dissenting.
I dissent from the majority’s conclusion that the sentencing court erred in its application of departure Factor J1 in sentencing defendant. In order to frame the discussion properly, I begin at a different point of analysis, namely, by clarifying what is not at issue in this appeal.
Defendant does not contend that the evidence in the record was inadequate to support the sentencing court’s findings of fact. Defendant was convicted of assisting a fugitive who was accused of committing aggravated murder with a shotgun and assault in the course of a home robbery. The fugitive admitted to defendant that he shot the victim. Defendant nevertheless assisted the fugitive in evading the authorities and traveling to a major population center. The sentencing court found that defendant’s conduct exposed the public to a significantly greater risk than is typical for the crime of hindering prosecution. That crime can be committed by assisting a person who has committed any felony, whether violent or not. ORS 162.325. In this case, the underlying offenses were extremely violent, and the risks to the public posed by the fugitive remaining at large were inherently greater than for most other felonies. The court’s factual determinations were supported by the record. State v. Wilson, 111 Or App 147,149, 826 P2d 1010 (1992).
As the majority recognizes, the disposition of this appeal turns on defendant’s legal argument. The question before us is whether conduct committed in hindering prosecution that exposes the public to significantly greater risk than is typical for that offense constitutes a basis to depart within the meaning of Factor J. Defendant contends that the *235trial court erred because it found that defendant’s conduct merely risked harm, whereas Factor J requires actual harm in order to justify departure. The majority appears to reject defendant’s contention but concludes that the trial court erred for other reasons. I will explain my disagreement with the majority’s reasoning below. However, in order squarely to resolve defendant’s challenge, we must first determine the meaning of the word “harm” as used in Factor J.
In determining the meaning of an administrative regulation, we look first to its text and context. If the meaning remains unclear, then we look to its “legislative history” and, if all else fails, then we resort to general maxims of statutory construction. PGE v. Bureau of Labor and Industries, 317 Or 606, 612 n 4, 859 P2d 1143 (1993) (PGE template for statutory construction “applies * * * to the interpretation of regulations”). The word “harm” is not defined in the sentencing guidelines or in any related statute. Because it is a word of common usage, it must be interpreted in accordance with its ordinary meaning. Id. at 611. In its plain and natural sense, “harm” means “physical or mental damage: INJURY * * * an act or instance of injury * * *: a material and tangible detriment or loss to a person * * Webster’s Third New Int’l Dictionary, 1034 (unabridged ed 1993). The dictionary definition of “harm” comfortably accommodates the notion of personal or individual injuries. In fact, we have consistently held that departure factors involving injury or harm must relate to the designated victim in the context of offenses against persons. See State v. Reid, 140 Or App 293, 298-99, 915 P2d 453 (1996) (Factor J not applicable where sentencing court relied on generalized effects of sexual abuse, rather than harm to individual victim); see also Wilson, 111 Or App at 152 (application of Factor I requires injury to the victim of sentenced offense).
However, the crime of hindering prosecution does not contemplate an individual victim. As are other crimes compiled in ORS chapter 162, it is an offense against “public justice.” Offenses against the public do not necessarily require the element of actual harm or injury to a particular person for conviction. See, e.g., ORS 162.065 (perjury); ORS 162.145 to ORS 162.165 (escape); ORS 162.375 (initiating a *236false report). Therefore, the dictionary definition of “harm” is not especially helpful in determining its meaning in sentencing for an offense such as hindering prosecution.
A first level PGE inquiry does not stop, of course, with a bare recitation of the dictionary definition of harm. State v. Atkeson, 152 Or App 360, 364, 954 P2d 181 (1998). We must also examine any well-defined legal meaning it may have. Stull v. Hoke, 326 Or 72, 78, 948 P2d 722 (1997); Gaston v. Parsons, 318 Or 247, 253, 864 P2d 1319 (1994). “Harm” in the legal sense, depending on the context of its use, is not coextensive with the common meaning of the word. See Stevens v. Bispham, 316 Or 221, 228, 851 P2d 556 (1993).
The concept of harm has a broader meaning in its application to criminal offenses against the public. In State v. Chakerian, 325 Or 370, 938 P2d 756 (1997), the defendants challenged the constitutional validity of ORS 166.015,2 the “riot” statute, contending that the statute improperly restrains expression under Article I, section 8, of the Oregon Constitution. In a portion of its analysis upholding the statute, the court was required to determine whether the riot statute was directed to the subject of a communication, or whether it was directed at a harm that the legislature was entitled to proscribe. Id. at 375. The court concluded that the statute is directed at the prevention of harm, which the legislature defined in terms of the creation of risk to the public:
“ORS 166.015, by its terms, is not directed at speech at all, let alone at restraining the free expression of opinion or the right to speak freely on any subject. Rather, the statute is directed at a harm — the creation of a grave risk of public alarm.” Id. at 375 (first emphasis in original; second emphasis added).
In proscribing assistance to fugitives from justice, the hindering prosecution statute is, like the riot statute, designed to safeguard against risk to the public. State v. Clifford, 8 Or App 494, 499, 491 P2d 1195 (1971), rev’d on *237other grounds 263 Or 436, 502 P2d 1371 (1972) (offense of hindering prosecution is aimed at conduct with a tendency to frustrate the due course of justice). Neither offense requires harm to an individual victim. Thus, the formulation of both offenses is consistent with a legal meaning of “harm” that coincides with the creation of risk. I find nothing else in the text or context of Factor J that meaningfully informs our inquiry. Therefore, I would conclude that the meaning of harm, as used in Factor J, includes the creation of risk to the public where the current conviction is for hindering prosecution.
Although the majority does not appear to disagree with the foregoing meaning of harm, it nonetheless finds two fatal problems with the trial court’s application of Factor J, both of which turn on the construction of its language. First, the majority concludes that the harm for which the sentencing court departed was not a different degree of harm from what would typically result from the offense of hindering prosecution. In so concluding, the majority slices the word “degree” too finely to suit my view of our task.
Although I agree with the majority that a degree is primarily a quantitative measurement, it is not exclusively so. For example, crimes are frequently defined by degrees. They may vary in severity and penalty, which are quantitative measures. However, they also differ qualitatively, in that each degree of a crime constitutes a separate offense. Alternative common meanings of “degree” capture the mixed nature of the term. For example, one definition of “degree” is “one of the forms or sets of forms used in the comparison of an adjective or adverb to denote a particular intensity or level of the quality, quantity or relation expressed by the adjective or adverb.” Webster’s third New Int’l Dictionary at 594 (emphasis added). Another meaning of “degree” is “a positive and unquestionable though undefined quantitative measure and qualitative elevation.” Id. (emphasis added). Accordingly, I submit that the majority defines the term too narrowly to encompass the full range of its ordinary meaning.
Furthermore, the differences between the harm for which the sentencing court departed and the harm typically *238resulting from the offense of hindering prosecution are qualitative only in a limited sense. The crime of hindering prosecution requires the creation of risk to the due course of justice. Clifford, 8 Or App at 499. The sentencing court departed under Factor J based on the creation of risk to public safety. In a broad sense, those harms are not qualitatively different, because each constitutes the same general harm: risk to the public as opposed, for example, to harm to an individual victim. Each constitutes harm to the public but falls at a different point along the spectrum of risk. Viewed in that light, the risk that an offender will not be brought to justice and the risk to public safety that he may pose while at large do present differences in degree of harm. The majority’s exacting lens for distinguishing between quantitative and qualitative differences in harm is not supported by a reasonable construction of Factor J and, thus, unduly constrains the exercise of the sentencing court’s discretion.
The majority finds a second flaw in the trial court’s application of Factor J. The majority observes that the rule uses the past tense in referring to harm “attributed” to the current crime of conviction that “was” significantly greater than typical. As a result, the majority concludes that Factor J applies only to completed or realized harms. From that conclusion, the majority decides that the trial court erred because the harm it described was theoretical. I disagree.
Conduct that creates risk is not harmless merely because, in hindsight, the risk did not materialize. Harm arising from risk to the public occurs when the conduct creating that risk is committed. See Chakerian, 325 Or at 378. If, as the majority appears to agree, harm to the public includes the creation of risk, then it makes little sense to conclude that such harm evaporates simply because that which was risked is not realized. The legislature’s choice of the past tense in describing that harm does not mandate the majority’s conclusion.
With respect, the majority’s construction of Factor J undercuts the full range of its scope. The sentencing court correctly determined that the harm resulting from defendant’s conduct constituted a significantly greater degree of harm than is typical for the offense of hindering prosecution. *239Accordingly, the court did not abuse its discretion in imposing a 36-month departure sentence for defendant’s conviction.
I respectfully dissent.
OAR 213-008-0002(l)(b)(J) authorizes an upward sentencing departure if ‘Ttlhe degree of harm or loss attributed to the current crime of conviction was significantly greater than typical for such an offense.”
ORS 166.015 provides:
“(1) A person commits the crime of riot if while participating with five or more other persons the person engages in tumultuous and violent conduct and thereby intentionally or recklessly creates a grave risk of causing public alarm.
“(2) Riot is a Class C felony.”