force or threat against the victim that “causes the person to act or to submit to being acted upon against the person’s will.” 234 Or App at 165. And it identifies three uses of physical force against the victim that preceded the sexual contact in question: the initial physical contacts between defendant and the victim (being “on top of her”); the movement of the victim’s hand to touch defendant’s penis; and defendant’s rubbing of the victim’s back. Yet none of those physical interactions made defendant’s touching of the victim’s buttocks possible or necessarily allowed that sexual contact to occur. After the first two physical contacts, the victim turned over on her stomach. After that, defendant could just as easily have touched the victim’s buttocks with or without a backrub.
Instead of a facilitation test for whether physical force compelled the sexual contact, the majority seemingly adopts a post hoc ergo propter hoc test — an assumption that any predicate physical interaction between defendant and the victim made the sexual contact likely to occur. It then employs a “totality of the circumstances” test to further qualify those predicate physical acts as “forcible compulsion.” Under the majority’s logic, if a defendant and a victim shook hands before the defendant groped the victim, the shaking of hands might be forcible compulsion depending on the time of day, the location of the offense, and whether there had been a predicate crime.
Although I agree that the degree of physical force necessary to facilitate a sexual contact might depend on the factual context of the crime, I do not concur that predicate acts are categorized differently and become causative or compelling because of the relationship between the parties or the time of day or because those acts are crimes. Instead, the inquiry is one of physical facilitation alone — did the application of force physically allow the sexual contact to be possible. By that test, the previous hugging and rubbing of the victim, even the previous sexual abuse, did not have any physical relationship to the touching of her buttocks. That touching was neither made easier nor was the victim made more likely to be touched by the previous physical interactions between *174defendant and the victim. The victim had the same vulnerability to that touching as she had when defendant first entered her bed, prior to the use of any force by defendant. Therefore, the touching of the victim’s buttocks was not compelled by the use of physical force.
The broader “totality of the circumstances” test for “forcible compulsion” advanced by the majority — whether the physical interactions between the victim and defendant and other circumstances made the victim feel oppressed — is inconsistent with the definition of “forcible compulsion” set out in ORS 163.305(2). Put simply, the definition requires physical force sufficient “to compel” the victim to experience the sexual contact, not physical force that, together with a number of other circumstances, makes the victim feel intimidated. In fact, ORS 163.305(2) very explicitly details the particular threatening or intimidating behavior of a defendant that constitutes “forcible compulsion” — an “express or implied” threat “that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will be immediately or in the future be kidnapped.” The “totality of the circumstances” test for intimidating conduct employed by the majority to define “forcible compulsion” expands the scope of ORS 163.305(2) beyond its stated meaning.
The “totality of the circumstances” test will be difficult to apply and the consequences of that categorization are significant. As just noted, the existence of “forcible compulsion” is the distinction between the misdemeanor crime of third-degree sexual abuse and the felony crime of first-degree sexual abuse. The maximum punishment for third-degree sexual abuse is a sentence of one year in prison. ORS 161.615(1). If the sexual abuse occurs by means of “forcible compulsion” so that a defendant could be punished for first-degree sexual abuse, the defendant would serve a minimum of 75 months in prison. ORS 137.707(4). A person with extensive criminal history could serve up to 90 months in prison for conviction of first-degree sexual abuse, meaning that the difference between the punishments for the two crimes is at least five years of confinement but could be as much as six and one-half years in prison.
*175Suppose the need to apply the “totality of the circumstances” test to the following factual scenario — with five to six years in prison at stake in the application of that test: a man and a woman voluntarily kiss at the end of their first social date. Suddenly, the man gropes the woman’s breast and she pushes him away. Under my understanding of “forcible compulsion,” the prior use of physical force — the kissing of the woman by the man — did not make the groping possible and the man’s conduct would be third-degree sexual abuse, the making of an unwanted sexual contact.
Under the majority’s “totality of the circumstances” test, the inquiry is much more subtle and would depend on whether the kissing could be oppressive in any way. That, in turn, would depend on the age difference between the parties, the time of day, whether the man had acted boorishly previously, and perhaps a number of other factors that are not apparent. I do not believe that the legislature intended the consequence of potentially 20 years in prison — the difference in punishment between the crimes of third-degree and first-degree sexual assault — to rest on the elusive and subjective classification suggested by the majority.
Finally, there are problems with the application of the “totality of the circumstances” test when — as here — the key circumstance is the prior commission of the same crime. The majority suggests that defendant is accountable for committing the crime of first-degree sexual abuse by the buttocks touching largely because of the forcible compulsion involved in the first sexual abuse charge, defendant’s movement of the victim’s hand to touch his penis. The common fact for both crimes — that act of forcible compulsion — raises issues of merger under ORS 161.067(3). Under that statute, when there are repeated violations of the same statutory provision in a criminal episode that involves one victim, each violation, in order to be separately punishable, “must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” That provision has been interpreted by the Supreme Court to mean that “one crime must end before another begins.” State v. Barnum, 333 Or 297, 303, 39 P3d 178 (2002), overruled on other grounds by *176State v. White, 341 Or 624, 147 P3d 313 (2006). Whether a single forcible compulsion for both sexual contacts allows the second violation to begin after the first violation has ended is not clear. The issue, however, suggests that defendant’s conduct is better classified as constituting different crimes— first-degree sexual abuse and third-degree sexual abuse — in the absence of separate acts of forcible compulsion.
In sum, I dissent because the majority errs, in my view, in broadening the meaning of “forcible compulsion” beyond physical interactions with the victim that allow the sexual contact to occur. The broader meaning advanced by the majority — whether physical actions together with other circumstances make the victim feel intimidated — is inconsistent with the text of ORS 163.305(2) and is difficult to apply fairly. I believe the case should be remanded for resentencing on the second count, rather than affirmed. The jury’s verdict necessarily found the elements of third-degree sexual abuse, ORS 163.415(1)(a) on the second count, a lesser-included offense of first-degree sexual abuse by forcible compulsion. Accordingly, the proper disposition should be to enter a judgment of conviction for the lesser-included offense of third-degree sexual abuse. Or Const, Art VII (Amended), § 3; ORS 136.465; see, e.g., State v. Conklin, 214 Or App 80, 162 P3d 364 (2007) (remanding for entry of judgment on lesser-included offense of delivery of a controlled substance where trial court erred in denying judgment of acquittal on charges of delivery of a controlled substance within 1,000 feet of a school).
Armstrong, J., joins in this dissent.