State v. Demetrius Gus McCray

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 25, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2024AP476-CR Cir. Ct. No. 2022CF111

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DEMETRIUS GUS MCCRAY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI and DAVID C. SWANSON, Judges.
Affirmed.

Before White, C.J., Colón, P.J., and Geenen, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP476-CR

¶1 PER CURIAM. Demetrius Gus McCray was originally charged with
one count of second-degree sexual assault of a child under 16 years of age, WIS.
STAT. § 948.02(2) (2023-24),1 for groping and sucking the breasts of a 13-year-old
girl and touching her vagina over her underwear. Pursuant to a plea agreement,
McCray pleaded guilty to one count of third-degree sexual assault by sexual
intercourse, WIS. STAT. § 940.225(3)(a), and was sentenced to a total of five years
of imprisonment. Second-degree sexual assault of a child, § 948.02(2), criminalizes
“sexual contact or sexual intercourse” with anyone younger than 16 years old and
is punishable by up to 40 years of imprisonment, WIS. STAT. § 939.50(3)(c), while
third-degree sexual assault, § 940.225(3)(a), criminalizes “sexual intercourse” with
anyone without that person’s consent and is punishable by up to 10 years of
imprisonment. Sec. 939.50(3)(g). After sentencing, McCray moved to withdraw
his plea, arguing that his plea was not knowingly, intelligently, and voluntarily
entered because the circuit court2 failed to ensure that he understood the elements
of third-degree sexual assault by sexual intercourse.

¶2 The postconviction court3 held a Bangert4 hearing at which trial
counsel testified that she reviewed the elements of third-degree sexual assault with
McCray by going “verbatim over everything” in the jury instruction for that charge
as part of the plea questionnaire and waiver of rights form. She also explained that
she crossed out the first reference to “intercourse” in the instruction and replaced it

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
The Honorable David L. Borowski took McCray’s plea and sentenced him. We refer to
Judge Borowski as the circuit court.
3
The Honorable David C. Swanson presided over the postconviction proceedings. We
refer to Judge Swanson as the postconviction court.
4
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).

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No. 2024AP476-CR

with “contact” because McCray was adamant that he did not have sexual intercourse
with the victim, and because the factual basis for McCray’s guilty plea was his
groping of the victim’s breast. Counsel further testified that she explained to
McCray that pursuant to Wisconsin law, when a defendant pleads to a related crime,
the facts “don’t have to exactly fit” the statutory elements of that crime for the
purpose of allowing the defendant to receive the benefit of a plea agreement. Based
on its review of the plea proceedings and trial counsel’s testimony, the
postconviction court denied McCray’s motion, concluding that the State met its
burden to prove by clear and convincing evidence that McCray’s plea was
knowingly, intelligently, and voluntarily entered.

¶3 McCray appeals from the judgment of conviction and from the
postconviction court’s order denying his motion to withdraw his guilty plea. We
agree with the postconviction court that McCray was sufficiently aware of the
elements of third-degree sexual assault by sexual intercourse when he entered his
guilty plea. Accordingly, we affirm the judgment and order.

BACKGROUND

¶4 According to the complaint, Helen,5 the 13-year-old daughter of
McCray’s girlfriend, was asleep in her room when she was awakened by McCray,
who had placed his arms around her neck and torso. McCray kissed her on her
cheeks, her mouth, and attempted to “French Kiss” her. He then removed her
breasts from her shirt and groped and sucked on them. He also put his hands down
her pants and touched her vagina on top of her underwear. Helen reported the
assault two days later during a forensic interview at the Milwaukee Children’s

5
We use the pseudonym “Helen” to refer to the victim in this case. See WIS. STAT.
RULE 809.86.

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No. 2024AP476-CR

Advocacy Center. The same day Helen reported the assault, detectives interviewed
McCray. McCray told police that he kissed Helen, removed her breasts from her
shirt, and kissed her breasts. The State charged McCray with one count of second-
degree sexual assault of a child under 16 years of age.

¶5 The State and McCray entered into a plea agreement under which the
State would move to amend the second-degree sexual assault of a child count to
third-degree sexual assault under WIS. STAT. § 940.225(3)(a), in exchange for
McCray’s guilty plea. The original charge carried a maximum sentence of 40 years
of imprisonment while the amended charge carried a maximum sentence of 10 years
of imprisonment. WIS. STAT. §§ 939.50(3)(b) and (g), 940.225(3)(a), 948.02(2).

¶6 The State explained at the plea hearing that it was offering this
amendment under State v. Harrell, 182 Wis. 2d 408, 513 N.W.2d 676 (Ct. App.
1994), because “the factual basis did not align exactly with the underlying conduct
outlined in the complaint, but [the State] did discuss that with defense counsel.”
The circuit court addressed McCray directly and confirmed with him that he “heard
the conversation from the State and [his] attorney” regarding the amendment. The
circuit court asked trial counsel whether she “discussed with and explained to
[McCray] the elements of this offense” and whether she was “satisfied [McCray]
understands the elements,” and she responded, “Yes.”

¶7 The circuit court confirmed with McCray that he had read and signed
the plea questionnaire and waiver of rights form and had reviewed it with trial
counsel. Attached to the questionnaire was jury instruction WIS JI—CRIMINAL
1218A, titled “Third-Degree Sexual Assault: Sexual Intercourse Without
Consent—[WIS. STAT. §] 940.225(3)(a)” which set forth the statutory definition of

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No. 2024AP476-CR

third-degree sexual assault by sexual intercourse. It lists the two elements of the
crime as follows:

1. The defendant had sexual intercourse with (name of
victim).

2. (Name of victim) did not consent to the sexual
intercourse.

Regarding the first element, a handwritten “x” appears over the word “intercourse,”
and the word “contact” is handwritten above it. “Intercourse” is not crossed out in
the second element or the six other times that the jury instruction references
“intercourse.” The instruction defines “sexual intercourse” and “consent,” but does
not define or reference “sexual contact.”

¶8 The circuit court asked trial counsel whether she had reviewed “the
agreement” with McCray, and she replied that she did. She also confirmed that she
reviewed the jury instruction with McCray, and she told the circuit court that she
believed McCray’s plea was voluntary and intelligent. The parties stipulated that
the complaint set forth a factual basis for the plea after the circuit court stated that
it was “noting what the State said about the plea and the amendment[.]” The circuit
court accepted McCray’s guilty plea, and at a subsequent hearing, it sentenced
McCray to five years of prison, consisting of two years of initial confinement
followed by three years of extended supervision, consecutive to a revocation
sentence McCray was already serving.6

¶9 McCray filed a postconviction motion to withdraw his plea, arguing
that his plea was not knowing, intelligent, and voluntary because “he was unaware
of the correct elements of the charged offense.” Specifically, McCray argued that

6
McCray was previously convicted of second-degree reckless homicide and, as a result of
sexually assaulting Helen, his extended supervision was revoked, and he was re-confined.

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No. 2024AP476-CR

the jury instruction that he reviewed with his attorney was defective because it
incorrectly stated that the first element of third-degree sexual assault “merely
required proof of sexual contact.” Alternatively, he argued that the instruction was
defective because it did not explain that third-degree sexual assault based on sexual
contact required proof that the defendant intended to either (1) become sexually
aroused or gratified; or (2) sexually degrade or humiliate the victim. See WIS. STAT.
§ 940.225(3)(b), (5)(b)2., and (5)(b)3.

¶10 The postconviction court held a Bangert hearing at which trial
counsel testified that she had reviewed the elements for third-degree sexual assault
with McCray by going “verbatim over everything” on the jury instruction, including
the definition of consent and sexual intercourse. While reviewing the definition of
sexual intercourse, McCray was “adamant he did not engage in the sexual
intercourse[.]” Trial counsel testified that she added the word “contact” “partly to
please him, but also partly because that is what he was pleading to.” She added that
because McCray “was adamant there was no sexual intercourse,” “contact is there
to say it was just for breast contact, not intercourse.” Trial counsel stated that she
explained to McCray that Wisconsin law allows a defendant to plead guilty to a
related crime even if the facts “don’t … exactly fit.” She told him that “[h]e’s
getting the benefit of an amendment” and that the amendment “was just for breast
contact.” In the several weeks between the plea hearing and the sentencing hearing,
McCray never expressed any concerns about his understanding of the crime to
which he had pleaded guilty. After sentencing, McCray told trial counsel he wished
to appeal, and trial counsel testified that she presumed that McCray “was probably
unhappy [the sentence] was consecutive.”

¶11 After reviewing the plea paperwork and the transcript, the
postconviction court found that McCray “was sufficiently advised of the elements

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No. 2024AP476-CR

that the State would have to prove” and that his plea was knowing, intelligent, and
voluntary. It credited trial counsel’s testimony that “she had reviewed all of these
issues and the complaint with Mr. McCray[.]” It also noted that the circuit court’s
plea colloquy was “very clear” and that McCray stated during the colloquy that he
understood the amended third-degree sexual assault charge and wished to plead
guilty to it.

¶12 The postconviction court further stated that, under the plea agreement,
the underlying charge was “reduced to one count of third-degree sexual assault,
sexual contact without consent[.]” It stated it believed that the jury instruction trial
counsel “should [have] used was 1218B as opposed to 1218A.”7 The postconviction
court reasoned that, though there was a difference between the two jury instructions,
“it was not a significant difference[.]” Accordingly, it denied McCray’s motion to
withdraw his guilty plea.

¶13 McCray appeals.

DISCUSSION

¶14 McCray argues that his plea was not knowingly, intelligently, and
voluntarily entered, and he is entitled to withdraw it, because the circuit court failed
to ensure that he understood the elements of third-degree sexual assault. “Whether
a guilty plea was entered knowingly, intelligently, and voluntarily is a question of
constitutional fact.” State v. Fugere, 2019 WI 33, ¶17, 386 Wis. 2d 76, 924 N.W.2d
469. We accept the circuit court’s findings of historical fact unless they are clearly

7
As both parties point out, these statements are not accurate. The State and McCray agree,
and the record shows, that the form of third-degree sexual assault McCray pleaded guilty to was
third-degree sexual assault based on intercourse under WIS. STAT. § 940.225(3)(a), not sexual
contact under § 940.225(3)(b). This mistake does not affect our analysis.

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No. 2024AP476-CR

erroneous, and we independently determine whether those facts show that the
defendant entered a knowing, intelligent, and voluntary plea. State v. Brown, 2006
WI 100, ¶19, 293 Wis. 2d 594, 716 N.W.2d 906.

¶15 To ensure that a plea is knowing, intelligent, and voluntary, a circuit
court must “[a]ddress the defendant personally and determine that the plea is made
voluntarily with understanding of the nature of the charge and the potential
punishment if convicted.” WIS. STAT. § 971.08(1)(a). A circuit court must hold an
evidentiary hearing on a motion for plea withdrawal if the motion: (1) makes a
prima facie showing that the plea was accepted without the court’s conformance
with § 971.08 or other mandatory duties; and (2) alleges that the defendant in fact
did not know or understand information that should have been provided during the
plea colloquy. State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986). At
the evidentiary hearing, the State bears the burden of proving by clear and
convincing evidence that the defendant’s plea was validly entered despite the
deficiencies in the plea colloquy. Id.

¶16 McCray argues that the jury instruction that he reviewed with trial
counsel was defective because it incorrectly stated that the first element of third-
degree sexual assault was “sexual contact.” McCray claims trial counsel did not
advise him that the State would have to prove that he had sexual intercourse with
Helen in order to convict him of third-degree sexual assault by sexual intercourse.

¶17 However, trial counsel testified that she had reviewed the elements for
third-degree sexual assault with McCray by going “verbatim over everything” on
the jury instruction, including the definition of consent and sexual intercourse.
While reviewing the definition of sexual intercourse, McCray was “adamant he did
not engage in the sexual intercourse[.]” Trial counsel testified that she added the

8
No. 2024AP476-CR

word “contact” “partly to please him, but also partly because that is what he was
pleading to.” She added that because McCray “was adamant there was no sexual
intercourse,” “contact is there to say it was just for breast contact, not intercourse.”
Trial counsel stated that she explained to McCray that Wisconsin law allows a
defendant to plead guilty to a related crime even if the facts “don’t … exactly fit.”
She told him that “[h]e’s getting the benefit of an amendment” and that the
amendment “was just for breast contact.” This is both an accurate statement of the
law8 and consistent with what would actually occur during the plea hearing, i.e., that
McCray would concede to the “breast contact” alleged in the complaint as the
factual basis for the amended charge, third-degree sexual assault by sexual
intercourse under WIS. STAT. § 940.225(3)(a), even though the conceded facts
would not “exactly fit” the elements of the amended charge. The postconviction
court found this testimony credible. Its finding that trial counsel “had reviewed all
of these issues and the complaint with Mr. McCray” was not clearly erroneous.

¶18 McCray further argues that trial counsel was required to make him
aware of the elements for third-degree sexual assault based on sexual contact. We
disagree. WISCONSIN STAT. § 971.08(1)(a) refers to the “nature of the charge,” and
8
In State v. Harrell, we held that the factual basis requirement of WIS. STAT.
§ 971.08(1)(b) is satisfied when “a factual basis is shown for either the offense to which the plea is
offered or to a more serious charge reasonably related to the offense to which the plea is offered.”
State v. Harrell, 182 Wis. 2d 408, 419, 513 N.W.2d 676 (Ct. App. 1994). This rule “reflects the
reality that often in the context of a plea bargain, a plea is offered to a crime that does not closely
match the conduct that the factual basis establishes.” Id.

In this case, McCray does not challenge the sufficiency of the factual basis for his guilty
plea, and the record demonstrates that trial counsel explained to McCray why he was being allowed
to plead guilty to third-degree sexual assault by sexual intercourse even though he would only be
admitting to having “breast contact” with Helen. Indeed, McCray’s adamance that he did not have
sexual intercourse with Helen when reviewing the definition of sexual intercourse with trial counsel
demonstrates that McCray understood that the factual basis for his plea would not “closely match”
the actual elements that the State would have to prove to convict him of third-degree sexual assault
by sexual intercourse, and he was being allowed to enter the plea in order to “get the benefit of the
amendment” agreed to in the plea agreement. Id.

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No. 2024AP476-CR

in this case, McCray was charged with third-degree sexual assault by sexual
intercourse under WIS. STAT. § 940.225(3)(a) and not third-degree sexual assault by
sexual contact under § 940.225(3)(b). McCray was not charged under
§ 940.225(3)(b) in the original complaint and information or the amended
information, so neither the circuit court nor trial counsel was required to make him
aware of the elements of a crime for which he was never charged and to which he
would not be pleading guilty. See Bangert, 131 Wis. 2d at 268-69 (summarizing
the methods by which a circuit court may satisfy its obligation to personally
determine the defendant’s understanding of the nature of the charged crime).

¶19 We agree with the postconviction court that the State proved by clear
and convincing evidence that McCray was aware of the elements of third-degree
sexual assault by sexual intercourse, WIS. STAT. § 940.225(3)(a), when he entered
his plea. Trial counsel credibly testified that she went over all of the elements with
McCray, including the definition of “sexual intercourse,” and that trial counsel
explained to McCray why he was being allowed to plead guilty to third-degree
sexual assault by sexual intercourse even though he would only be admitting to
having groped Helen’s breasts. Moreover, because he was never charged with third-
degree sexual assault by sexual contact under § 940.225(3)(b), the circuit court was
not required to ascertain his understanding of the elements of that crime.

CONCLUSION

¶20 We agree with the postconviction court that McCray’s plea was
knowingly, intelligently, and voluntarily entered. Accordingly, we affirm the
judgment of conviction and the postconviction court’s order denying McCray’s
motion to withdraw his plea.

By the Court.—Judgment and order affirmed.

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No. 2024AP476-CR

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

11