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.
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