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NO.                           98-1451-CR
STATE OF WISCONSIN            IN COURT OF APPEALS
                              DISTRICT II
STATE OF WISCONSIN,           FILED
PLAINTIFF-RESPONDENT,         May 20, 1999
                              CLERK OF
V.
COURT Of APPEALS
OF WISCONSIN
DAVID P. BAKER,
DEFENDANT-APPELLANT.
ERRATA SHEET
Marilyn L. Graves                                             Court of Appeals District IV
Clerk of Court of Appeals                                     119 Martin Luther King Blvd.
P.O. Box 1688                                                 Madison, WI   53703
Madison, WI                   53701-1688
                                                              Hon. Robert J. Kennedy
Court of Appeals District I                                   Walworth County Courthouse
                              633 W. Wisconsin Ave., #1400    P.O. Box 1001
Milwaukee, WI                 53203-1918                      Elkhorn, WI   53121-1001
                              Court of Appeals District III   Mary V. Bowman
740 Third Street                                              Assistant Attorney General
Wausau, WI                    54403-5784                      P.O. Box 7857
                                                              Madison, WI 53707-7857
Jennifer Krapf
Administrative Assistant                                      Suzanne L. Hagopian
                              119 Martin Luther King Blvd.    Asst. State Public Defender
Madison, WI   53703                                           P.O. Box 7862
                                                              Madison, WI 53707-7862
Peg Carlson
Chief Staff Attorney                                          Phillip A. Koss
                              119 Martin Luther King Blvd.    District Attorney
Madison, WI   53703                                           Walworth County Courthouse
Elkhorn, WI 53121




PLEASE  TAKE  NOTICE  that  the  attached  page                                  5  is  to  be
substituted  for page  5 in the above-captioned opinion which was released  on
May 5, 1999.




NO. 98-1451-CR
The police officer who took the victim’s statement testified that the
victim was very upset when he related the incident to the officer.   The officer
testified that the victim told him Baker reached for the victim’s belt as if he were
going to grab it.
Baker testified and denied that he followed the victim to the tanning
booth and propositioned him for sex.   In rebuttal, the victim’s employer testified
that the victim was very upset, red-faced and shaking when he arrived at work a
few hours after his encounter with Baker.   The victim told the employer that a man
had exposed himself to him and that he had tried to get away from the man by
backing away.
On appeal, Baker argues that there is insufficient evidence that he
attempted to commit a third-degree sexual assault.   He argues that the evidence
shows that he attempted to convince the victim to have consensual sex; he did not
attempt  a  sexual  assault.    Baker  notes  the  victim  testified  that  Baker  never
touched, grabbed or lunged at the victim.
We agree that the record contains some inconsistent testimony from
the victim on the question of whether Baker reached for his belt while kneeling six
inches in front of the victim’s crotch.   However, it was for the jury to resolve this
inconsistency.   The victim testified that Baker made a motion to reach for his belt
after the victim had repeatedly and forcefully declined Baker’s requests for sex.  In
gesturing toward the victim’s belt from a position six inches from the victim’s
crotch after cornering the victim in a small tanning booth, the jury could infer that
Baker went beyond his persistent demands for sex and demonstrated an intent to
sexually assault  the  victim.    A  defendant’s  intent  “may be  inferred  from the
defendant’s conduct, including his words and gestures taken in the context of the
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