concurring in part and dissenting in part.
I respectfully dissent from that part of the court’s decision that affirms the conviction of the petitioner for criminal deviate conduct and for which he received a fifty year period of imprisonment. In my view, the evidence presented with respect to this deviate conduct charge was so insufficient that no rational jury could have found the petitioner guilty of that charge beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979).
The majority identifies the two elements of the crime of criminal deviate conduct that the petitioner claims were insufficiently proved: (1) whether the victim was alive at the time of the sexual assault and (2) whether the petitioner penetrated the victim’s sexual organ. Although I believe that the sufficiency of the evidence with respect to the former element is a more difficult question than the majority suggests, I confine my dissent to the penetration issue because I believe that the evidence presented with respect to that element is entirely speculative and lacks any probative value whatsoever.
The Indiana Supreme Court, construing earlier Indiana deviate conduct and rape cases, has determined that the slightest “degree of penetration” of the victim’s sex organ is adequate proof of criminal deviate conduct. Rowan v. State, 431 N.E.2d 805, 813 (Ind.1982). Accordingly, the central question in the instant case is whether there is sufficient evidence in the record of this essential element. Jackson, 443 U.S. at 324, 99 S.Ct. at 2791.
*1192Judge Posner acknowledges that the “cut on the outside of the female sexual organ is not" a penetration, ante at 1189, and that such evidence standing alone is insufficient to support even an inference a penetration. Speaking for the majority, he states that the other circumstantial evidence — the small amount of blood found in the vagina, the marginally positive acid phosphatase test, and the victim’s state of undress — provide the necessary additional evidence to support a finding by any rational juror of guilt beyond a reasonable doubt. Respectfully, I must disagree.
First, the evidence regarding the victim’s state of undress is irrelevant to the issue of penetration — it only shows that the petitioner intended to sexually assault Ms. Ayers. Second, the acid phosphatase test lacks any credible probative value. The State pathologist, who performed the test, made several statements at trial with respect to possible inferences regarding the presence of seminal fluid in the vagina that could be drawn from a marginally positive acid phosphatase test. But those inferences would only be permissible in this case if the validity of the test had not been seriously undermined by other factors. Indeed, the pathologist admitted more than once that the test “was insufficient for ... [him] to say that the woman had had a seminal discharge into her vagina.” Thus, any possible inferences in this case regarding the presence of seminal fluid in the victim’s vagina are pure speculations.
Similarly lacking in probative value is the evidence of the blood. The State did not produce evidence as to blood type or any other evidence from which it could be ascertained whose blood it was. I suppose it can be assumed, in the absence of any evidence suggesting that it was petitioner's blood, that it was the victim’s blood. The State’s only evidence suggesting the blood’s origin was the pathologist’s testimony that older women such as the victim may have frequent, but sporatie episodes of uterine bleeding. The pathologist admitted that there were no lacerations, cuts, or bruises either in the victim’s vagina or at the opening of the vagina. Thus, no evidence whatsoever was introduced by the State to show that the blood in the victim’s vagina was caused by the petitioner’s penetration of that organ. It could be that the jury in this case inferred that the blood from the wholly external tear was placed in the vagina by the petitioner’s penetration. But this inference was never argued or even suggested by the State. Moreover, in my view, such an inference would be entirely unreasonable in light of the pathologist’s testimony regarding the fragility of genital tissues in women of this age.
Thus, I believe that the evidence produced by the State on the question of penetration is so lacking in probative value that it cannot support any reasonable inference of penetration. Even if I were to agree with the majority that this evidence is somewhat relevant — i.e., has a tendency to make the existence of the element of the crime more probable than it would be without the evidence, cf. Fed.R.Evid. 401 — it is clear after Jackson that relevancy is not enough. 443 U.S. at 320, 99 S.Ct. at 2789.1
In my view, the majority is applying, de facto, the “no evidence” test of Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), that was repudiated by the Supreme Court in Jackson. The majority seizes upon a few weak pieces of evidence and, in effect, sustains the conviction on the basis that the record is not “wholly devoid of any relevant evidence of a crucial element of the offense charged ____” *1193Jackson, 443 U.S. at 314, 99 S.Ct. at 2786. As the Supreme Court has held, a conviction based on such evidence is constitutionally infirm. Id.
The majority is surely correct that an attempted rape occurred. And if petitioner had been convicted of that crime I would not hesitate to agree that the conviction should be sustained under Jackson. But the issue before us is the conviction for rape, and, in my view, no person should face the possibility of spending fifty years in prison on such flimsy evidence as was produced against the petitioner in this case.
. I believe that the acts of the jury in this case have little probative value in determining if any rational jury could find proof of penetration beyond a reasonable doubt. The pathologist was permitted to testify over defendant’s objection that the tear constituted an "encroachment” on the female sex organ. There was also considerable discussion over what constitutes the female sex organ — the jury ultimately being instructed that the labia majora was part of that organ. No instruction on the meaning of "penetration" was given. In my view, it is very probable that the jury convicted petitioner for “penetrating” the victim's labia majora.
I am further persuaded that this is indeed what petitioner was convicted of by reading over the pathologist’s testimony. Notwithstanding his "encroachment” testimony and his opinions regarding what constitutes the female sex *1193organ, he stated that he did not form an opinion as to whether there was penetration of that organ. Moreover, he suggested elsewhere that what occurred here was "carnal knowledge ... an attempt is made to penetrate the vagina and unsuccessfully ...” and not rape. Although the jury is entitled to credit some parts of a witness’ testimony and discredit other parts, this testimony shows the confused state of the evidence and the instructions before the jury on this issue, and clearly suggests that the jury did not convict the petitioner for penetration as the majority has defined it — a definition with which I wholeheartedly agree.