dissenting.
Defendant was convicted of first degree rape and sentenced to 20 years with minimum imprisonment of 10 years.
I am unable to concur with that portion of the majority opinion that finds defendant guilty of rape in the first degree, for one simple reason.
*528It is axiomatic that proof of some penetration is a necessary element of statutory rape. State v. Hoffman, 236 Or 98, 385 P2d 741 (1963); State v. Poole, 161 Or 481, 90 P2d 472 (1939).
The record in this case is devoid of any evidence of penetration or evidence from which the same can be inferred. The victim testified: "* * * [H]e tried to insert his penis into my vagina, and he couldn’t continue because he said the camper shook too badly and it was, be noticeable from the outside.”
In my view this is plain error. This being the case, in fairness to the defendant we should take note of this deficiency in the proof and reduce the crime charged to attempted rape and remand for entry of such judgment and for resentencing.