2010AP1179-CR State v. McCredie

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Sexual Assault
Consent by fraud

Kelly J. McCredie argues that sexual intercourse by fraud is not a crime in Wisconsin. McCredie entered the victim’s darkened bedroom one night. When the victim spoke to McCredie she erroneously believed that it was McCredie’s brother. McCredie did not correct her and proceeded to engage in sexual intercourse. McCredie was convicted by a jury of third-degree sexual assault. On appeal, McCredie argues that there is no legal basis for his conviction as the victim consented to sexual intercourse, albeit thinking it was with McCredie’s brother. McCredie argues that because the jury instructions did not reflect his “theory of the defense,” he is entitled to a new trial. We hold that there is no support for McCredie’s sexual intercourse by fraud theory, and that the circuit court properly rejected McCredie’s proposed jury instructions. McCredie’s conviction is therefore affirmed. Not recommended for publication in the official reports.

2010AP1179-CR State v. McCredie

Dist II, Manitowoc County, Fox, J., Reilly, J.

Attorneys: For Appellant: Schmaal, William E., Madison; For Respondent: Rohrer, Mark R., Manitowoc; Whelan, Maura F.J., Madison

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