dissenting.
Under ORS 163.165(l)(e), a person is guilty of assault III if the person (1) intentionally or knowingly causes physical injury to the victim, while (2) “being aided by another person actually present.” The concurring opinions conclude that the obverse is also true — that is, that a person is guilty of Assault III if the person, while actually present, aids another person who is causing physical injury to the victim. That result rewrites ORS 163.165(l)(e) and is insupportable under the principles of aiding and abetting liability. See ORS 161.155(2)(b). Consequently, I respectfully dissent.
ORS 163.165(1) provides, in part:
“A person commits the crime of assault in the third degree if the person:
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“(e) While being aided by another person actually present, intentionally or knowingly causes physical injury to another [.]”
Here, the parties presented diametrically different versions of defendant’s actions. The state presented evidence that both defendant and his brother assaulted the victim, Stemson, sequentially and then concurrently. Under defendant’s version of the facts, Stemson and his brother were fighting, and defendant’s involvement was limited to pulling Stemson off his brother. The court ultimately instructed the jury:
*119“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 another who was actually present in causing physical injury.”
Everyone agrees that the first, italicized phrase was legally correct — and, indeed, tracks the language of ORS 163.165(l)(e). And everyone agrees that, under that component of the instruction, if the jury adopted the state’s version of the incident, it could convict defendant of assault III — i.e., that defendant would have caused physical injury to Stemson while being aided by another person who was actually present (his brother).
The problem is with the boldfaced component of the instruction, which has no referent in the statute. Defendant contends that, given that language, the jury was authorized to convict defendant of assault III even if the jury adopted defendant’s version of the events — viz., that defendant did not cause physical injury to Stemson but, instead, merely aided his brother by pulling Stemson off his brother. Defendant contends that ORS 163.165(l)(e) does not impose culpability in such circumstances — and that, instead, defendant could be guilty only of aiding and abetting under assault IV. ORS 161.155(2)(b).
Before exploring the particulars of the parties’ arguments, and the concurring opinions’ analysis, at least one thing is clear: Under any construction of ORS 163.165(l)(e), the challenged instruction was a misstatement of the law. Again, under that instruction, a person commits assault III if the person “aided another who was actually present in causing physical injury.” Thus, under the instruction, if A gave B a plane ticket to fly from Portland to Bend to assault C, and B, in fact, assaulted C in Bend while A remained in Portland, A would be guilty of assault III. That result cannot be squared with the language of ORS 163.165(l)(e), which, at the least, requires that the aiding third person (“another person”) be “actually present” during the assault. Consequently, the court’s instruction was erroneous in the abstract.
But the instruction suffers from much more profound problems, which this case highlights. Consider another *120hypothetical: X beats up Y, causing physical injury, while Z keeps bystanders from intervening. Clearly, X is guilty of assault III — he caused physical injury while being aided by another person (Z) who was physically present. But what about Z? Under the disputed instruction, as ratified by the concurring opinions, Z is also guilty of assault III.
How so? Returning to the statutory text, Z cannot be directly liable (i.e., liable as a principal) under ORS 163.165(l)(e). To repeat, the statute provides that a person commits assault III if the person,
“[w]hile being aided by another actually present, intentionally or knowingly causes physical injury to another!.]”
That language is unambiguous. It is, both literally and reasonably, susceptible to only one reading: To impose principal liability under the statute, the defendant personally must have caused physical injury while being aided by another. There must be two actors — the actual assailant and the aider — and only the actual assailant has primary liability under the statute. Thus, if the jury adopted defendant’s version of the incident here, defendant could not be guilty of assault III as a principal because defendant never caused Stemson physical injury; rather, defendant merely aided his brother, who caused the injury. For the same reasons, Z in the hypothetical could have no principal liability because he did not assault Y but, instead, merely aided X’s assault.
So what of aiding and abetting liability? At that point, the inquiry presents a variation on the “chicken or the egg?” conundrum: What came first in this case — the assault IV or the assault III? Defendant posits that (1) his brother’s assault on Stemson was, by itself, an assault IV; and (2) when he pulled Stemson off his brother, he was, at worst, aiding and abetting an assault IV. Defendant acknowledges that his assistance would transform his brother’s assault IV into an assault III — but he contends that that transmutation of his brother’s liability cannot be used, in “double-dipping” fashion, to bootstrap an aid and abet of an assault IV into aiding an assault III.
The state responds that this was not a matter of “double-dipping” but, instead, of “simultaneity.” That is, once *121defendant assisted the primary assailant (his brother), the primary assailant’s conduct instantaneously became an assault III and, because defendant was aiding and abetting that crime, defendant must necessarily be guilty of an assault III on an aiding and abetting theory.
There is, in truth, an almost metaphysical — or, more precisely, existential — quality to the parties’ positions. However, defendant’s position is ultimately more persuasive, legally and logically.
Under ORS 161.155(2)(b), governing accomplice liability, a person “is criminally liable for the conduct of another constituting a crime” if, with the intent to facilitate the planning or commission of the crime, the person “[a]ids or abets * * * [the] other person in planning or committing the crime.” (Emphasis added.) Here, the “conduct of another” (his brother) for which defendant was derivatively culpable was the infliction of physical injury on another. See ORS 161.085(4) (defining “conduct” as “an act or omission and its accompanying mental state”); ORS 161.085(1) (defining an “act” as “a bodily movement”). Thus, the operative “conduct” constituted assault IV — and defendant could be liable only for aiding and abetting an assault IV.
Beyond those legal principles, defendant’s “double-dipping” argument rings true. If the state is correct, defendant’s conduct in aiding his brother’s assault can be used twice — first to convert his brother’s assault IV into an assault III and, then, to convert what would otherwise have been defendant’s aid and abet of an assault IV into an aid and abet of an assault III. The imposition of enhanced criminal liability should not be so contrived. The simple — and correct— answer is that defendant can be guilty only of assault IV.1
There is another simple answer: If the legislature had wanted to make “actually present” aiders of simple *122assaults liable for assault III, it easily could have done so, without convolution. But it did not. It remains free to do so.
The concurring opinions, of course, reach the opposite result. Three aspects of their reasoning are apparently intractable and deeply troubling.
First, the lead concurrence proceeds to legislative history — and, ultimately, bases its holding on that history— without identifying any plausible ambiguity in the text and context of ORS 163.165(l)(e). See 181 Or App at 108-12 (Wollheim, J., concurring). What is the ambiguity? The text of ORS 163.165(l)(e) could not be clearer: The person who inflicts physical injury while being aided by another is guilty of assault III. As noted, one might argue that the aider might be liable on an aiding and abetting theory, but that potential turns on the proper application of the aiding and abetting statutes — and does not create an ambiguity in ORS 163.165(l)(e). Thus, the majority’s resort to legislative history is improper under PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993).2
Second, it is unclear whether the lead concurrence concludes that an “actually present” aider is primarily liable under ORS 163.165(l)(e), derivatively liable under ORS 161.155(2)(b), or some mix-and-match hybrid of the two. If anything, the lead concurrence’s analysis seems to uncomfortably straddle disparate, even contradictory, theories.
Third, to the extent that the lead concurrence’s analysis is a confection of different theories, it does not explain how defendant can simultaneously occupy multiple statuses within the same crime. That is, the lead concurrence does not explain how defendant can, at the same time, be vicariously culpable for his brother’s assault while personally culpable — and, thus, somehow filling the role of “another person” actually present — for aiding that assault. Indeed, taken to their logical extension, both concurring opinions seem to *123say that defendant is liable for assault III because he vicariously stepped into his brother’s shoes as the actual assailant and then simultaneously aided “himself.”
In the end, whatever the shadings of their analysis, the concurring opinions have effectively rewritten ORS 163.165(l)(e). That we cannot do. See ORS 174.010 (when construing statutes, court is “not to insert what has been omitted, or to omit what has been inserted”). Because the disputed instruction materially misstated the law, defendant is entitled to a new trial.
Landau, Armstrong, Kistler and Brewer, JJ., join in this dissent.
ARMSTRONG, J.,dissenting.
I join in Judge Haselton’s dissent. I write separately, however, to respond to the analysis by which Judge Edmonds would affirm defendant’s conviction for third-degree assault. As Judge Edmonds appropriately notes, ORS 161.155(2)(b) makes a person
“criminally liable for the conduct of another person constituting a crime if:
% * ífc ífí
“(2) With the intent to promote or facilitate the commission of the crime the person:
<<* Hi * * *
“(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime [.]”
Given that provision, Judge Edmonds concludes that defendant could be liable for third-degree assault if he physically assaulted Stemson while aided by Pine or if he aided or abetted Pine in Pine’s physical assault of Stemson. Consequently, the trial court did not err in its instruction to the jury about the bases on which it could convict defendant for third-degree assault. 181 Or App at 115-16 (Edmonds, J., concurring).
The problem that I have with that analysis is that it fails to take into account the effect of ORS 161.165(2). That statute provides that,
*124“[e]xcept as otherwise provided by the statute defining the crime, a person is not criminally liable for conduct of another constituting a crime if:
* * * *
“(2) The crime is so defined that the conduct of the person is necessarily incidental thereto.”
(Emphasis added.) The crime of third-degree assault that is at issue in this case is defined to require that the person who injures the victim be “aided by another person actually present.” ORS 163.165(l)(e). Thus, it is a necessary incident of third-degree assault that a person aid the person who injures the victim. Because it is a necessary incident of the crime, the aid that the person provides does not result in criminal liability to that person for third-degree assault for the injuries caused to the victim. Consequently, the trial court erred in the instruction that it gave on the grounds on which defendant could be convicted for third-degree assault.”1
Thus, defendant could be convicted of assault IV, while his brother would be convicted of assault III. However, accomplice liability under ORS 161.155 need not be congruent with principal liability. For example, as ORS 161.160(1) provides, in any criminal prosecution based on accomplice liability as described in ORS 161.155, “it is no defense that * * * [s]uch other person [i.e., the principal] * * * has been convicted of a different crime or degree of crime.”
Ironically, the legislative history that the lead concurrence invokes seems to suggest that the aider can be primarily culpable. That result finds no support in the statute’s plain language.
Judge Edmonds argues in his concurrence that ORS 161.165(2)(b) should be interpreted narrowly to exclude from criminal liability only those people who do not act as accomplices of people who commit criminal acts. 181 Or App at 117-18 (Edmonds, J., concurring). I disagree. At a time when abortion could constitute a crime, see ORS 435.455 (1971), the commentary to the proposed Oregon criminal code identified a woman who obtains an abortion as someone who would be exempted from liability by ORS 161.165(2) for the criminal conduct of the person who performed the abortion. Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report (July 1970) § 15, 14. In that context, the woman who procured the abortion would appear to be an accomplice to the termination of her pregnancy with the person who terminated it, yet she would be exempted by ORS 161.165(2) from liability for the termination. Hence, I do not believe that ORS 161.165(2) is intended to exclude from liability only people who cannot be considered to be accomplices in the commission of the proscribed act.