dissenting.
The majority concludes that the trial court properly imposed separate sentences against defendant for convictions for two counts of fourth-degree assault based on a single assault of defendant’s wife. Each conviction involved a count that alleged that a different child of defendant and his wife witnessed the assault, which elevated each count from a misdemeanor to a felony. See ORS 163.160(3). According to the majority, each child was also a victim of the assault. Because *181defendant’s wife and children were victims of the assault, defendant could be punished separately on each assault count under ORS 161.067(2), which provides that,
“[wjhen the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.”
The majority is wrong. As I will explain, the reference to “victim” in ORS 161.067(2) is to the person who is directly harmed by the conduct that a statute makes criminal. Thus, the victim of a murder is the person killed, the victim of a robbery is the person robbed, the victim of a rape is the person raped, and the victim of an assault is the person assaulted. See, e.g., State v. McNeil, 170 Or App 407, 12 P3d 992 (2000) (victim of burglary committed by entry with intent to commit assault was the owner of the dwelling, while victim of assault was the person assaulted; if they were different each crime had a different victim). That terminology is so prevalent in our reported cases that I have been unable to find an example of a different meaning for “victim” when it is used in the substantive context of what constitutes a crime. The Supreme Court adopted that meaning in State v. Stalheim, 275 Or 683, 688, 552 P2d 829 (1976), in which it determined that the “victim” of a crime is the “direct victim” unless there is a clear legislative determination otherwise.
The majority expands the normal meaning of “victim” in a way that subjects defendant to punishment beyond what the legislature intended. In essence, the majority holds that the presence of a child who witnesses a fourth-degree assault does not merely aggravate that crime from a misdemeanor to a felony. Rather, each child witness is a victim of the assault distinct from the person assaulted, with the result that the court may impose a separate punishment for each child witness. Five child witnesses, thus, can result in five separate felony punishments for a single assault that, in the absence of a child witness, would be only a single misdemeanor.1
*182The majority reaches its result by extending the definition of “victim” to include anyone whose involvement with a crime may aggravate the seriousness of the offense. As authority for that action, it relies on a definition of “victim” that the people2 adopted for a different purpose and then applies that definition to a statute to which the people expressly intended that it not apply. When the people expanded the normal meaning of “victim,” they did so in order to give individuals and entities other than the direct victim of a crime certain rights in the criminal justice process and to permit the court to order a convicted defendant to pay compensation to those individuals and entities. The people carefully avoided applying that expanded definition to specific substantive issues, such as what constitutes a separately punishable crime. The current opinion, thus, applies the definition of “victim” to a situation to which the people did not intend it to apply.
In explaining why the majority’s expansion of the normal meaning of “victim” is incorrect, I will discuss four points: (1) ORS 163.160, the statute that defines the crime of which defendant was convicted, expressly describes the “victim” of the assault as the person injured; it does not use that term to describe those whose presence constitutes an aggravating factor; (2) under ORS 161.067(2), which describes what are separately punishable offenses, “victim” has its normal meaning of “direct victim”; (3) the dictionary definition of “victim” has no relevance to the meaning of the term in defining a crime; and (4) when the people adopted ORS 131.007, which defines “victim” for the purpose of the victims’ rights statutes, they intentionally refused to apply that definition to ORS 161.067.
ORS 163.160(3)
Determining who is the victim of a crime necessarily begins with the statute that creates the crime. Defendant was convicted of two counts of fourth-degree felony assault arising out of a single incident in which one person, his wife, suffered personal injury. Two of defendant’s and the victim’s *183minor children witnessed the assault. Fourth-degree assault consists of causing physical injury to another person intentionally, knowingly, or recklessly, or doing so with criminal negligence by means of a deadly weapon. ORS 163.160(1). It is normally a Class A misdemeanor. ORS 163.160(2). However, under ORS 163.160(3) it becomes a Class C felony when:
“(a) The person has previously been convicted of assaulting the same victim;
“(b) The person has previously been convicted at least three times under this section or under equivalent laws of another jurisdiction and all of the assaults involved domestic violence, as defined in ORS 135.230; or
“(c) The assault is committed in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child residing within the household of the person or the victim.”
(Emphasis added.)
Defendant was indicted for, and convicted of, two counts of fourth-degree felony assault; each count alleged that a different child witnessed the same assault. The majority holds that those convictions are for separately punishable offenses under ORS 161.067(2). The basis for that holding is its conclusion that each child was a victim of the crime.
The majority does not begin its analysis by attempting to determine how the legislature and the people used the word in the statutes in question. Rather, it looks to a dictionary definition that has no apparent relevance to that use. It also gives significant weight to the definition of “victim” in ORS 131.007, a definition that expressly does not apply to those statutes. The majority makes no significant effort to determine the meaning of the word in the context of the statute itself. Unlike the majority, I will begin with the substantive statutes.
There is clearly only one victim of a misdemeanor assault: the person who suffers physical injury. The same is true for felony assault under the aggravating factors described in ORS 163.160(3)(a) and (b). Indeed, ORS 163.160(3)(a) states as the aggravating factor that the person *184“has previously been convicted of assaulting the same victim[.]” In this case the aggravating factor is ORS 163.160(3)(c), that the assault is witnessed by “the person’s or the victim’s minor child or stepchild,” or by a minor child residing in the household “of the person or victim.” (Emphasis added.) The statute thus clearly distinguishes between the person who is the victim of the assault and the child whose presence at, or witnessing of, the assault makes it a felony. Nothing in the statute suggests that the child is a victim for the purpose of defining the offense, and the clear implication is to the contrary.3 Indeed, nothing in the statute requires that the child be a victim in any sense of the word; the aggravating factor does not depend on whether the assault harmed the child in any respect.4 The child may have slept through the assault, or the assaulter may be a protector whom the child believes to be rescuing the child from an abusive parent.5 Indeed, the child may be an infant who has no idea what is happening or a teenager who does not care.
ORS 161.067
Under the plain language of ORS 163.160(3), thus, the only victim of fourth-degree felony assault is the person who suffers physical injury. Two indictments were nevertheless proper in this case, each alleging that a different child witnessed the assault, because the jury might have found that one child was a witness and the other was not. The state *185needed to prove that at least one child was a witness in order to prove that the assault was a felony. The question of whether each indictment charged a separately punishable offense depends, however, on the application of ORS 161.067(2) to 163.160(3). ORS 161.067(2) provides that, “[w]hen the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.” ORS 161.067(2) does not expressly define who is a “victim” for this purpose, but it is necessarily connected to the substantive law. Thus, it refers the court to the statute that defines the offense in question in order to determine who is a victim. It does not contain any basis for determining the number of victims but is limited to the consequences that follow when there is more than one. Determining the number of victims is necessarily a matter for the statutes that create the crimes.
The context for the adoption of ORS 161.067 supports that conclusion. Before its adoption6 the issue of “merger of convictions” and “merger of sentencing” was one of the most convoluted and controversial aspects of Oregon criminal law. See, e.g., State v. Kessler, 297 Or 460, 686 P2d 345 (1984); State v. Linthwaite, 295 Or 162, 665 P2d 863 (1983); State v. Cloutier, 286 Or 579, 596 P2d 1278 (1979). We followed the Supreme Court’s somewhat opaque decisions with strong expressions of discontent and without always correctly divining its intent. See, e.g., State v. Kessler, 65 Or App 380, 382 n 1, 671 P2d 749 (1983), rev’d, 297 Or 460, 686 P2d 345 (1984) (“The law we follow ought not to be the law.”). One aspect of the law that was clear before the adoption of ORS 161.067 was that there could be only one sentence for a robbery that constituted a single criminal episode, even if it had two or more victims. See, e.g., State v. Perkins, 45 Or App 91, 607 P2d 1202 (1980) (defendant robbed restaurant while threatening both cook and waitress).
*186ORS 161.067 brought simplicity to that situation. Among other things, ORS 161.067(2) provides that there are always as many separately punishable offenses as there are victims, thereby overruling the contrary holdings of Cloutier and Perkins. There is no indication in the statute or in its context, including the cases that it overruled, that “victim” means anything other than the direct victim, the person whose direct injury makes the act a crime. There is also no indication that ORS 161.067 would require a different determination of who is the victim of a crime from what the substantive statutes provide.
DICTIONARY DEFINITIONS
The majority does not carefully analyze either the assault statute or the purpose and context of ORS 161.067. Rather, it relies primarily on the definitions of “victim” in a dictionary and in ORS 131.007. The dictionary definitions are of little assistance because they do not consider the use of the word as referring to a victim of a crime. The four definitions refer to (1) “a living being sacrificed to some deity or in the performance of a religious rite”; (2) “someone put to death, tortured, or mulcted by another: a person subjected to oppression, deprivation, or suffering”; (3) “someone who suffers death, loss, or injury in an undertaking of his own”; and (4) “someone tricked, duped, or subjected to hardship: someone badly used or taken advantage of.” Webster’s Third New Int’l Dictionary 2550 (unabridged ed 1993). Definitions (2) and (4) could include a victim of a crime, in the sense in which lawyers and courts have traditionally used the word, but nothing about those definitions is unique to the crimina] law or relates to how to determine the “victim” of a criminal offense. The dictionary does not help us to decide whether the people intended to use the word differently from its usual legal meaning when it adopted this statute.
ORS 131.007
The majority appears to place great weight on the definition of “victim” in ORS 131.007, which provides:
“As used in ORS 40.385, 135.230, 135.406, 135.970, 147.417, 147.419 and 147.421 and in ORS chapters 136, 137 and 144, except as otherwise specifically provided or unless *187the context requires otherwise, ‘victim’ means the person or persons who have suffered financial, social, psychological or physical harm as a result of a crime and includes, in the case of a homicide or abuse of corpse in any degree, a member of the immediate family of the decedent and, in the case of a minor victim, the legal guardian of the minor. In no event shall the criminal defendant be considered a victim.”
There are two obvious aspects to that statute. First, its apparent purpose is to expand the criminal law definition of “victim” well beyond the “direct victim” of the crime. Second, and most significantly, it limits the use of that expanded definition to specifically defined statutes, all of which have the same general purpose. The reasons both for the expansion of the traditional definition and its limited application come from the context in which it was adopted. The purpose of the definition was to expand the rights of those indirectly affected by a crime to participate in the criminal justice process. It was part of the same initiative that enacted ORS 161.067, but ORS 161.067 is not one of the statutes to which the expanded definition of “victim” applies. For that reason, the majority’s reliance on ORS 131.007 in construing ORS 161.067(2) is incorrect.
The context for ORS 131.007 begins with Stalheim, in which the question was whether the court could order a person convicted of criminally negligent homicide to make reparation payments to the victim’s family under former ORS 137.540(10) (1975), repealed by Or Laws 1981, ch 671, § 1, which provided for “reparation or restitution to the aggrieved party for damage or loss by [the] offense.” 275 Or at 685. The Supreme Court held that the statute limited reparation or restitution payments to “the direct victim of a crime, and not to other persons who suffer loss because of the victim’s death or injury.” Id. at 688 (emphasis added). The court refused to extend liability beyond the direct victim without an express legislative instruction to do so. The court based its decision on its understanding that the common meaning of “victim” in the criminal context is the person who is directly harmed by the criminal conduct; it used the phrase “direct victim” to make that point clear. In a sense, Stalheim creates a default position in Oregon law: “victim” means “direct victim” unless the legislature has clearly indicated otherwise.
*188After Stalheim, the legislature amended the restitution statutes by creating a broader definition of victim that applied to those statutes. Or Laws 1977, ch 371, § 1(4), codified as ORS 137.103(4); see State v. Hval, 174 Or App 164, 174-76, 25 P3d 958, rev den, 332 Or 559 (2001). It did not apply that broader definition to laws that create a crime. In 1986, the people adopted Measure 10, which modified several evidentiary and criminal procedural statutes and created a number of procedural rights for victims of criminal offenses. As part of creating those procedural rights, section 17 of Measure 10 enacted what is now ORS 131.007 in order to define the “victims” who were entitled to those rights. As originally adopted, ORS 131.007 applied to OEC 615 and to ORS chapters 136, 137, and 144. Or Laws 1987, ch 2, § 17. Subsequent amendments have applied it to additional victims’ rights provisions. Or Laws 1993, ch 294, § 3; Or Laws 1997, ch 313, § 30.
By its express terms, ORS 131.007 does not apply to three substantive provisions of Measure 10. Section 8, codified as ORS 41.415, provides that, in a prosecution for criminal homicide, “a photograph of the victim while alive” is admissible when offered by the state. (Emphasis added.) Section 9 amended OEC 609 to expand the use of previous convictions for impeachment; it contains no reference to a victim. Finally, section 13 enacted ORS 161.067, which among other things, provides that there are as many separately punishable offenses as there are victims.
ORS 131.007, thus, was connected to those portions of Measure 10 that provided procedural benefits to victims, such as exemption from exclusion at trial, section 5, consideration in setting trial dates, section 4, and notice of pending parole decisions, sections 14 and 15. On the other hand, ORS 131.007 does not apply to the more limited portions of Measure 10 that do not expand victims’ rights in that fashion. The structure of Measure 10 shows a conscious decision not to apply ORS 131.007 to the sections to which it does not expressly apply. ORS 41.415 specifically refers to “the victim” of a homicide in a way that is inconsistent with the word meaning anything other than the person killed — that is, the direct victim of the homicide. ORS 161.067 does not involve a *189victim’s procedural rights but, rather, establishes substantive rules for determining the number of offenses and when offenses are separately punishable. ORS 131.007 plays no role in determining its meaning. Rather, in the context of previous cases on the subject, ORS 161.067(2) necessarily refers to direct victims, not to the broader class of victims defined in ORS 131.007 for an unrelated purpose, when it defines the number of separately punishable offenses.7 So far as ORS 161.067 is concerned, the Supreme Court’s limitation of “victim” to “direct victim” continues to apply; the people have not only failed to modify that limitation but have consciously decided to follow it.
“Victim” for substantive criminal law retains its traditional meaning of “direct victim.” There is nothing ambiguous about that conclusion. Although it was proper for the state to bring indictments for two counts of fourth-degree assault in order to allow the jury to convict even if it believed that one of the children was not a witness, under ORS 161.067(2) those two counts constitute only one separately punishable offense. Cf. State v. Barnett, 331 Or 27, 37, 10 P3d 901 (2000) (court could enter one judgment for aggravated murder, specifically enumerating each aggravating factor). The majority errs in concluding otherwise.
The person actually assaulted is undoubtedly a victim of the assault. Thus, the majority’s reasoning would actually appear to permit separate punishments equal to the number of child witnesses plus one, provided that the state charged the offenses properly.
I refer to the people rather than the legislature because the crucial statutes were part of an initiative that the people adopted in 1986.
The majority suggests that the need to describe three separate categories of people led the legislature to use “the victim” simply for convenience. 184 Or App at 177. However, if the legislature had intended the child witnesses to be victims, it would not have used “the victim” to refer to the person injured. Rather, its wording clearly distinguishes between the child witness whose presence makes the crime a felony and the actual victim of the crime.
The majority refers to comments in the legislative history that refer to the harm that a child who witnesses an assault may suffer. 184 Or App at 177 n 4. Those comments explain the legislature’s reason for making fourth-degree assault a felony when there is a child witness; they do not support the majority’s conclusion that the legislature also intended to create a separately punishable crime in those circumstances.
A father may have deserted his family and failed to pay child support for many years. If the father suddenly returns and gets into an altercation with his two children’s stepfather that results in a black eye to the father, it may well be that the children will not feel harmed in the slightest. The black eye may, however, constitute a physical injury, and, if the stepfather is the aggressor, then he may be guilty of two counts of fourth-degree felony assault, subject under the current opinion to two separate punishments.
As I discuss below, ORS 161.067 was part of Ballot Measure 10, which the people adopted at the 1986 general election. The 1985 Legislative Assembly had previously adopted former ORS 161.062, repealed by Or Laws 1999, ch 136, § 1, which was identical in most respects. Until the repeal of former ORS 161.062 in 1999, the two statutes operated in uncomfortable tandem. Therefore, in discussing the law before the adoption of ORS 161.067,1 am in fact discussing the law before the adoption of ORS 161.062. That does not affect my point.
For this reason, ORS 137.123(5)(b), which provides for consecutive sentences, is irrelevant to this case. There cannot be consecutive sentences unless there are separately punishable offenses, and ORS 161.067 provides the basis for determining that.