March 30, 2015 – A man who allegedly used a cell phone to facilitate a child sex crime will get a new trial because the jury received improper instructions.
Rory McKellips was charged with using a “computerized communication system” to communicate with a minor intending to have sexual contact. He was also charged with repeated sexual assault and exposing himself but was acquitted on those charges.
However, the jury convicted McKellips on the computerized communication charge. He appealed, arguing that his “flip phone” was not a computer communication system, and the statute that prohibits computer exchanges with minors was unconstitutionally vague.
The trial uncovered that McKellips exchanged phone calls and text messages with a minor – a function of the “voice” network – but the evidence showed that McKellips’ phone had limited Internet capability and he never sent the minor any communications via Internet, although he may have downloaded some photos the minor sent him.
The jury received an instruction that said the state must prove McKellips used a “computerized communication system” to communicate with the minor. It said the jury should convict if it found that McKellips’ cell phone was considered a “computerized communication system.”
The instruction also gave the jury a definition of “computer” to aid in its determination of guilt. But in State v. McKellips, 2014AP827-CR (March 17, 2015), a three-judge panel for the District III Court of Appeals ruled that the jury instructions were improper.
McKellips argued that the use of his cell phone did not constitute use of a “computerized communication system,” unless he used the phone’s Internet capability.
The appeals court noted the term “computerized communication system” is not specifically defined. However, the panel also noted that the term seemed to distinguish “hardware” from software communication systems like email and Internet accounts.
“[A]s our above interpretation reveals, a cell phone or other device, itself, can never constitute a computerized communication system,” wrote Judge Michael Hoover.
But the trial court told the jury to decide whether the cell phone was a computerized communication system, providing a definition of “computer” to guide the decision.
“Instead, the court should have asked the jury whether McKellips’ various alleged uses of the cell phone constituted communication via a computerized communication system,” wrote Judge Hoover, concluding that the real controversy was not tried and thus McKellips was entitled to a new trial in the interests of justice.
