“Using a Computer to Facilitate a Child Sex Crime” and the Flip-style Cellphone

This post examines an opinion from the Supreme Court of Wisconsin: State v. McKellips, 2016 WI 51 (2016). The court begins the opinion by explaining that the

State appeals the court of appeals published decision reversing child conviction after a jury found McKellips guilty of using a computer to facilitate a child sex crime contrary to Wisconsin Statutes § 948.075(1r) (2013–14). The main issue in this case is whether the element, use of a `computerized communication system’ in § 948.075(1r), was satisfied when McKellips used his flip-style cellphone to exchange texts with, and receive picture messages from, the fourteen-year-old victim.

State v. McKellips, supra.

The opinion then explained how, and why, the prosecution arose:

Athens High School hired 56–year–old McKellips to coach the varsity girls' basketball team for the 2010–11 season. The Athens team was struggling to win games and McKellips had successfully coached other teams to state championships. In addition to coaching high school basketball, McKellips worked at Wausau Paper as a coal unloader.

In selecting the team for the 2010–11 season, McKellips chose two talented freshman to play on the varsity team: C.H. and her friend, T.R. During the season, McKellips called C.H.'s mother's home phone to praise C.H.'s basketball talent. He also called C.H.'s cellphone to tell her how well she played and talk to her about her potential to receive a college basketball scholarship. At the end of one of these phone calls, McKellips said `I love you.’ C.H. told T.R. about this and realized McKellips was not having the same type of frequent contact with T.R.

After high school basketball season ended, C.H. continued to play basketball with an Amateur Athletic Union (AAU) tournament team. McKellips' cellphone contact with C.H. increased and expanded beyond the topic of basketball. In May 2011, C.H.'s AAU team played in a tournament in Minnesota. While in Minnesota, C.H.'s mother noticed C.H. talking on C.H.'s cellphone. When C.H. told her mother she was talking to McKellips, her mother told her to get off the phone and told C.H. that if her coach wanted to talk to C.H., he should call their home phone. C.H.'s father also told C.H. the same thing—that if her coach wanted to talk to her, he should call the home phone.  When C.H. told McKellips that he had to call the home phone to talk to her, McKellips bought C.H. a Motorola flip-style TracPhone without her parents' knowledge or permission.

On June 10, 2011, the Athens Varsity Softball Team played in the sectional playoff game in Wausau. C.H. was on the team. McKellips attended the game and met C.H. and her family at a restaurant afterwards. McKellips snuck the cellphone to C.H. at the restaurant.

On June 11, 2011, C.H. played in an AAU basketball game, during which she tore her ACL. Her mother picked her up and arranged to take her to McKellips' home because her mother had other plans, did not want C.H. to be alone, and felt McKellips could help reassure C.H. regarding injury recovery. As McKellips helped C.H. into the car, he kissed C.H. on the cheek. After this, McKellips started calling her endearing names like `baby doll’ and `sweetheart’ and gave her gifts. Over the next several months, according to C.H., she engaged in a secret sexual relationship with McKellips.

State v. McKellips, supra.

The opinion goes on to explain that on

Labor Day in September 2011, the relationship ended when C.H.'s father found her secret cellphone. C.H. admitted McKellips had bought it for her. C.H. texted McKellips using a texting app on her iPod to warn him that her father had found the cellphone and to reassure McKellips that she would keep their secret. Over the next two days, C.H. told her parents about her relationship and sexual contact with McKellips. On September 7, 2011, C.H. told the police her accounting of what happened with McKellips. On September 9, 2011, Police Officer Matt Wehn went to talk to McKellips about what C.H. reported. When Wehn arrived at McKellips' workplace, Wehn asked for McKellips' cellphone. McKellips told Wehn that he had just dropped the cellphone in a coal pit but would try to recover it later that day. McKellips later admitted, however, that he lied about losing his cellphone, had hid the cellphone, and did not want to turn it over to police. Wehn took McKellips into the police station for questioning. McKellips denied having any sexual contact with C.H.

Police searched McKellips' workplace to look for his cellphone in the coal pit, but no phone was found. Three days later, McKellips returned to his workplace to retrieve his phone from where he hid it. In May 2012, he gave his phone to his attorney who turned it over to police. The police investigation showed that between December 18, 2010 and July 27, 2011, there were 8,324 total contacts between McKellips' cellphone and C.H.'s regular cellphone (4,816 texts from C.H. to McKellips and 3,184 texts from McKellips to C.H.). Between June 10, 2011 and July 27, 2011, records show 2,426 total contacts between McKellips' cellphone and C.H.'s secret cellphone. McKellips' cellphone, when received by police, however, had no content on it from November 16, 2010 through July 28, 2011. Text messages between McKellips and C.H. on July 29–30, 2011 were recovered. These included an exchange of `love you’ and McKellips' text to C.H., `Morning beautiful day yesterday.’ Police also recovered C.H.'s and McKellips' contacts on C.H.'s iPod from the day the secret cellphone was discovered.

The State charged McKellips with repeated sexual assault of a child, exposing genitals or pubic area, use of a computer to facilitate a child sex crime, and resisting or obstructing an officer. McKellips pleaded not guilty and the case was tried to a jury.

State v. McKellips, supra. You can, if you are interested, read more about the case in the news stories you can find here and here.

The opinion goes on to explain that at the trial, the

State called 16 witnesses. C.H. testified first. She described how her relationship with McKellips developed. It started when he selected her to play for the varsity high school basketball team. Calls and texts from McKellips during that season generally focused on basketball. There was only one unusual call where he ended by saying `I love you.’ When the season ended, the contacts with McKellips increased, and both of her parents told herthis cellphone contact needed to stop. While in Minnesota for an AAU tournament, her mother got upset with her for talking to McKellips and told her he was her coach and could call the home phone. When C.H. told McKellips that, he said he would buy C.H. a cellphone so they could continue the contacts without her parents' knowledge. McKellips slipped her the newly-purchased cellphone when they met after a softball game. It was a Motorola flip-style TracFone that she activated and to which she added minutes so she could secretly communicate with McKellips. After C.H. tore her ACL, she convinced her mother to let her spend time with McKellips and his wife who were going to a grandson's baseball game. C.H. testified that this is when the first physical contact occurred: as McKellips helped her to the car and with his wife not around, McKellips kissed her on the cheek. After this incident, their cellphone contacts increased and McKellips started using relationship terms when talking to her such as `baby doll’ and `sweetheart.’ He told her he loved her.

State v. McKellips, supra.

The court then listed the many other witnesses who testified for the prosecution at McKellips trial and the outcome of the trial.  State v. McKellips, supra. It explained that the

jury convicted McKellips on the Wis. Stat. § 948.075 charge and obstruction, but acquitted him of the other two charges. He was sentenced to 15 years, consisting of ten years of initial confinement followed by five years of extended supervision on the computer charge and nine months concurrent on the obstruction charge. 

State v. McKellips, supra.

McKellips appealed to the Wisconsin Court of Appeals, which

held that the jury instruction on § 948.075 `misdirected’ the jury by asking it to determine whether the cellphone itself constituted the computerized communication system instead of asking the jury `whether McKellips' various alleged uses of the cell phone constituted communication via a computerized communication system.’ State v. McKellips, 2015 WI App 31, ¶ 22, 361 Wis.2d 773, 864 N.W.2d 106. The court of appeals exercised its discretionary authority under Wis.Stat. § 752.35, reversed McKellips' conviction, and ordered a new trial in the interest of justice because `the real controversy was not tried.’ Id.

            The State petitioned this court for review, which we granted.

State v. McKellips, supra.

The Supreme Court then took up the “flip-style cellphone” issue, explaining that the

main dispute is whether an exchange of texts and picture messages between flip-style cellphones constitutes use of a `computerized communication system’ in Wiscnsin Statutes Stat. § 948.075(1r). The State argues that such exchanges satisfy that term. McKellips disagrees, and asserts that the term is only satisfied when the internet is involved. We agree with the State.

State v. McKellips, supra.

The opinion goes on to explain that

32 Wisconsin Stat. § 948.075, entitled, `[u]se of a computer to facilitate a child sex crime,’ provides:

(1r) 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 s. 948.02(1) or (2) is guilty of a Class C felony.

(2) This section does not apply if, at the time of the communication, the actor reasonably believed that the age of the person to whom the communication was sent was no more than 24 months less than the age of the actor.

(3) Proof that the actor did an act, other than use a computerized communication system to communicate with the individual, to effect the actor's intent under sub. (1r) shall be necessary to prove that intent.

`Computerized communication system’ is not defined in this statute, but under statutory interpretation rules, we may apply the ordinary and accepted meaning of this term unless it has a technical or special definition. See State ex rel. Kalal, 271 Wis.2d 633, ¶ 45, 681 N.W.2d 110. In doing so, we may use a dictionary to establish the common meaning of an undefined statutory term. State v. Sample, 215 Wis.2d 487, 499–500, 573 N.W.2d 187 (1998). The court of appeals concluded `computerized communication system’ must be a `legislative term of art’ because it was `unable to locate a definition for the term in any dictionaries or internet searches.’ McKellips, 361 Wis.2d 773, ¶ 12, 864 N.W.2d 106. We are not convinced `computerized communication system’ is a special or technical term. Rather, it is three commonly understood words used together. Although our dictionary does not specifically define the term `computerized communication system,’ it does define `computerized,’ `communication,’ and `system.’ Thus, we can examine the dictionary definitions of each of these three common words to ascertain their meaning when used together.

State v. McKellips, supra.

The Supreme Court then outlined its analysis of this issue, explaining that

`Computerized’ is defined as: “[o]f or relating to a computer or the use of a computer.’ Computerized, The American Heritage Dictionary of the English Language 380 (5th ed.2011). `Communication’ is defined as: `[t]he act of communicating; transmission’ `[t]he exchange of thoughts, messages, or information, as by speech, signals, writing, or behavior.’ Communication, The American Heritage Dictionary of the English Language 373 (5th ed.2011). `System’ is defined as: `A group of interacting, interrelated, or interdependent elements forming a complex whole.’ System, The American Heritage Dictionary of the English Language 1768 (5th ed.2011).

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. Using this definition, we turn to whether McKellips' use of his flip-style phone to exchange texts with C.H.’s cellphone satisfies the use of a `computerized communication system’ element of Wis. Stat. § 948.075(1r). 

There is no doubt that modern cellphones today are in fact computers.  See United States v. Flores–Lopez, 670 F.3d 803, 804–05 (U.S. Court of Appeals for the 7th Circuit 2012) (`a modern cell phone is a computer’). This is true because modern cellphones contain technology enabling them to perform functions that a traditional computer does, including accessing the internet, sending and receiving email, using social media, word processing, gaming, storing pictures, and connecting to a printer. McKellips does not contest this point. Rather, he contends that the flip-style cellphone involved here is not computerized because the text messages did not use the internet.

State v. McKellips, supra.

The explained that

[a]lthough the flip-style cellphone involved here may not be as advanced as some modern cellphones, McKellips' use of it satisfied the definition of computerized. The State's cellphone expert, Ryan Kaiser, provided uncontroverted testimony that the flip-style cellphone met the definition of computer. He also testified that the cellphone had logical functions including `computing the data you are typing into it’ and when you pushed buttons, information was sent through the device creating images on the screen. These functions satisfy the definition of `computerized.’ After all, this is one of the basic functions of a computer: pushing buttons on a keypad or keyboard that sends messages through the processor, which results in numbers, letters, and words appearing on a screen. Additionally, Kaiser testified that all cellphone carriers are connected to a server and use a computer system or network, particularly when sending text messages. Thus, the first part of `computerized communication system’ is met.

State v. McKellips, supra.

The opinion then notes that the

middle word in this term, communication, does not appear to be disputed. Certainly texts and picture messages constitute communication. Both involve an exchange of messages by writing or image to another person. McKellips admits that he communicated with C.H. via text messages. Although he denied asking for or downloading the picture messages C.H. sent, there is evidence in the record documenting such activity. In any event, McKellips admits exchanging texts with C.H.

The final word in the term, system, was also met because the cellphones used a system to complete the communication. Again, Kaiser explained that all cellphone carriers are connected to a server and use a computer system or computer network, especially when sending text messages. We conclude that McKellips' texts using his flip-style cellphone satisfied the use of a `computerized communication system’ element of Wis. Stat. § 948.075(1r). McKellips used his cellphone as a computer to send communications to the victim over the computer system used by their cellphones so that he could have sexual contact with her. Although case law on this issue is still developing, at least one appellate court has reached the same conclusion. See People v. Holmes, 101 A.D.3d 1632, 956 N.Y.S.2d 365, 367 (Appellate Division– Supreme Court of New York Fourth Division 2012) (sending telephone text messages is not simply the use of a telephone, `but rather a telephone [that is] inextricably linked to a sophisticated computerized communication system’).

State v. McKellips, supra.

The Supreme Court then explained that

[w]e reject McKellips' position that this statute requires use of the internet for conduct to satisfy `computerized communication system.’ Although using the internet to communicate with a person who the actor believes or has reason to believe is not 16 years old with the intent of having sexual contact or intercourse certainly violates this statute, neither the statute, nor the definition of computerized communication system requires the use of the internet. If the legislature had intended to limit this statute to conduct involving the internet, it certainly could have done so. See Heritage Farms, Inc. v. Markel Ins. Co., 316 Wis.2d 47, 762 N.W.2d 652 (where the legislature does not limit the application of a statute, we will not insert words into a statute to create such a result). By not specifically limiting this statute to internet uses, the legislature left open for prosecution the use of all computerized communication systems, including, as we have seen here, texts between cellphones.

State v. McKellips, supra.

The court therefore held that

the State satisfied its burden of proving the element, use of a `computerized communications system,’ because McKellips used his cellphone as a computer to send communications to the victim over the computer system used by their cellphones so that he could have sexual contact with her. We also hold that Wis. Stat. § 948.075 is not unconstitutionally vague because a person of ordinary intelligence would understand that using a cellphone to text or picture message with a child to entice sexual encounters violates the statute; moreover, the statute is capable of objective enforcement. Further, we hold that the jury instruction given here, although not perfect, when read as a whole accurately stated the law. 

State v. McKellips, supra.

The Supreme Court therefore reversed the decision of the Court of Appeals. State v. McKellips, supra. One of the Justices dissented from the majority opinion in a written opinion, and another Justice joined in her dissent. State v. McKellips, supra.