July 1, 2016 – The Wisconsin Supreme Court recently upheld a former girls’ high school basketball coach’s conviction for using a “computerized communications system” to facilitate sexual contact with a player, despite his argument that he did not use a computerized communication system when he used a flip-phone without internet.

In State v. McKellips, 2016 WI 51 (June 28, 2016), a 4-2 majority held that the state satisfied its burden to prove that McKellips used a “computerized communications system” when he exchanged texts, phone calls, and voicemails with a minor girl. Justice David Prosser did not participate.

The four-justice majority also held that the statute at issue, Wis. Stat. 948.075  – which prohibits use of a “computerized communication system” to facilitate sexual contact with a minor – is not unconstitutionally vague for people of ordinary intelligence. And the court upheld the jury instruction: even if it was faulty, the error was harmless.

In dissent, Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley), said the phrase “computerized communication system” is unconstitutionally vague.

Abrahamson also argued that the jury instructions given at trial misstated the law, evidence that the statute “lacks objective enforcement standards.”

Communications

McKellips was a 56-year-old girls’ varsity basketball coach at Athens High School, just west of Wausau, when he started calling and texting one of his freshman players after the basketball season. He used a flip-style cellphone, and bought her a flip-phone with minutes pre-loaded to conceal the communications from the girl’s parents. Police recovered the phones, which revealed that he used romantic relationship-type phrases.

The state alleged that McKellips used the phone to facilitate a secret sexual relationship with the girl. But it ended when the girl’s father found her secret cell phone. The girl admitted to the communications with McKellips, as well as the sexual relationship.

When police recovered McKellips’s cellphone, it revealed that he and the girl had exchanged more than 10,000 texts and calls.

McKellips was ultimately acquitted on sexual assault charges. The jury convicted him on a communication charge, although he never sent internet communications. However, an appeals court reversed, ruling faulty jury instructions entitled him to a new trial.

Computerized Communication System

The Supreme Court examined whether exchanging text and picture messages between flip-style phones that had limited internet connectivity constitutes use of a “computerized communication system,” ultimately ruling those exchanges satisfied the statute.

The majority noted the term “computerized communication system” is not defined in the statutes but rejected McKellips’s argument that communications between flip phones does not constitute use of a “computerized communication system” without the internet.

Reviewing the dictionary definitions of “computerized,” “communication,” and “system” supported the argument that flip phone exchanges fall within the statute prohibiting such exchanges to facilitate sexual contact with a minor, the majority concluded.

“Putting the three definitions together gives us the meaning of ‘computerized communication system’: A group of interacting, interrelated, or interdependent elements forming a complex whole used to exchange thoughts or messages through a computer,” wrote Justice R. Bradley.

“Although the flip-style cell phone involved here may not be advanced as some modern cellphones, McKellips’ use of it satisfied the definition of computerized.”

R. Bradley noted a cellphone expert’s testimony that all cellphone carriers use a computer network or computer system to transmit phone and text messages.

“We reject McKellips’ position that this statute requires use of the internet for conduct to satisfy ‘computerized communication system,'” she wrote. “If the legislature had intended to limit this statute to conduct involving the internet, it certainly could have done so.”

Not Unconstitutionally Vague

The majority also ruled that the statute is not unconstitutionally vague “because a person of ordinary intelligence would understand that using a cellphone to text or picture-message a child to entice sexual encounters violates the statute, and because the statute is capable of objective enforcement.” In other words, it is clear enough for citizens to understand what it prohibits, the majority explained.

“A statute is unconstitutionally vague if it fails to give fair notice to a person of ordinary intelligence regarding what it prohibits and if it fails to provide an objective standard for enforcement,” Justice R. Bradley wrote.

“’Computerized communication system’ is sufficiently definite in meaning based on each word’s common usage and ordinary understanding to satisfy fair notice requirements.”

The majority also rejected McKellips’s claim that the statute is so vague, it could extend to innocent persons who use their cellphones every day.

“It is absurd to suggest that a person of ordinary intelligence would not read the language of § 948.075 as fair notice that using a cell phone to send text messages to lure a child into sexual activity is against the law,” Justice R. Bradley wrote.

Jury Instruction Okay

The jury received an instruction that said it could convict McKellips if it found that the state had proved the cell phone he used was a “computerized communication system,” and received a definition of “computer” to aid in this determination.

But “computers” are different than “computerized communications systems,” the appeals court had noted. “[T]he court should have asked the jury whether McKellips’ various alleged uses of the cell phone constituted communication via a computerized communication system,” Appeals Court Judge Michael Hoover wrote.

But the Supreme Court majority did not see a problem. “[W]e hold that the jury instruction given here, although not perfect, when read as a whole, accurately stated the law,” Justice R. Bradley wrote. “Even if the instruction were erroneous, it was harmless error.”

Finally, the majority ruled that the court of appeals erred in exercising its discretionary reversal authority to grant a new trial in the interests of justice.

“We have already concluded that the wording used in the extra jury instruction did not result in reversible error,” R. Bradley wrote. “Because this was the sole basis for the court of appeals’ discretionary reversal, we must conclude it erred.”

Dissent

Justice Abrahamson, joined by A.W. Bradley, said the statute is unconstitutionally vague and does not provide objective enforcement standards.

“Without further legislative elucidation, the phrase ‘computerized communication system’ in Wis. Stat. § 948.075 does not provide fair notice of the conduct it prohibits,” she wrote.

“Perhaps the truth of this statement is best illuminated by the fact that both the defendant and the State took varying positions on the meaning of the phrase over the course of this case.”

She noted the prosecutor needed an expert to explain what the phrase meant in the context of cellphones at trial. And at oral argument, the assistant attorney general said an expert would be needed to determine if a person breaks the law when using a voice-only cellphone with no text, photo, or internet features.

“[W]hen the meaning of a statute varies from case to case based on expert testimony, ‘it raises serious constitutional vagueness questions,’” Abrahamson wrote.

She also said defining the words “computerized,” “communication,” and “system” in isolation to define the phrase defies common English usage and common sense.

And she argued that the statute is unclear to the point that it cannot be objectively enforced, as evidenced by the problematic jury instructions given.

“Instructing the jury on what a ‘computer’ or ‘computer system’ is does not illuminate what a ‘computerized communication system’ is,” she wrote, noting the jury was likely confused. “They seem to have confused the court and attorneys at trial.”

Finally, Justice Abrahamson noted that McKellips sat in jail pending Supreme Court review, and he had requested release on bail after reversal. But there were questions about the circuit court’s jurisdiction and competency to make a bail request decision.

McKellips had asked the Supreme Court to decide. Abrahamson said “a member of the court refused to allow a discussion of this matter at oral argument.”

“McKellips’ filing raises legal questions about the procedure to be followed in circuit courts, the court of appeals, and this court when release on bail is requested following the reversal of a conviction by the court of appeals,” she wrote.

Abrahamson said the Court should have considered the matter. “Now, the majority opinion denied the petition for review/motion without explanation,” she noted.