Text Messages and Using “A Computerized Communication System”

After being convicted of “one count of using a computerized communication system to facilitate a child sex crime” in violation of Wisconsin Statutes § 948.075(1r), Justin Scott Hamilton appealed. State v. Hamilton, 2012 WL 851230 (Wisconsin Court of Appeals 2012).

This is all the Court of Appeals’ opinion says about how the case arose:

[A]n undercover police officer sent a group message through a cellular phone chat network called UPOC, to a subgroup called Wisconsin Lounge, adopting the persona of a fourteen-year-old girl. Hamilton responded via text message on his cellular phone and arranged to meet the purported fourteen-year-old girl for purposes of engaging in sexual activity. Hamilton was arrested at the proposed meeting location.

State v. Hamilton, supra.

Hamilton moved to dismiss the charge, arguing that Wisconsin Statutes § 948.075(1r) “is unconstitutionally vague.” State v. Hamilton, supra. As Wikipedia notes, “void for vagueness” is a concept “in American constitutional law that states that a given statute is void and unenforceable if it is too vague for the average citizen to understand.”

Actually, the Supreme Court has held that the void for vagueness doctrine has two prongs: In Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the Court held that a vagrancy statute was void for vagueness “both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute’” and “because it encourages arbitrary and erratic arrests and convictions.”

The Court explained that the first flaw derives from the basic principle that the law must “give fair notice of” what conduct is prohibited; it found that the vagrancy statute violated this principle because it encompassed a variety of what would seem innocuous conduct to the ordinary person, such as strolling or walking at night. Papachristou v. City of Jacksonville.

It also explained that “[a]nother aspect of the ordinance's vagueness” lay “not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the . . . police.” Papachristou v. City of Jacksonville. The Court noted that the latter meant that “those convicted may be punished for no more than vindicating affronts to police authority.” Papachristou v. City of Jacksonville.

That, therefore, is the Constitutional principle on which Hamilton relied in arguing that Wisconsin Statutes § 948.075(1r) is unconstitutionally vague. State v. Hamilton, supra. The statute in question provides as follows:

Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation of [Wisconsin Statutes §§] 948.02(1) or (2) is guilty of a Class C felony.

Wisconsin Statutes § 948.02(1) defines the Class A or Class B felony of “first degree sexual assault” as having sexual intercourse with someone variously under the age of 12, 13 or 16 when certain circumstances (e.g., “use of force” or causing “great bodily injury”) apply. Wisconsin Statutes § 948.02(2) defines the Class C felony of “second degree sexual assault” as having sex with someone “who has not attained the age of 16 years.”

The trial judge denied Hamilton’s motion to dismiss the charge on the grounds that Wisconsin Statutes § 948.075(1r) is unconstitutionally vague. State v. Hamilton, supra. The case went to a bench trial and,

[a]t trial, Hamilton stipulated to all of the elements of the offense except that he had used `a computerized communication system.’ Hamilton contended that sending text messages on a cellular phone did not amount to such use.

State v. Hamilton, supra.

The trial judge apparently didn’t buy Hamilton’s argument, because he found Hamilton “had violated the statute, and thus found Hamilton guilty of the charged offense.” State v. Hamilton, supra. As noted above, Hamilton appealed, raising the same issue on appeal. State v. Hamilton, supra.

The Court of Appeals therefore began its analysis of his argument by noting that a statute is “unconstitutionally vague if it does not `set forth fair notice of the conduct prohibited or required and proper standards for enforcement of the law and adjudication.’” State v. Hamilton, supra (quoting State v. Popanz, 112 Wis.2d 166, 332 N.W.2d 750 (1983)). The court also explained that

in order to declare a statute unconstitutional on vagueness grounds, we must determine `that one bent on obedience may not discern when the region of proscribed conduct is neared, or . . . that the trier of fact in ascertaining guilt or innocence is relegated to creating and applying its own standards of culpability rather than applying standards prescribed in the statute or rule.’ [State v. Popanz, supra.] We look to whether a person of ordinary intelligence would have fair notice of the conduct prohibited by the statute. [State v. Popanz, supra.]

State v. Hamilton, supra.

The Court of Appeals noted that Hamilton “carries the burden of refuting the presumption that this statute is constitutional.” State v. Hamilton, supra. He attempted to refute this proposition by arguing that Wisconsin Statutes § 948.075(1r) “implicates 1st Amendment free speech rights, and thus the burden is on the State to prove its constitutionality beyond a reasonable doubt.” State v. Hamilton, supra. The appellate court did not agree, pointing out that the Wisconsin Supreme Court had held hat

1st Amendment protection does not `extend[ ] to speech that is incidental to or part of a course of criminal conduct’ in rejecting the same argument as to the child enticement statute. State v. Robins, 253 Wis.2d 298, 646 N.W.2d 287 (2002). . . .

Hamilton has not argued that there is any reason to distinguish [Wisconsin Statutes] § 948.075(1r), use of a computer to facilitate a child sex crime, as implicating First Amendment concerns the supreme court determined did not apply to [Wisconsin Statutes] § 948.07, child enticement. Accordingly, the burden remains on Hamilton to refute the presumption that the statute is constitutional.

State v. Hamilton, supra.

Hamilton then made his void for vagueness argument. He began with the premise that because “the phrase `a computerized communication system’ is not defined in the” statute, a “person of ordinary intelligence would not understand that `a computerized communication system’ includes sending and receiving text messages on a cellular phone.” State v. Hamilton, supra.

Hamilton also relied on the second prong of the void for vagueness doctrine, arguing that “the undefined term impermissibly delegates the responsibility of defining the standards of compliance with the law to those enforcing the statute, and thus the statute is subject to arbitrary application.” State v. Hamilton, supra.

The Court of Appeals found that “a person of ordinary intelligence would be apprised that the conduct alleged in this case constituted use of a computerized communication system under [Wisconsin Statutes] § 948.075(1r), and that the language of the statute provides sufficient guidance for its enforcement.” State v. Hamilton, supra. It noted, first, that there was “no dispute regarding the conduct at issue.” State v. Hamilton, supra.

At trial, the undercover officer involved in Hamilton's arrest testified that she communicated with Hamilton through the UPOC network, which she described as an `online chat community.’ The officer explained that an individual creates a profile on UPOC on the internet, and subscribes to social groups.

The user then receives online group or individual messages from other members in the group. Accounts may be set to forward online messages as text messages to cellular phone numbers. The officer also testified that the cellular phone Hamilton used in this case could access the internet.

State v. Hamilton, supra. The court also pointed out that a

store manager from AT & T testified that he was very familiar with the phone Hamilton used in this case, and explained that it operated on a GSM network. He further testified that the GSM network is a computerized system. He also explained that the UPOC network allows users to send messages from a personal computer, which then go through UPOC, and then are forwarded to a cellular phone.

State v. Hamilton, supra.

Based on this, the Court of Appeals found that

the phrase `a computerized communication system’ clearly encompasses Hamilton's use of his cellular phone to transmit and receive text messages through an internet-based chat community. A person of ordinary intelligence would understand that such conduct falls within the scope of the statute, and those charged with enforcing the law need not create their own standards to enforce the law on these facts.

State v. Hamilton, supra.

It explained that the relevant statutes define a “computer” as

`an electronic device that performs logical, arithmetic and memory functions by manipulating electronic or magnetic impulses, and includes all input, output, processing, storage, computer software and communication facilities that are connected or related to a computer in a computer system or computer network.’ [Wisconsin Statutes] § 943.70(1)(a).

The words `communication’ and `system’ have common definitions readily ascertainable from a dictionary. See State v. Hahn, 221 Wis.2d 670, 586 N.W.2d 5 (Ct. App.1998). The dictionary definitions for `communicate,’ which is the root of `communication,’ include `to send information or messages [,] sometimes back and forth.’ See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (unabr. ed.1993). The definitions for `system’ include `an organization or network for the collection and distribution of information, news, or entertainment.’ Id. at 2322.

State v. Hamilton, supra.

The Court of Appeals then explained that it was “clear from these terms” that Hamilton’s “use of his cellular phone in this case meets the definition of use of a computer under the statutes.” State v. Hamilton, supra. It also noted that Hamilton’s use of his phone

to receive and send text messages through an internet-based chat community that transmits messages between computers and cellular phones via a computerized network was plainly use of a computerized communication system in multiple respects.

To cite only one readily evident way of using these terms, Hamilton used an `electronic device,’ namely his phone, and specifically its `storage’ ability, to retain `memory’ of text messages, and to send this `information back and forth’ to a `network,’ namely UPOC online, that was obviously used `for the collection of information.’

A person of ordinary intelligence would be aware that registering for an internet-based chat community and receiving and sending text messages through that network on a cellular phone -- which itself operates on a computerized network -- is within the range of prohibited conduct.

Additionally, those with the responsibility of enforcing the law are not required to create their own legal standards to enforce it, as the law plainly covers the conduct in this case. The statute prohibits facilitating a child sex crime by use of a computerized communication system; that is, by use of an organization or network of computers that is used to send messages back and forth. That is what occurred in this case.

State v. Hamilton, supra.

The court therefore affirmed Hamilton’s conviction. State v. Hamilton, supra.