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State v. Matthews

Court of Appeals of Wisconsin, District II

July 24, 2019

State of Wisconsin, Plaintiff-Appellant,
Medford B. Matthews, III, Defendant-Respondent.

          APPEAL from an order of the circuit court for Kenosha County No. 2017CF1257: BRUCE E. SCHROEDER, Judge. Reversed and cause remanded for further proceedings.

          Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

          NEUBAUER, C.J.

         ¶1 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 proceedings.


         ¶2 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.[1] 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.

         ¶3 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 never forced.

         ¶4 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), [2] based on his touching of her vaginal area.

         ¶5 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.

         ¶6 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.

         ¶7 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."

         ¶8 The State moved for reconsideration, which was denied. The State appeals.


         ¶9 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. § 939.51(3)(a).

         ¶10 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).

         ¶11 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. ...

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