dissenting.
The majority says:
“* * * The real issue in the present case is not whether defendant’s conduct could be found to constitute a ‘substantial step’ toward commission of the crime, but whether the circumstantial evidence was sufficient for the jury to infer that defendant intended to complete the crime, i.e., that he intended to have sexual intercourse by subjecting the victim to forcible compulsion. * * *” 63 Or App at 469.
If that is “the real issue,” then the law has changed. The crime of attempted rape is composed of a specific intent to commit forcible sexual intercourse and an overt act “which constitutes a substantial step toward commission of the crime.” I suppose that one could say that the defendant had the requisite intent, but I do not think that his conduct, so far as it went, could fairly be found to constitute a “substantial step” toward rape. Had his activity not been interrupted, no one can possibly know what he would have done, and a jury should not have been permitted to speculate. Compare State v. Evans, 43 Or App 95, 99, 602 P2d 317 (1979). In my opinion the evidence would support only a charge of sexual abuse in the second degree. ORS 163.415.
Therefore I dissent.
I also join in the dissent of Warden, J., as to the challenged instruction.
Warren, J., and Newman, J., join in this dissent.