concurring.
On appeal, defendant assigns error to a jury instruction given by the trial court. Defendant and Wade Pine (Pine) were indicted jointly for the crime of assault in the third degree pursuant to ORS 163.165(1). The indictment alleges, in relevant part, that “the said defendants * * * did unlawfully and intentionally, while being aided by another person actually present, cause physical injury to RICHARD BRIAN STEMSON.” At trial, the state offered evidence that Pine attacked Stemson and that Stemson was about to kick Pine when defendant ran up and kicked Stemson in the groin. Thereafter, Pine and defendant continued to kick and punch Stemson. Defendant denied kicking Stemson in the groin or punching or kicking him. He said that his only participation in the fray was to roll Stemson off of Pine. Stemson suffered a broken nose and required stitches above his eye as the result of the assault.
The trial court instructed the jury that
*114“Assault in the Third Degree requires proof that the defendant either caused physical injury while being aided by another, who was actually present, or aided by another who was actually present, -I’m sorry- aided another who was actually present in causing physical injury.”
The following colloquy took place after the trial court gave the instruction.
“[Defense Counsel]: Just that the defense excepts to that instruction because — I don’t know how much detail you want me to go into, but—
“[The Court]: Well, I think we can put it this way. You— correct me if I’m wrong, feel that that is an incorrect statement of law inasmuch as you feel in order to prove an Assault in the Third Degree against your client, the state must prove that your client caused the injury. Does that kind of sum it up?
“[Defense Counsel]: Yes, and although I think the Assault III instruction correctly states the law, the special instruction was confusing and potentially misstated the law in that it said that if he was assaulting and being aided, or if he was aiding someone who was assaulting, and it’s the second phrase that I was objecting to.”
Defendant claims that “[t]he trial court erred by failing to correctly instruct the jury concerning the elements of assault in the third degree.” He argues:
“When the trial court instructed the jury on the second theory of conviction, it told the jury it could convict defendant of assault in the third degree if it found that defendant aided another who was actually present in causing physical injury to the victim. That definition is insufficient as a matter of law. The plain language of ORS 163.165 requires two additional elements to obtain a conviction for assault in the third degree. Under the plain language of the statute, the jury was required to find that defendant himself caused physical injury to the victim, and that defendant was aided by another in doing so. The court’s instruction allowed the jury to convict without finding either of these elements.”
The gist of defendant’s exception and assignment of error is his contention that ORS 163.165(l)(e) requires proof that defendant personally caused physical injury to Stemson, aided by Pine. According to defendant, the trial court’s jury *115instruction erroneously told the jury that, if it found that Pine had physically injured Stemson (which defendant characterizes as fourth-degree assault), it could find defendant guilty of third-degree assault based on his aiding and abetting Pine without evidence that defendant personally caused Stemson’s injuries. Defendant’s argument misunderstands how ORS 163.165(l)(e) operates in connection with ORS 161.155(2)(b).
ORS 163.165 provides, in relevant part:
“(1) A person commits the crime of assault in the third degree if the person:
* * * *
“(e) While being aided by another person actually present, intentionally or knowingly causes physical injury to another [.]”
ORS 161.155 provides, in relevant part:
“A person is criminally liable for the conduct of another person constituting a crime if:
it* * * * *
“(2) With the intent to promote or facilitate the commission of the crime the person:
* * * *
“(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime [.]”
Under the indictment, the state was entitled to prove that defendant, aided or abetted by Pine, was guilty of assault in the third degree if he was the person who caused physical injury to Stemson. Alternatively, it could prove that defendant committed third-degree assault by aiding and abetting Pine if Pine committed third-degree assault. Under the second theory, the state had to prove that Pine’s conduct satisfied the elements of ORS 163.165(l)(e), constituting third-degree assault, and that additionally, defendant’s conduct satisfied the aiding and abetting requirements of ORS 161.155(2)(b). Defendant’s aiding and abetting under those circumstances would result in him being criminally hable for the same crime committed by Pine. Thus, the trial court’s *116instruction that told the jury that it could convict defendant, even if he did not cause Stemson’s physical injuries, so long as he was present and aided and abetted Pine (the person who caused Stemson’s physical injuries), was a correct statement of law.
According to defendant, ORS 161.155 cannot operate in the above fashion because a principal’s fourth-degree assault is elevated to third-degree assault under ORS 163.165(l)(e) only when the assailant is aided and abetted by another person. Defendant argues that the use of his conduct to enhance Pine’s fourth-degree assault to third-degree assault and also to make him criminally liable for Pine’s third-degree assault “constitutes circular reasoning and double counting” because the same conduct enhances Pine’s crime and additionally makes defendant liable for an enhanced crime. Defendant cites no legal precedent for the proposition that the same evidence cannot be used to satisfy two elements of the same crime as alleged in the charging instrument. In fact, some criminal statutes clearly contemplate that occurrence. For instance, ORS 163.175(l)(c) requires the state to prove that a defendant “recklessly cause[d] serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life.” The evidence of driving erratically while intoxicated can be used to satisfy both the element of acting “recklessly” and the element of “manifesting extreme indifference to the value of human life.” See, e.g., State v. Boone, 294 Or 630, 639, 661 P2d 917 (1983).
Here, the state had to prove as part of the elements of the charge in the indictment against defendant that Pine committed conduct amounting to assault in the third degree and that defendant aided and abetted him in that crime.1 The *117evidence of defendant’s involvement in the assault, in concert with the other evidence, satisfies both an element of ORS 163.165(l)(e) and the elements of ORS 161.155(2)(b), which were put into issue by the state’s alternative theory.
Consequently, although I agree with Judge Haselton that ORS 163.165(l)(e) is unambiguous, that fact plays no role in the analysis. The question is whether the trial court’s instruction was a misstatement of the law. Because the trial court correctly instructed the jury, based on the combined effect of ORS 163.165(l)(e) and ORS 161.155(2)(b), there was no error.
Judge Armstrong reasons that ORS 161.165(2) operates to prevent defendant from being criminally liable for third-degree assault because “[his conduct] is a necessary incident of third-degree assault that a person aid the person who injures the victim.” 181 Or App at 124 (Armstrong, J., dissenting). He misunderstands the import of the statute. ORS 161.165(2) provides that a person is not criminally liable for the conduct of another if “[t]he crime is so defined that the conduct of the person is necessarily incidental thereto.” The statute, in text and context, focuses on the elements of a crime as defined by the legislature. It exempts only victims of crimes and other similarly situated persons from criminal liability. See also Commentary to Criminal Law Revisión Commission Proposed Oregon Criminal Code, Final Draft and Report (July 1970), § 15. ORS 161.155 (2) is intended to exempt from criminal liability persons whom the legislature does not consider to be accomplices to criminal conduct. An “accomplice” is a person who is subject to criminal charge and punishment for the same crime that the principal offender commits because that person, with common intent with the principal offender, unites with the principal in the commission of the crime. State v. Barnett, 249 Or 226, 228, 437 P2d 821 (1968); State v. Nice, 240 Or 343, 345, 401 P2d 296 (1965). A person is not an accomplice to a crime merely because the person’s conduct was part of the operative facts that gave rise to the crime. For example, the unmarried party to a bigamous marriage is not an accomplice of the bigamist because, although the person’s conduct is an accompaniment or is necessarily incidental to the commission of the crime, that person’s conduct does not satisfy the elements of the *118crime under which the principal offender is charged. Rather, to become an accomplice, a defendant must commit, personally or in concert with others, the elements of the same crime committed by the principal offender. Here, defendant acted as an accomplice to the commission of third-degree assault. His conduct, together with the conduct of Pine and united by common intent, satisfies the elements of third-degree assault and therefore, does not exempt him from criminal liability for that crime under ORS 161.165(2).
For those reasons, I agree that defendant’s conviction should be affirmed.
ORS 161.160 provides, in part:
“In any prosecution for a crime in which criminal liability is based upon the conduct of another person pursuant to ORS 161.155, it is no defense that:
“(1) Such other person has not been prosecuted for or convicted of any crime based upon the conduct in question or has been convicted of a different crime or degree of crime[.]”
Also, under ORS 161.160(1), the fact that Pine’s crime is enhanced to third-degree assault by defendant’s participation is of no consequence to the charge against defendant.