dissenting:

Because I would hold that insufficient evidence supports Walters’ convictions for attempted first-degree rape and sodomy, I respectfully dissent.

Walters was convicted, following a jury trial, of attempted first-degree kidnapping, attempted first-degree rape, and attempted first-degree sodomy. The trial court sentenced him as a dangerous offender (based on his 1981 convictions for kidnapping, rape, and sodomy) to consecutive sentences as follow: 30 years with a 15 year minimum for attempted kidnapping, 20 years with a 10 year minimum for attempted rape, and 10 years with a 5 year minimum for attempted sodomy. Walters contends that the evidence was insufficient to support his convictions on all three counts.

Under Oregon law, conviction for attempt requires proof beyond a reasonable doubt that the defendant “intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” Or.Rev. Stat. § 161.405(1); State v. Walters, 804 P.2d 1164, 1167 (Or.), cert. denied, — U.S. -, 111 S.Ct. 2807 , 115 L.Ed.2d 979 (1991).

To constitute a substantial step toward the commission of a crime, the defendant’s conduct must (1) advance the criminal purpose charged and (2) strongly corroborate the existence of that purpose. Walters, 804 P.2d at 1167 ; see United States v. Scott, 767 F.2d 1308, 1311 (9th Cir.1985); accord United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir.1991) (purpose of substantial step requirement in attempt crimes is to corroborate the actor’s specific intent to commit the crime). Mere preparation is insufficient to constitute a substantial step. Walters, 804 P.2d at 1167 -68 & n. 8; State v. Sargent, 110 *896 Or.App. 194 , 822 P.2d 726, 728 (1991); accord Scott, 767 F.2d at 1311 .

The difference between making preparations and taking a substantial step toward the commission of a crime is one of degree. Scott, 767 F.2d at 1311 ; see Walters, 804 P.2d at 1167 -68 & n. 8. In evaluating whether conduct constitutes a substantial step, we have stated that although behavior need not be incompatible with innocence to be punishable as an attempt, “ ‘it must be necessary to the consummation of the crime and be of such a nature that a reasonable observer, viewing it in context[,] could conclude beyond a reasonable doubt that it was undertaken in accordance with a design’” to commit the particular crime charged. Scott, 767 F.2d at 1312 (quoting with approval United States v. Manley, 632 F.2d 978, 987-88 (2d Cir.1980), cert. denied, 449 U.S. 1112 , 101 S.Ct. 922 , 66 L.Ed.2d 841 (1981)). Moreover, a substantial step must entail “an ‘overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.’” Id. (quoting with approval Manley, 632 F.2d at 988 ).

Walters asserts that the evidence was insufficient to establish his intent to commit the crimes of first-degree kidnapping, rape, and sodomy and to establish that he took a substantial step toward the commission of those crimes.

Certainly Walters’ intent is manifested by (1) evidence regarding his use of the fictitious German shepherd ruse in 1981 to kidnap, rape, and sodomize another thirteen-year old girl, (2) his persistent attempts to lure the victim in this case into his truck using the same ruse, and (3) his actions in following the victim home. In addition, Walters’ attempt to entice the victim into his truck clearly advances the criminal purpose of first-degree kidnapping and strongly corroborates the existence of his purpose to commit that crime. Thus, I agree with the majority opinion and the Oregon Supreme Court that this conduct constitutes a substantial step toward the commission of the crime of first-degree kidnapping, and I would affirm Walters’ conviction for attempted first-degree kidnapping.

The more troubling question is whether Walters’ attempt to entice the victim into his truck constitutes a substantial step toward the commission of the crimes of rape and sodomy when the only evidence of intent to rape and sodomize is Walters’ 1981 crimes where he kidnapped, raped, and sodomized a thirteen-year old girl. If in 1981, Walters had committed other crimes (for example, breaking the victim’s arm and stealing her wallet), it would be difficult to conclude that enticement into the truck constitutes a substantial step toward the commission of those crimes. At some point, the link between the enticement and the charged crimes becomes too attenuated: we cannot say that the enticement strongly corroborates any intent to commit those crimes such that a “reasonable observer, viewing it [the enticement] in eon-text[,] could conclude beyond a reasonable doubt that it was undertaken in a design” to commit the crimes. See Scott, 767 F.2d at 1312 (quotation omitted).

Here, the only step Walters took toward the commission of the charged crimes was his attempt to entice the victim into his truck. It may be that this act to some extent corroborates Walters’ intent to commit some sexual assault, but I cannot agree that it strongly corroborates his intent to commit those crimes. See Scott, 767 F.2d at 1312 . Moreover, attempting to entice the victim into a truck does not, in the ordinary and likely course of events, result in the crimes of rape and sodomy. See id.; cf. Plenty Arrows, 946 F.2d at 66 (placing penis against victim’s anus was not a substantial step toward the completion of the crime of anal sodomy; evidence constitutionally sufficient only for the lesser offense of abusive sexual contact); Sullivan v. State, 766 P.2d 51, 53 (Alaska App.1988) (defendant asked eight-year old if she would be his “girlfriend” and offered her money; after the girl responded, “no,” he sent her a note with spaces for “yes” and “no” answers asking her to be his girlfriend, to kiss him, and to get him another girlfriend; evidence established intent but did not constitute a substantial step toward “sexual contact” with a minor).

In sum, where the only evidence of Walters’ intent to commit the crimes of rape and *897 sodomy is the 1981 crimes, I believe that Walters’ attempt to entice the victim into his truck is not a substantial step toward the commission of the crimes of first-degree rape and sodomy. Accordingly, I would reverse Walters’ convictions for attempted rape and sodomy for constitutional insufficiency of the evidence.