from an order of the circuit court for Kenosha County No.
2017CF1257: BRUCE E. SCHROEDER, Judge. Reversed and cause
remanded for further proceedings.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
The State appeals from an order dismissing six felony counts
against Medford B. Matthews, III, leaving one misdemeanor
count of sexual intercourse with a child. Four of the six
felony counts were for exposing intimate parts and two for
child enticement. Because some of these felony counts
involved acts related to those for the misdemeanor
intercourse count, the circuit court considered that the
decision to charge all of them, which would expose Matthews
to over seventy years in prison, was absurd and not what the
legislature could have intended. We cannot conclude that the
additional charges clearly defeat the intent of the
legislature. We therefore reverse and remand for further
On July 16, 2017, MJH, who was seventeen and one-half years
old, began a friendship with Matthews, her
twenty-eight-year-old boss at a supermarket. By mid-August,
the relationship started to become sexual, including kissing
in his car and, on September 1, at his house. On September 3,
Matthews stated that MJH came over to his house and he asked
her what exactly "are we or what do you want to
be." MJH told him that she wanted to be his girlfriend,
and they engaged in more sexual conduct.
Through the beginning of September, the two continued to meet
and touch each other in a sexual manner, including removing
clothing. On September 18, at his house, the most serious
touching occurred when Matthews put "his finger inside
of her vagina," which is the basis for the sexual
intercourse count. MJH had him stop, he did, and she
eventually left. Both Matthews and MJH agree that she was
Upon learning of the relationship, MJH's mother called
the police to have criminal charges filed against her
daughter's wishes. The State charged Matthews with
misdemeanor sexual intercourse with a child, Wis.Stat. §
948.09 (2017-18),  based on his touching of her vaginal area.
The State also charged Matthews with six felonies.
Specifically, because MJH's and Matthews's conduct
occurred inside of a residence rather than outside in plain
view, the State charged Matthews with two counts of child
enticement, Wis.Stat. § 948.07(3), as he allegedly
"cause[d]" MJH "to go into a building"
with the intent to expose intimate parts. One of these counts
occurred at the time of the sexual intercourse. Because MJH
and Matthews had removed clothing on several occasions, the
State charged Matthews with four counts of "exposing
intimate parts," Wis.Stat. § 948.10(1), with two of
those counts occurring at the time of the intercourse.
Matthews moved to dismiss the counts on various grounds.
After oral argument, the circuit court issued a written
decision, dismissing the six felonies. The court explained as
follows: Wisconsin law once made it a felony for an adult to
have nonmarital sexual intercourse with a child age sixteen
or older. The legislature later created Wis.Stat. §
948.09, which made that offense a misdemeanor. The court
could not understand how the State believed that the
misdemeanor intercourse could "occur without either
party exposing his or her genitals to the other,"
thereby necessarily and simultaneously committing the more
serious felony for exposure under Wis.Stat. § 948.10(1).
Similarly, the court was perplexed by the State's opinion
that if these two engaged in sexual contact out in public,
such as on the steps of the courthouse, "there would be
no crime of [e]nticement," but if Matthews first
suggested they step inside a courthouse room, he could be
charged with the more serious felony of child enticement,
which carries a twenty-five-year prison term.
Because the circuit court believed that the legislature
intended that "the completed acts of contact and
intercourse" constitute a misdemeanor, and that it would
be impossible for intercourse to occur without exposure of
intimate parts, it considered the charging decision an
"absurd one, which has the effect of defeating the
intent of the Legislature." Therefore, the court
dismissed the felony charges based on absurdity, hinting that
such charges, if deliberately brought to put pressure on
Matthews to plead guilty would, in such a case, be "an
abuse of power."
The State moved for reconsideration, which was denied. The
To be clear on the elements of the statutes, a person commits
a Class A misdemeanor offense of sexual intercourse with a
child age sixteen or older under Wis.Stat. § 948.09 when
he or she has nonmarital sexual intercourse with a child. The
offense carries a nine-month sentence. Wis.Stat. §
A person commits a Class I felony offense of exposing
intimate parts under Wis.Stat. § 948.10(1) when, for
purposes of sexual arousal or gratification, he or she causes
a child to expose intimate parts, or exposes his or her
intimate parts to the child. The offense carries a three and
one-half year prison sentence. Wis.Stat. § 939.50(3)(i).
A person commits a Class D felony offense of child enticement
with intent to expose intimate parts under Wis.Stat. §
948.07(3) when, intending to violate Wis.Stat. § 948.10
(exposure of intimate parts), he or she causes or attempts to
cause a child to go into any vehicle, building, room, or
secluded place. Sec. ...