State v. Rory A. McKellips , 369 Wis. 2d 437 ( 2016 )

2016 WI 51
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP827-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Rory A. McKellips,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 361 Wis. 2d 773, 864 N.W.2d 106)
(Ct. App. 2015 – Published)
PDC No: 2015 WI App 31
OPINION FILED: June 28, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 7, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Marathon
JUDGE: Michael Moran
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent
(Opinion filed).
NOT PARTICIPATING: PROSSER, J. did not participate.
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Katherine D. Lloyd, assistant attorney general, with
whom on the briefs was Brad D. Schimel, attorney general.
For the defendant-appellant, there was a brief by Scott A.
Swid, Benjamin J. Krautkramer, and Swid Law Offices, LLC,
Mosinee and oral argument by Scott A. Swid.
There was an amicus curiae brief by Robert R. Henak and
Henak Law Office, S.C., Milwaukee, on behalf of Wisconsin
Association of Criminal Defense Lawyers.
2016 WI 51
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP827-CR
(L.C. No. 2011CF645)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. JUN 28, 2016
Rory A. McKellips, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the court of appeals. Reversed.
¶1 REBECCA G. BRADLEY, J. The State appeals the court
of appeals published decision1 reversing Rory A. McKellips'
conviction after a jury found McKellips guilty of using a
computer to facilitate a child sex crime contrary to Wis. Stat.
1
See State v. McKellips, 2015 WI App 31, 361 Wis. 2d 773,
864 N.W.2d 106.
No. 2014AP827-CR
§ 948.075(1r) (2013-14).2 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.3 We also address whether
Wis. Stat. § 948.075 is unconstitutionally vague, whether the
jury instruction on this charge was erroneous, and if so,
whether this instruction was harmless, and whether the court of
appeals erred when it exercised its discretionary authority
under Wis. Stat. § 752.35 to reverse McKellips' conviction and
remand for a new trial.
¶2 We hold 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
2
The jury also convicted McKellips of restricting or
obstructing an officer, contrary to Wis. Stat. § 946.41(1), but
McKellips did not challenge that conviction in the court of
appeals and does not do so here. In addition, the jury
acquitted McKellips of repeated sexual assault of a child and
exposing genitals or pubic area, contrary to Wis. Stat.
§§ 948.025(1)(e), 939.50(3)(c), 948.10(1) and 939.50(3)(i). The
Honorable Michael K. Moran presided in the circuit court.
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
The communications started when the victim was fourteen
years old but continued after she turned fifteen years old.
2
No. 2014AP827-CR
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. Further, we hold
that the jury instruction given here, although not perfect, when
read as a whole, accurately stated the law. Even if the
instruction were erroneous, it was harmless error. Finally, we
hold that the court of appeals erred when it exercised its
discretionary authority under Wis. Stat. § 752.35 to reverse
McKellips' conviction. The real controversy was fully tried in
this case; moreover, discretionary reversals under § 752.35 are
limited to exceptional cases.
I. BACKGROUND
¶3 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.
¶4 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
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No. 2014AP827-CR
this and realized McKellips was not having the same type of
frequent contact with T.R.
¶5 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.4 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.
¶6 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.
¶7 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
4
C.H.'s parents were divorced and remarried. C.H. split
time equally between her mother's and father's homes.
4
No. 2014AP827-CR
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.
¶8 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.
¶9 Police searched McKellips' workplace to look for his
cellphone in the coal pit, but no phone was found. Three days
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No. 2014AP827-CR
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.
¶10 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.
¶11 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
6
No. 2014AP827-CR
season ended, the contacts with McKellips increased, and both of
her parents told her this 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.
¶12 C.H. described four incidents of sexual contact:
(1) June 2011. McKellips picked her up and took her
to his house where they were going to make pies
with his wife. McKellips' wife was not home and
the pies were already made. C.H. testified that
they sat on the couch in the living room where
they kissed on the lips, he touched her under her
clothes, and he pulled down his pants to expose
7
No. 2014AP827-CR
his erect penis. He put his hands on her head
and brought her mouth to his penis and fluids
came out of his penis. C.H. said this was her
first sexual experience ever. She also explained
that he touched the area where she had pubic hair
and put his mouth on the area where she urinates.
Afterwards, he drove her home and told her she
could not tell anyone. After this incident,
their cellphone contact increased to more than
once a day.
(2) July 2011. McKellips stopped by her mother's
home where C.H. was babysitting her one-year-old
brother who was asleep. McKellips kissed her on
the lips and slipped his hands into her pants
touching her buttocks but on top of her
underwear. McKellips also took her hand and
placed it over his pants on his erect penis.
(3) July 29, 2011. McKellips picked C.H. up and took
her to his house to help prepare for a fish fry
he was hosting. He said his sister would be
there helping but when they arrived at McKellips'
home, his sister was not there. C.H. and
McKellips were home alone and they sat on the
living room couch kissing. McKellips touched her
breasts under her shirt but over her bra, touched
her vaginal area with his hands and mouth, and
8
No. 2014AP827-CR
put her mouth on his erect penis until fluids
came out.
(4) August 2011. C.H.'s family was visiting her
grandmother who lived near McKellips' house.
C.H. convinced her mother to let her walk to his
home where again C.H. and McKellips were alone.
They sat on the living room couch kissing and
another incident of oral sex occurred.
¶13 C.H. testified that in June and July of 2011, at
McKellips' request, she sent him seven to ten picture messages
of her, three of which were of her in her bra and underwear.
After she sent the pictures, McKellips would tell her he liked
them. She also described what happened when her father found
the secret cellphone on September 5, 2011:
 She contacted McKellips to warn him that her father found
the secret cellphone;
 She sent McKellips texts from her iPod: "I just told
them the truth. Tht we hugged and a kiss on the cheek
nothing physical. And idk what's going to happen bu[t]
my parents said their not going to tell anyone just
probably talk to u." And, "Tht I was all just txtin and
we never did anything just txting and talk not actually
doing anything."
 On September 6, 2011, at school, she borrowed her cousin
A.B.'s cellphone to call McKellips and reassured him that
she did not disclose the sexual nature of their
relationship to her parents.
9
No. 2014AP827-CR
 That evening, she met with her mother, father,
stepmother, and stepfather and disclosed everything that
had happened between her and McKellips.
 On September 7, 2011, she reported this information to
the police and gave them her secret cellphone and her
iPod.
¶14 Other witnesses confirmed the details of C.H.'s
testimony. A.B. testified that C.H. borrowed A.B.'s cellphone
at school on September 6, 2011, called McKellips, and talked for
2.5 minutes. T.R., the other freshman selected for the 2010-11
varsity basketball team, testified that she did not receive
frequent phone calls from McKellips and the ten to fifteen calls
she did receive during the basketball season all pertained to
basketball. Both girls testified they know C.H. to be a
truthful person.
¶15 Guy Otte, the activities director at Mosinee High
School, where McKellips previously coached varsity girls
basketball, testified that he met with McKellips two times
during McKellips' years at Mosinee to discuss the importance of
maintaining proper boundaries with players and stressed that
coaches should not give gifts to student athletes. Brad Tipple,
C.H.'s AAU coach, also testified. He talked about how talented
and hard-working C.H. was as a player. He saw no evidence that
C.H. was depressed. As a coach, he does not have much contact
with players outside of practice and games.
¶16 Danielle Diedrich, a teacher at Athens High School,
testified that she coached the junior varsity girls basketball
10
No. 2014AP827-CR
team and assisted McKellips with the varsity team during the
2010-11 season. She told the jury C.H. was a great athlete who
worked hard 100 percent of the time and did not have any mental
health problems. She thought it was odd that McKellips kept
calling C.H. at the AAU Minnesota tournament when he knew that
Diedrich, his assistant coach, was at the same tournament. She
also testified that she ran into McKellips at the Best Buy in
Wausau when he bought what turned out to be the secret cellphone
for C.H.
¶17 C.H.'s father T.H., her mother J.B., and C.H.'s
stepfather testified next. T.H. testified:
 He caught C.H. talking to McKellips and warned her to
stop as it could lead to problems.
 He found the secret cellphone, questioned his daughter
and explained how upset she was——initially only admitting
that McKellips had hugged her, kissed her on the cheek,
and had exchanged text messages with her.
 C.H. eventually disclosed everything that happened and
was very upset and did not want her parents and
stepparents to tell anyone or call the police.
 C.H. was generally a truthful person.
¶18 J.B. testified:
 McKellips would call her home phone during the basketball
season to talk about basketball games or how C.H. played.
 He gave the family gifts including Packers' jerseys for
the whole family, a Buddha doll, and vegetables or fish.
11
No. 2014AP827-CR
 She was upset when she learned McKellips was talking to
C.H. on her cellphone after school basketball season
ended and told C.H. to tell him to use the home phone.
 She thought McKellips acted oddly when he met them at a
restaurant in Wausau after C.H.'s sectional softball
game.
 She confirmed that C.H. went to McKellips' home in June
2011 to make pies, that C.H. went to McKellips' home on
July 29, 2011 to help prepare fish, and again in August
when they were at the grandmother's house near where
McKellips lived.
 On the day the secret cellphone was discovered, J.B.'s
phone records showed that McKellips called her multiple
times and when she finally talked to him that day, J.B.
did not disclose to McKellips that the secret cellphone
had been found; McKellips told J.B. he was trying to
reach her because he had an extra ticket for a Brewers
game.
 C.H. is generally a truthful person and although she was
sad about hurting her knee, she was not depressed.
¶19 C.H.'s stepfather testified about how much C.H. loved
basketball, what happened when the secret cellphone was
discovered, and how difficult it was to hear C.H. disclose what
happened with McKellips. He also described McKellips' unusual
behavior at the Wausau restaurant.
¶20 Steve Cotey and Robert Fochs both worked as
supervisors at Wausau Paper. Cotey testified that on September
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No. 2014AP827-CR
9, 2011, the front office called and said the police were there
asking to speak with McKellips. When Cotey told McKellips a
police officer was asking to speak with McKellips, McKellips did
not seem surprised. Fochs told the jury about the Mosinee Chief
of Police Kenneth Muelling asking for his help to search for
McKellips' cellphone, which McKellips claimed he dropped in a
coal pit. After searching McKellips' work area, personal locker
and truck, no phone was located. Muelling's testimony confirmed
the search with Fochs.
¶21 Theresa Steiber testified that she was friends with
McKellips' 33-year-old daughter, B.B., and that McKellips
coached their basketball team in 7th and 8th grade as well as
high school. Steiber told the jury that as a 7th and 8th
grader, McKellips made her feel uncomfortable because he
expressed his love for her in letters, gave her jewelry and a
Bulls jacket, held her hand, rubbed her leg, and gave her back
rubs. McKellips would say things to her like "if only he was 30
years younger," and she tried to avoid him because of this
conduct. Steiber testified that McKellips' behavior stopped
when she started high school.
¶22 Ryan Kaiser testified for the State as a cellphone
expert witness. He told the jury:
 The Mosinee police asked him to examine the flip-style
cellphone involved in this case.
 This type of phone had logical functions including
"computing the data you are typing into it" and that it
13
No. 2014AP827-CR
had predictive texting, which puts the words on the
screen before the user is done typing them.
 This phone had memory, took and saved pictures and
videos, and had some internet capabilities.
 There are internal impulses in the phone that made the
device function; when the user pushed buttons,
information was sent through the device creating images
on the screen.
 All cellphone carriers are connected to a server and use
a computer system or computer network especially when
sending text messages.
¶23 The State's last two witnesses were Athens Chief of
Police Aaron Stencil and City of Mosinee Police Officer Matt
Wehn. Stencil testified about taking C.H.'s statement on
September 7, 2011 and described how C.H. was crying and upset.
Wehn testified that:
 He gathered all the cellphone records in this case and
created an exhibit documenting the phone numbers and
contacts between the various phones.
 Between December 18, 2010 and July 27, 2011, there were
8,324 contacts between McKellips' cellphone and C.H.'s
regular cellphone. McKellips received 4,816 text
messages and sent 3,184.
 Between June 10, 2011 and July 27, 2011, there were 2,426
total contacts between McKellips' cellphone and C.H.'s
secret cellphone.
14
No. 2014AP827-CR
 McKellips activated a new cellphone on July 30, 2011 and
the first phone call he made was to C.H.'s secret
cellphone. Using the new phone, between July 30, 2011
and September 5, 2011, McKellips sent 77 texts to C.H.'s
secret cellphone and received 191 texts. McKellips'
phone used 4,224 minutes during that time.
 McKellips' cellphone received ten multimedia messages
from C.H.'s secret cellphone. Multimedia messages "would
be anything from video to pictures to a voice file, an
electronic file, as opposed to just the written word."
¶24 Wehn also told the jury that as a part of his
investigation, on September 9, 2011, he went to Wausau Paper to
talk to McKellips. When he arrived, McKellips told him he had
dropped his cellphone in the coal pit. Wehn learned McKellips
had not really dropped his cellphone in the coal pit, but hid it
because he did not want to turn it over to police. Wehn took
McKellips into the police station for questioning. The audio
recordings of McKellips' statements were played for the jury.
¶25 In May 2012, Wehn collected McKellips' cellphone from
his attorney and it was in good condition, but there were no
messages from or to C.H. on the cellphone. Wehn also testified
about the last contacts on C.H.'s regular cellphone to
McKellips' cellphone the night of September 5, 2011: one text
at 7:01 p.m. and two incoming calls from McKellips, one of which
was answered at 7:05 p.m.
¶26 The defense called four witnesses. McKellips'
daughter B.B. testified that she does not remember her father
15
No. 2014AP827-CR
acting inappropriately toward her friend, Theresa Steiber, and
that she bought the Bulls jacket for Steiber. C.S., McKellips'
sister, testified that on the fish-fry night, McKellips and C.H.
were never alone in the house or his truck. Connie McKellips,
McKellips' wife, testified that they treated C.H. like their own
daughter, C.H. liked spending time with them because her parents
were fighting, they helped C.H. with her depression, and C.H.
was never alone in their home with McKellips. The last defense
witness was McKellips. He testified:
 He never had any sexual contact with C.H. and they were
never alone inside his home.
 He did give C.H. a hug and kiss on the cheek after she
was injured.
 He regularly called his players "baby doll" and said "I
love you" to all of them.
 He bought the secret cellphone for C.H. to help her
because she was depressed and suicidal; C.H. asked for
the phone.
 He never downloaded any pictures from C.H. as he did not
know how to do so.
 He admitted lying to the police about dropping his
cellphone in the coal pit; he lied because he believed
C.H.'s iPod text on his cellphone would help him and he
did not want it to get erased.
 He never touched C.H. at her mother's house.
 He talked to C.H. a lot because she was "needy."
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No. 2014AP827-CR
 He admitted C.H.'s parents did not know about the secret
cellphone.
¶27 After closing arguments, the trial court instructed
the jury. It gave the standard jury instruction on "use of a
computer to facilitate a child sex crime," as well as a
supplemental instruction and definition of computer:
The third count of the information charges that
the defendant, Rory McKellips, on or about May 1st,
2011, to August 31st of 2011, in the City of Mosinee,
Marathon County, Wisconsin, did use a computerized
communication system to communicate with an individual
who the actor believed, or had reason to believe, had
not attained the age of 16 years, with intent to have
sexual contact with the individual, or sexual
intercourse with the individual.
To this charge, the defendant has also entered a
plea [of] not guilty, which means the state must prove
every element of the offense charged beyond a
reasonable doubt.
Section 948.075 is violated by a person who uses
a computerized communication system to communicate
with an individual who the person 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. Before you may find
the defendant guilty of this offense, the state must
prove by evidence which satisfies you beyond a
reasonable doubt that the following [four] elements
were present.
Number one. That the defendant used a
computerized communication system to communicate with
an individual.
Number two. That the defendant believed or had
reason to believe that the individual was under the
age of 16 years.
Number three. That the defendant used a
computerized communication system to communicate with
17
No. 2014AP827-CR
the individual with intent to have sexual contact with
the individual.
Number four. That the defendant did an act in
addition to using a computerized communication system
to carry out the intent to have sexual contact.
[Evidence has been received that the defendant
communicated with a child under the age of 16 via a
mobile or cellphone. You must determine whether the
phone described in the evidence constitutes a
computerized communication system.
To aid you in that determination, you are
instructed that under Wisconsin law, a computer is
defined as -- computer is defined as computer, which
means 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. Computer system is defined as a set of
related computer equipment, hardware, or software.]
Sexual contact is an intentional touching of an
intimate part of C.[]H. by the defendant. The
touching may be of an intimate part directly, or it
may be through the clothing. The touching may be done
by any body part or by any object, but it must be an
intentional touching. Sexual contact also requires
that the defendant acted with intent to become
sexually aroused or gratified.
You cannot look into a person's mind to find
intent and belief. Intent and belief must be found,
if found at all, from the defendant's acts, words, and
statements, if any, and from all the facts and
circumstances in this case bearing upon intent and
belief.
If you are so satisfied beyond a reasonable doubt
that all [four] elements of this offense have been
proven, you should find the defendant guilty. If you
are not so satisfied, you must find the defendant not
guilty.
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No. 2014AP827-CR
Wis JI——Criminal 2135 (Apr. 2013)(emphases added; third set of
brackets contains supplemental instruction).
¶28 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. McKellips appealed the conviction to
the court of appeals, arguing (1) he did not violate Wis. Stat.
§ 948.075 because his cellphone did not use the internet; (2)
§ 948.075 is unconstitutional; and (3) the circuit court
erroneously exercised its discretion when it admitted other acts
evidence. The court of appeals did not decide these issues.
Instead, it sua sponte 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.
II. STANDARD OF REVIEW
19
No. 2014AP827-CR
¶29 This case involves the interpretation and application
of Wis. Stat. § 948.075, which is a question of law that we
review independently. See Shannon E.T. v. Alicia M. V.M., 2007
WI 29, ¶31, 299 Wis. 2d 601, 728 N.W.2d 636. Our standards for
interpreting statutes are well-known and need not be repeated
here. See State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶¶44-52, 271 Wis. 2d 633, 681 N.W.2d 110. This case
also involves a constitutional challenge to § 948.075, which
likewise presents a question of law requiring our independent
review. See Aicher v. Wis. Patients Comp. Fund, 2000 WI 98,
¶18, 237 Wis. 2d 99, 613 N.W.2d 849. "Statutes are
presumptively constitutional. The court indulges every
presumption to sustain the law if at all possible, and if any
doubt exists about a statute's constitutionality, we must
resolve that doubt in favor of constitutionality." Id., ¶18
(internal citation omitted).
¶30 In addition, this case involves our review of the jury
instruction on the Wis. Stat. § 948.075 charge. Although a
circuit court has broad discretion when instructing a jury, we
review independently whether the instructions given accurately
stated the law. See State v. Beamon, 2013 WI 47, ¶18, 347
Wis. 2d 559, 830 N.W.2d 681. If the jury instructions did not
accurately state the law, then the circuit court erroneously
exercised its discretion. State v. Ferguson, 2009 WI 50, ¶9,
317 Wis. 2d 586, 767 N.W.2d 187. We, however, do not review a
particular instruction in isolation; instead, we analyze the
instructions as a whole to determine their accuracy, viewing
20
No. 2014AP827-CR
them in the context of the overall charge. See State v. Pettit,
171 Wis. 2d 627, 637, 492 N.W.2d 633 (Ct. App. 1992). Finally,
we review the court of appeals' exercise of its discretionary
authority under Wis. Stat. § 752.35, which requires us to
determine whether the court of appeals erroneously exercised its
discretion in granting McKellips a new trial in the interest of
justice. See State v. Johnson, 149 Wis. 2d 418, 428-29, 439
N.W.2d 122 (1989), confirmed on reconsideration, 153 Wis. 2d
121, 449 N.W.2d 845 (1990). "Reversals in the interest of
justice should be granted only in exceptional cases." State v.
Kucharski, 2015 WI 64, ¶23, 363 Wis. 2d 658, 866 N.W.2d 697
(emphasis added).
III. ANALYSIS
A. Application of computerized communication system
¶31 The main dispute is whether an exchange of texts and
picture messages between flip-style cellphones constitutes use
of a "computerized communication system" in Wis. 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.
¶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.
21
No. 2014AP827-CR
(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. 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. 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.
¶33 "Computerized" is defined as: "[o]f or relating to a
computer or the use of a computer." Computerized, The American
22
No. 2014AP827-CR
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).
¶34 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
23
No. 2014AP827-CR
cellphone satisfies the use of a "computerized communication
system" element of Wis. Stat. § 948.075(1r).5
¶35 There is no doubt that modern cellphones today are in
fact computers. See United States v. Flores-Lopez, 670 F.3d
803, 804-05 (7th Cir. 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
5
The court of appeals, in attempting to define
"computerized communication system" discusses Wis. Stat.
§ 948.0125 and § 48.825, which are the two other statutes where
that term appears. See McKellips, 361 Wis. 2d 773, ¶¶11-16.
Although neither statute gives a definition of the term, some
examples of a computerized communication system are provided:
Section 948.0125 uses the term 13 times. Twelve times it refers
to "messages sent 'on an electronic mail or other computerized
communication system.'" McKellips, 361 Wis. 2d 773, ¶13 (citing
§ 947.0125(2)(a)-(f), (3)(a)-(f)). The thirteenth time "refers
to messages sent 'from any computer terminal or other device
that is used to send messages on an electronic mail or other
computerized communication system.'" McKellips, 361 Wis. 2d
773, ¶13 (citing § 947.0125(3)(g)). Section 48.825 refers to
communications 'by any computerized communication system,
including by electronic mail, Internet site, Internet account,
or any similar medium of communication provided via the
Internet.'" McKellips, 361 Wis. 2d 773, ¶15. None of the
examples in these statutes alters our conclusion that the
cellphone here was used as a computer to communicate through a
computerized cellular phone system in violation of Wis. Stat.
§ 948.075. Rather, these statutes support our conclusion that
the legislature included the term "computerized communication
system" to cover situations beyond the internet or email.
24
No. 2014AP827-CR
cellphone involved here is not computerized because the text
messages did not use the internet.
¶36 Although 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.
¶37 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.
25
No. 2014AP827-CR
¶38 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, 956 N.Y.S.2d
365, 367 (N.Y. App. Div. 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").
¶39 We 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
26
No. 2014AP827-CR
statute,6 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., 2009 WI 27, ¶¶14-15,
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.
B. Constitutionality of Wis. Stat. § 948.075
¶40 McKellips next argues that Wis. Stat. § 948.075 is
unconstitutionally vague. His argument is not well-developed
and is unconvincing.
¶41 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. See State v. Pittman, 174 Wis. 2d
255, 276, 496 N.W.2d 74 (1993). The law does not require "'the
line between lawful and unlawful conduct be drawn with absolute
clarity and precision.'" State v. Colton M., 2015 WI App 94,
6
See State v. Olson, 2008 WI App 171, ¶1, 314 Wis. 2d 630,
762 N.W.2d 393 (defendant use of online chat room); State v.
Schulpius, 2006 WI App 263, ¶2, 298 Wis. 2d 155, 726 N.W.2d 706
(defendant had computer conversations over the internet).
27
No. 2014AP827-CR
¶7, 366 Wis. 2d 119, 875 N.W.2d 642 (citation omitted). "[A]
statute need not be so specific as to delineate each and every
mode of conduct embraced by its terms[.]" State v. Killory, 73
Wis. 2d 400, 405-06, 243 N.W.2d 475 (1976). "'A fair degree of
definiteness is all that is required.'" Colton M., 366 Wis. 2d
119, ¶7 (citation omitted). We presume statutes are
constitutional, look for reasons to uphold the constitutionality
of a statute, and place the burden on the defendant to prove
beyond a reasonable doubt that a statute is unconstitutional.
See Aicher, 237 Wis. 2d 99, ¶¶18-19.
¶42 McKellips has not satisfied this burden.
"Computerized communication system" is sufficiently definite in
meaning based on each word's common usage and ordinary
understanding to satisfy fair notice requirements. See Killory,
73 Wis. 2d at 407. A person of ordinary intelligence need not
guess at what this term means, but instead needs to simply
consider the common meaning of each word in the term. Such
consideration provides fair notice that using a cellphone to
text a child in order to entice a sexual relationship violates
the statute. McKellips' argument that the term does not give
fair notice because he really did not have the intent required
by the statute is not a constitutional argument, but a
sufficiency of the evidence argument——an argument that was
rejected by a jury that listened to all the testimony and
considered all the evidence.
¶43 McKellips also argues that the statute is so vague it
could result in prosecutions of innocent people who are using
28
No. 2014AP827-CR
cellphones in everyday life and extend beyond the use of
cellphones entirely to encompass mailing letters through the
post office. McKellips' argument is meritless. The statute
clearly does not criminalize ordinary use of a cellphone. In
addition to the use of a computerized communication system
discussed in this opinion, conviction under Wis. Stat. § 948.075
also requires proof of the actor's "intent to have sexual
contact or sexual intercourse" and "[p]roof 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) . . . to prove that intent." See § 948.075(1r),
(3). 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 cellphone to send text messages to lure a
child into sexual activity is against the law.
¶44 Our legislature, for good reason, has taken a strong
stance in favor of protecting children from sex crimes. See
Wis. Stat. ch. 948 (Crimes against children). "The state has
the right to enact reasonable legislation to protect the safety
and well-being of minors." Killory, 73 Wis. 2d at 407. Mindful
of the need to protect children in a world of exponential
technological advancement, the legislature chose an expansive
term——"computerized communication system"——to protect children
from falling prey to criminals taking advantage of rapidly
changing technology before new laws can be passed. The
legislature employed a term that would provide fair notice, but
also encompasses future technologies. It selected "computerized
29
No. 2014AP827-CR
communication system," which as explained here, is readily
understandable by a person of ordinary intelligence. Because
this term satisfies the fair notice aspect of the test it does
not render Wis. Stat. § 948.075 unconstitutionally vague on that
basis.
¶45 McKellips also fails to convince us that the statute
does not provide an objective standard of enforcement. The
standard of enforcement within the plain language of the statute
clearly states the elements required to prove the crime.
McKellips makes much ado about the term "computerized
communication system" not being capable of objective enforcement
because it is not defined. The absence of a definition does not
make the statute incapable of objective enforcement. As already
explained, the term "computerized communication system" is
readily understandable. A search of our case law revealed ten
other cases (besides McKellips') involving "computerized
communication system"——none of which had any problems
understanding or applying that term. See, e.g. State v. Olson,
2008 WI App 171, ¶1, 314 Wis. 2d 630, 762 N.W.2d 393; State v.
Schulpius, 2006 WI App 263, ¶2, 298 Wis. 2d 155, 726 N.W.2d 706.
The court of appeals' opinion in this case appears to stand
alone as the only court that struggled with this terminology,
likely because this case involved text messages between flip-
style cellphones rather than the internet or email. As we have
explained, the text messages satisfied the element "use[ of] a
computerized communication system." This terminology provides a
clear and objective standard for enforcement. Anyone who (1)
30
No. 2014AP827-CR
uses a computerized communication system for purposes of text
messaging between cellphones to communicate with "an individual
who the actor believes or has reason to believe" is not yet 16
years old and "with intent to have sexual contact or sexual
intercourse" and (2) commits "an act, other than use of a
computerized communication system . . . to effect the actor's
intent," can be prosecuted under this statute. McKellips has
not proven beyond a reasonable doubt that Wis. Stat. § 948.075
is unconstitutionally vague. We reject his constitutional
challenge.
C. Jury Instruction
¶46 McKellips next argues the jury instruction on Wis.
Stat. § 948.075(1r), which asked the jury to determine whether
his cellphone itself was a computerized communication system was
misleading and not harmless. We do not agree.
¶47 The State points out that McKellips did not object to
these instructions at trial or in his appeal to the court of
appeals. Rather, the jury instruction issue was raised sua
sponte by the court of appeals. Failure to contemporaneously
object to jury instructions results in forfeiting review of the
jury instructions. State v. Cockrell, 2007 WI App 217, ¶36, 306
Wis. 2d 52, 741 N.W.2d 267. Wisconsin Stat. § 805.13(3) governs
jury instructions and requires contemporaneous objections be
made in the circuit court. The purpose of the rule is to give
the opposing party and the circuit court an opportunity to
correct any error. Cockrell, 306 Wis. 2d 52, ¶36. This also
helps preserve jury verdicts and conserve judicial resources.
31
No. 2014AP827-CR
Despite McKellips' forfeiture, however, we choose to address
this because the court of appeals based its entire reversal
decision on the jury instruction, which prompted us to ask for
briefing on the issue. See McKellips, 361 Wis. 2d 773, ¶¶20-21;
see also D.L. Anderson's Lakeside Leisure Co., Inc. v. Anderson,
2008 WI 126, ¶41, 314 Wis. 2d 560, 757 N.W.2d 803 (we may
address a forfeited issue at our discretion when we deem it
important).
¶48 McKellips concedes that Wis. JI—Criminal 2135 is an
accurate statement of the law7 but objects to the extra
instructions the circuit court tacked on to the end of Wis JI-
Criminal 2135 telling the jury it "must determine whether the
phone described in the evidence constitutes a computerized
communication system" and then instructing it on the definition
of computer.
¶49 We agree with McKellips that the circuit court's
instruction advising the jury it must determine whether the
phone itself constituted a computerized communication system
could have been more precisely worded. The jury could have been
instructed to find whether the phone is a computerized device
7
We acknowledge the amicus brief filed on behalf of the
Wisconsin Association of Criminal Defense Lawyers (WACDL)
alerting us to a potential flaw in Wis. JI-Criminal 2135. It
points out that the instruction's omission of the qualifying "in
violation of s. 948.02(1) or (2)," could create an issue when
the person being communicated with is an adult posing as a
child. Our analysis in this case does not impact this issue and
therefore we do not address it. We encourage WACDL to raise
this issue with the Criminal Jury Instructions Committee.
32
No. 2014AP827-CR
that was used to communicate through a computerized cellphone
network or system to entice the sexual contact with C.H. We do
not agree, however, that the circuit court's phrasing rendered
the jury instructions as a whole erroneous. As noted, the
circuit court correctly stated the four elements of the crime
and informed the jury it must find each element beyond a
reasonable doubt. This included instructing the jury repeatedly
it must find that McKellips "used" a computerized communication
system. See supra ¶27. In addition, the definition of computer
given in the instruction was an accurate statement of the law
and undoubtedly led the jury to conclude the cellphone was the
computer McKellips used to communicate through the system. The
jury's finding that McKellips used his cellphone to communicate
with C.H. necessarily means that his cellphone was used to
access the system. Obviously, his cellphone was not the system
itself——rather, the cellphone and the system were connected
together because the communications from his cellphone to C.H.'s
cellphone could not have occurred without the use of the system.
Under these circumstances, we are not convinced that this
isolated wording in the extra instruction rendered the jury
instructions as a whole inaccurate.
¶50 Because the jury instructions accurately stated the
law, they were not erroneous. Even if this court were to
conclude the extra instruction were erroneous, reversal is not
warranted because the extra instruction was not prejudicial.
"An error is prejudicial if it probably [and not merely
possibly] misled the jury." Kochanski v. Speedway SuperAmerica,
33
No. 2014AP827-CR
LLC, 2014 WI 72, ¶11, 356 Wis. 2d 1, 850 N.W.2d 160 (citation
omitted). Jury instruction error is harmless when it did not
contribute to the verdict. See State v. Harvey, 2002 WI 93,
¶48, 254 Wis. 2d 442, 647 N.W.2d 189. Any error here did not
probably mislead the jury and the verdict would not have changed
if the extra instruction had been re-worded. The elements of
the crime were clearly stated and the evidence in the record
sufficiently supported each element. Cellphone expert Kaiser's
testimony was uncontroverted that the cellphone was a computer
and that the exchange of text messages used a computerized
system to complete the communication. Thus, the circuit court's
phrasing in the extra instruction, if erroneous at all, was
harmless error.
D. Wisconsin Stat. § 752.35
¶51 The last issue we address is whether the court of
appeals erred in exercising its discretionary reversal authority
under Wis. Stat. § 752.35, when it determined the interest of
justice required a new trial on the ground that the real
controversy was not fully tried. We have already concluded that
the wording used in the extra jury instruction did not result in
reversible error. Because this was the sole basis for the court
of appeals' discretionary reversal, we must conclude it erred.
The real controversy in this case with respect to Wis. Stat.
§ 948.075(1r) was whether McKellips used a computerized
communication system with the intent to have sexual contact with
C.H. As seen from the detailed facts set forth in part I., that
34
No. 2014AP827-CR
issue was fully tried and thus, justice requires that the jury
verdict stand.
¶52 We make one final point with respect to Wis. Stat.
§ 752.35. We have consistently held that the discretionary
reversal statute should be used only in exceptional cases. See
Kucharski, 363 Wis. 2d 658, ¶¶23, 41; State v. Avery, 2013 WI
13, ¶38, 345 Wis. 2d 407, 826 N.W.2d 60; Vollmer v. Luety, 156
Wis. 2d 1, 11, 456 N.W.2d 797 (1990). In Kucharski, we
emphasized that it is error to jump to § 752.35 as a shortcut.
"In an exceptional case, after all other claims are weighed and
determined to be unsuccessful, a reviewing court may determine
that reversal is nevertheless appropriate under Wis. Stat.
§ 752.35." Kucharski, 363 Wis. 2d 658, ¶43 (emphasis added).
In exercising discretionary reversal, the court of appeals must
engage in "an analysis setting forth the reasons" that the case
may be characterized as exceptional. Id., ¶42. Here, the court
of appeals did not decide the issues McKellips raised, and took
a shortcut directly to § 752.35. McKellips did not ask the
court of appeals to reverse on the basis of § 752.35. Moreover,
the court of appeals exercised discretionary reversal authority
without even analyzing the exceptional standard. For these
reasons, we conclude the court of appeals erred in reversing
McKellips' conviction and ordering a new trial under § 752.35.
IV. CONCLUSION
¶53 We hold 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
35
No. 2014AP827-CR
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. Even if the extra
instruction were erroneous, it was harmless error. Finally, we
hold that the court of appeals erred when it exercised its
discretionary authority under Wis. Stat. § 752.35 to reverse
McKellips' conviction. The real controversy was tried in this
case; moreover, discretionary reversals under § 752.35 are
limited to exceptional cases, and the court of appeals failed to
analyze that criterion before reversing under § 752.35.
By the Court.—The decision of the court of appeals is
reversed.8
¶54 DAVID T. PROSSER, J., did not participate.
8
McKellips filed a document labeled as a petition for
review of the denial of bail, while this case was pending,
seeking release on cash bond based on the court of appeals'
decision reversing his conviction and ordering a new trial.
Because we have reversed the court of appeals, we are denying
his request labeled as a petition for review on the bail matter
in a separate order being issued today.
36
No. 2014AP827-CR.ssa
¶55 SHIRLEY S. ABRAHAMSON, J. (dissenting). The instant
case concerns the interpretation of the phrase "computerized
communication system" in Wis. Stat. § 948.075(1r) (2013-14)1 and
its application to Rory McKellips' exchange of phone calls,
voicemails, and text messages with a minor, C.H.
¶56 McKellips was charged with repeated sexual assault of
a child, exposing genitals or pubic area, obstructing an
officer, and use of a "computerized communication system" to
facilitate a child sex crime.
¶57 The jury acquitted McKellips of the sexual assault and
exposure counts.2 Even though the jury did not find McKellips
guilty of a child sex crime, the jury found McKellips guilty of
using a "computerized communication system" to facilitate a
child sex crime. McKellips challenges this conviction in the
instant case.3
1
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
2
Although McKellips was acquitted of these counts, and the
alleged assaults and exposure are largely irrelevant to the
issues in the instant case, the majority opinion recounts these
allegations and the associated trial testimony in superfluously
graphic detail. The sexual conduct alleged by C.H. is
reprehensible. If the court were called upon to condemn such
conduct, there would be immediate and unanimous condemnation.
Our task, however, is not to determine whether McKellips
deserves to be punished for this alleged conduct. Rather, we
are called upon to analyze and apply a statute relating to use
of a computerized communication system.
3
The jury found McKellips guilty of obstructing an officer.
This conviction is not being challenged.
1
No. 2014AP827-CR.ssa
¶58 The statute defining this crime, Wis. Stat. § 948.075,
provides (in relevant part) as follows:
(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.
. . . .
(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.
¶59 The phrase "computerized communication system" is not
defined in this statute or in any other statute. I disagree
with the majority's interpretation of this phrase.
¶60 I address two issues raised by McKellips:
I. He argues that Wis. Stat. § 948.075 is
unconstitutionally vague because it does not provide
fair warning of the conduct it prohibits or provide
objective standards for the statute's enforcement.
In other words, he asserts that the statute is void
for vagueness. See State v. Popanz, 112
Wis. 2d 166, 172, 332 N.W.2d 750 (1983); see also
Johnson v. United States, 135 S. Ct. 2551, 2556
(2015). I conclude that § 948.075 does not pass
muster under this test in two respects:
A. The ambiguity of the phrase "computerized
communication system," the minimal guidance
provided by the statutes, and the need for
expert testimony regarding the functioning of
2
No. 2014AP827-CR.ssa
various communication systems demonstrate that
Wis. Stat. § 948.075 does not provide fair
warning of what is prohibited to persons of
ordinary intelligence.
B. The jury instruction regarding "computerized
communication system" misstated the law. The
erroneous instruction demonstrates that Wis.
Stat. § 948.075 lacks objective enforcement
standards.
II. After this court granted review in the instant
case, McKellips requested (in a filing he
characterized as either a petition for review or a
motion) that this court release him from
incarceration pending this review of the court of
appeals' ruling in his favor. The issue of his
release from incarceration is now moot given today's
decision of this court. The issues McKellips
raises, however, merit review.
The majority opinion (at n.8) denies the petition
for review (or motion) in a footnote and a separate
order. Neither provides any explanation. Although
this issue is moot, I would have had the court
address it.
¶61 Accordingly, I would affirm the decision of the court
of appeals reversing the judgment of conviction, although on
different grounds than those relied upon by the court of
appeals.
3
No. 2014AP827-CR.ssa
¶62 Therefore, I dissent and write separately.
I
¶63 The majority opinion concludes that Wis. Stat.
§ 948.075 is not void for vagueness because the phrase
"computerized communication system" is "readily understandable
by a person of ordinary intelligence" and "capable of objective
enforcement."4
¶64 General principles underlying the void for vagueness
doctrine put the instant case into legal focus.
¶65 The United States Supreme Court has explained the
doctrine as follows: "The prohibition on vagueness in criminal
statutes 'is a well-recognized requirement, consonant alike with
ordinary notions of fair play and the settled rules of law,' and
a statute that flouts it 'violates the first essential of due
process.'"5
¶66 The Court has further stated: "No one may be required
at peril of life, liberty or property to speculate as to the
meaning of penal statutes. All are entitled to be informed as
to what the State commands or forbids."6
4
See majority op., ¶¶44-45.
5
Johnson v. United States, 135 S. Ct. 2551, 2557 (2015)
(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391
(1926)).
6
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
4
No. 2014AP827-CR.ssa
¶67 Although "[t]here is no simple litmus-paper test to
determine whether a criminal statute is void for vagueness,"7 a
statute may be void for vagueness if it does not (1) "give a
person of ordinary intelligence who seeks to avoid its penalties
fair notice of conduct required or prohibited";8 or (2) "provide
standards for those who enforce the laws and those who
adjudicate guilt."9
7
State v. Popanz, 112 Wis. 2d 166, 172, 332 N.W.2d 750
(1983); see also 1 Wayne R. LaFave, Substantive Criminal Law,
§ 2.3(a), at 146 (2003) ("[T]here is no simple litmus-paper test
for determining whether a criminal statute is void for
vagueness.").
8
Popanz, 112 Wis. 2d at 173; see also Johnson, 135 S. Ct.
at 2556; Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)
("Vague laws may trap the innocent by not providing fair
warning.").
9
See Popanz, 112 Wis. 2d at 173 ("A statute should be
sufficiently definite to allow law enforcement officers, judges,
and juries to apply the terms of the law objectively to a
defendant's conduct in order to determine guilt without having
to create or apply their own standards.") (citing State v.
Courtney, 74 Wis. 2d 705, 711, 247 N.W.2d 714 (1976)); see also
Johnson, 135 S. Ct. at 2556 (stating that due process is
violated when the government "tak[es] away someone's life,
liberty, or property under a criminal law so vague that it fails
to give ordinary people fair notice of the conduct it punishes,
or so standardless that it invites arbitrary enforcement.")
(citing Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)). In
addition to these two principles, Professor LaFave identifies a
third principle not at issue in the instant case: Whether the
law provides sufficient space for the exercise of First
Amendment rights. See 1 LaFave, supra note 7, § 2.3(a), at 146.
This court has recognized this limitation on vague criminal laws
as well. See City of Madison v. Baumann, 162 Wis. 2d 660, 672-
74, 470 N.W.2d 296 (1991) (stating, in a vagueness challenge to
a noise ordinance on First Amendment grounds, that "we look to
the face of the ordinance to guard against the possibility that
a vague prohibition may deter or give pause to socially
desirable conduct or expression").
(continued)
5
No. 2014AP827-CR.ssa
¶68 This latter prong has been characterized as "the more
important aspect of [the] vagueness doctrine,"10 and is
implicated when, among other things, "the law [is] so unclear
that a trial court cannot properly instruct the jury."11
¶69 The United States Supreme Court summarized the
rationale of the void for vagueness doctrine in Grayned v. City
of Rockford, 408 U.S. 104, 108-09 (1972):
Vague laws offend several important values. First,
because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give
the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may
act accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws
For further discussions of the void for vagueness doctrine,
see, for example, 1 LaFave, supra note 7, § 2.3(a)-(d), at 144-
53; 1A Sutherland Statutory Construction § 21:16, at 197-241
(Norman J. Singer & J.D. Shambie Singer eds., 7th ed. 2009);
Ryan McCarl, Incoherent and Indefensible: An Interdisciplinary
Critique of the Supreme Court's "Void-For-Vagueness" Doctrine,
42 Hastings Const. L.Q. 73, 74 (2014) (critiquing the void for
vagueness doctrine as "a confusing conceptual thicket."); Orin
S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse
Act, 94 Minn. L. Rev. 1561, 1562, 1571-75 (2010) (describing the
void for vagueness doctrine in general and noting that the
Computer Fraud and Abuse Act "has become so broad, and computers
so common, that expansive or uncertain interpretations" of
certain statutory language "will render it unconstitutional.");
John F. Decker, Addressing Vagueness, Ambiguity, and Other
Uncertainty in American Criminal Laws, 80 Denv. U. L. Rev. 241,
248-60 (2002) (sketching the contours of the two principles of
the void for vagueness doctrine).
10
Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting
Smith v. Goguen, 415 U.S. 566, 575 (1974)) (internal alteration
omitted).
11
1 LaFave, supra note 7, § 2.3(c), at 150-51; see also
Popanz, 112 Wis. 2d at 173.
6
No. 2014AP827-CR.ssa
must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic
policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory
applications (footnotes omitted).
¶70 These important values are implicated in the instant
case.
¶71 Without further legislative elucidation, the phrase
"computerized communication system" in Wis. Stat. § 948.075 does
not provide fair notice of the conduct it prohibits. 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.
¶72 The majority opinion attempts to provide a definition
of "computerized communication system" by referring to the
dictionary.
¶73 The majority's "plain meaning" approach entails
locating the dictionary definitions of the three little words——
"computerized," "communication," and "system"12——asserting that
"'computerized communication system' is [not] a special or
technical term."13
¶74 Thus, the majority opinion examines not only the
phrase "computerized communication system" in isolation, but
12
Majority op., ¶33.
13
Majority op., ¶32; see also majority op. ¶34. Using the
dictionary definitions, the majority concludes that a
"computerized communication system" is "[a] group of
interacting, interrelated, or interdependent elements forming a
complex whole used to exchange thoughts or messages through a
computer."
7
No. 2014AP827-CR.ssa
also examines each word in isolation, before combining the
separate dictionary definitions of each word into a single
"plain meaning" of the phrase "computerized communication
system." Majority op., ¶¶33-34.
¶75 The majority opinion's efforts at defining these
"three little words"——"computerized communication system"——in
isolation defy common English usage and common sense. Sometimes
"no other words can tell it half so clearly" as an entire
phrase.14
¶76 Take, for example, the phrases "smart phone," "local
area network," "chat room," or "hard drive," all phrases used in
discussing technology. Defining each word in these phrases
separately yields a definition that gives little or no insight
into what the phrase——the words taken together——actually means.
¶77 I do not agree with the majority opinion that a
commonly understood, "plain" meaning of the phrase "computerized
communication system" exists. I agree with the court of appeals
that the text and context of Wis. Stat. § 948.075 demonstrate
that the phrase "computerized communication system" has a
14
See Sarah Vaughan, Three Little Words, on Live at the
London House (Mercury Records 1958).
8
No. 2014AP827-CR.ssa
particular meaning in the statutes.15 A court gives such terms
their "technical or special definitional meaning . . . ."16
¶78 I further disagree with the majority opinion's failure
to read Wis. Stat. § 948.075 in context. When interpreting a
statute, a court looks to the context in which statutory
language is used, "'not . . . at a single, isolated sentence or
portion of a sentence' . . . ."17
¶79 I would read this statute in context with two other
statutes, Wis. Stat. §§ 947.0125 and 48.825, both of which use
the phrase "computerized communication system." The parties
agreed in the court of appeals that the phrase "computerized
communication system" has the same meaning in all the statutes
in which the legislature uses the phrase. See State v.
McKellips, 2015 WI App 31, ¶12, 361 Wis. 2d 773, 864 N.W.2d 106.
¶80 These statutes use the phrase "computerized
communication system" as a term of art, with a particular
definition illuminated (albeit hazily) by their language and
context.
15
See State v. McKellips, 2015 WI App 31, ¶12, 361
Wis. 2d 773, 864 N.W.2d 106.
16
Bruno v. Milwaukee Cnty., 2003 WI 28, ¶20, 260
Wis. 2d 633, 660 N.W.2d 656 (citing Weber v. Town of Saukville,
209 Wis. 2d 214, ¶15, 562 N.W.2d 412 (1997)); see also Wis.
Stat. § 990.01(1) ("All words and phrases shall be construed
according to common and approved usage, but technical words and
phrases and others that have a peculiar meaning in the law shall
be construed according to such meaning.").
17
Hubbard v. Messer, 2003 WI 145, ¶9, 267 Wis. 2d 92, 673
N.W.2d 676 (quoting Landis v. Phys. Ins. Co. of Wis., Inc., 2001
WI 86, ¶16, 245 Wis. 2d 1, 628 N.W.2d 893).
9
No. 2014AP827-CR.ssa
¶81 First, Wis. Stat. § 947.0125, entitled "Unlawful use
of computerized communication systems" and enacted before the
statute at issue in the instant case, provides (among other
things) that any person who "[k]nowingly permits or directs
another person to send a message prohibited by this section from
any computer terminal or other device that is used to send
messages on an electronic mail or other computerized
communication system and that is under his or her control" is
subject to a Class B forfeiture.18
¶82 As the court of appeals reasoned,
Wis. Stat. § 947.0125 informs the definition of
"computerized communication system" in two ways.
First, we know that one example of using such a system
is sending email messages. Second, paragraph (3)(g)
informs us that a computer or other device, i.e.,
hardware, cannot itself constitute a computerized
communication system because that paragraph
distinguishes the two.19
¶83 Second, Wis. Stat. § 48.825 also uses the phrase
"computerized communication system" without defining it. This
statute prohibits certain kinds of advertising for purposes of
adoption.20
¶84 Section 48.825(1)(a) defines "advertise" to mean "to
communicate by any public medium that originates within this
state, including by newspaper, periodical, telephone book
18
Wis. Stat. § 947.0125(3)(g).
19
McKellips, 361 Wis. 2d 773, ¶14.
20
This statute was enacted after Wis. Stat. § 948.075 took
effect.
10
No. 2014AP827-CR.ssa
listing, outdoor advertising sign, radio, or television, or by
any computerized communication system, including by electronic
mail, Internet site, Internet account, or any similar medium of
communication provided via the Internet."
¶85 In Wis. Stat. § 48.825(1)(c), "Internet account" is
defined as "an account created within a bounded system
established by an Internet-based service that requires a user to
input or store access information in an electronic device in
order to view, create, use, or edit the user's account
information, profile, display, communications, or stored data."
¶86 As the court of appeals explains, Wis. Stat. §§ 48.825
and 947.0125 inform the definition of "computerized
communication system" in two similar ways:
First, we know that use of such a system includes all
of the examples and the category listed in the
statute. Second, because [§ 48.825](1)(c)
distinguishes between the "internet account" example
of computerized communication system and the
"electronic device" used to access it, we know that
the device itself cannot constitute such a system.21
¶87 In sum, I agree with the court of appeals that, based
on the ways in which the legislature has used the phrase
"computerized communication system," the phrase "is a
legislative term of art . . . ."22
A
¶88 Aside from telling us (1) that e-mail is an example of
a computerized communication system; and (2) that a
21
McKellips, 361 Wis. 2d 773, ¶16 (footnote omitted).
22
See McKellips, 361 Wis. 2d 773, ¶12.
11
No. 2014AP827-CR.ssa
"computerized communication system" cannot be hardware or a
device, the statutes and case law contain nothing that provides
additional clarity as to what constitutes a "computerized
communication system" in Wis. Stat. § 948.075.23
¶89 As the State acknowledged at oral argument, expert
testimony was necessary in the instant case to establish that
the defendant's use of a cellphone constituted use of a
"computerized communication system."
¶90 Although expert testimony is often admitted in
criminal cases and can aid the jury in applying the law on which
it is instructed, the need for expert testimony in the instant
case (and other cases under Wis. Stat. § 948.075) demonstrates
the lack of fair warning provided by the statute.
¶91 The following two exchanges from oral argument
illustrate the problem. The first exchange was with me:
Justice Abrahamson: Suppose they just use voicemail?
Does that fit within the statute?
Assistant Attorney General: I think it probably does.
Justice Abrahamson: Well, it either does or it
doesn't. Why do you say "probably"?
AAG: Well, because I don't have the facts here and I
don't have an expert testifying as to how that works
with voicemail.
23
The court of appeals concluded, "While we have not
derived a complete definition of the term 'computerized
communication system,' we have discerned examples or categories
that clearly do or do not constitute such a system." See
McKellips, 361 Wis. 2d 773, ¶17.
12
No. 2014AP827-CR.ssa
¶92 Later, a similar exchange occurred with Justice
Gableman:
Justice Gableman: It seems to me that when I read the
briefs, it seems to me the state is asking us to
assume a number of things. You [stated previously]
well maybe there's someplace that still uses a
switchboard. I have no idea how the telephone company
works . . . . Aren't you asking us to assume an awful
lot? Assume that by using a TracFone to call another
person that that device has become transformed into a
computer? Let's start with that.
AAG: No. Well, I mean, I am because that was what
the expert testified to. . . . If we were talking
about a land phone like that then there would be an
expert saying it's a phone like this and then the jury
would say well that's not . . . .
Justice Gableman: So say he used the phone. Say
there are no text messages, say there are no
photographs and . . . it was solely by voice by a call
and it was solely a verbal communication . . . . Is
that the facilitation of a sex crime by use of a
computerized communication system?
AAG: Well and there's another overt act,
perhaps . . . . It could be perhaps, but you have to
have presumably an expert testifying that there is
some computer involved in that computerized
communication system. . . .
¶93 These exchanges expose the failure of Wis. Stat.
§ 948.075 to provide fair notice to persons of ordinary
intelligence of the prohibited conduct. If expert testimony
regarding the internal functioning of a land line telephone (for
example) is necessary to determine whether its use constitutes a
"computerized communication system," then how does Wis. Stat.
§ 948.075 "give [a] person of ordinary intelligence a reasonable
13
No. 2014AP827-CR.ssa
opportunity to know what is prohibited, so that he may act
accordingly?"24
¶94 Persons of ordinary intelligence have no idea how
cellular phones (or land line phones) function. Likewise,
persons of ordinary intelligence do not know whether the various
uses of TracFones in the instant case constitute use of a
"computerized communication system."
¶95 Wisconsin Stat. § 948.075 is not "addressed to those
in a particular trade or business" in which the "terms used have
a meaning well enough defined to enable one engaged in that
trade or business to apply it correctly."25
¶96 Rather, Wis. Stat. § 948.075 is generally applicable,
and ordinary persons in the public do not know whether by using
a particular device in a particular manner, they may be using a
"computerized communication system."
¶97 As the court of appeals recognized in Town of East
Troy v. Town & Country Waste Service, Inc., 159 Wis. 2d 694,
707, 465 N.W.2d 510 (Ct. App. 1990), when the meaning of a
24
See Grayned, 408 U.S. at 108; see also United States v.
Williams, 553 U.S. 285, 304 (2008) (describing a vague statute
as one which fails "to provide a person of ordinary intelligence
fair notice of what is prohibited . . . .") (emphasis added).
25
See 1 LaFave, supra note 7, § 2.3(b), at 147 & n.29
(citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 498 (1982) (noting that the void for
vagueness test is less strict in the context of economic
regulation because businesses can be expected to consult
regulation in advance); Hygrade Provision Co. v. Sherman, 266
U.S. 497, 501-02 (1925) (noting that "the term 'kosher' has a
meaning well enough defined to enable one engaged in the trade
to correctly apply it, at least as a general thing.")).
14
No. 2014AP827-CR.ssa
statute varies from case to case based on expert testimony, "it
raises serious constitutional vagueness questions."
¶98 The State's argument in the instant case raises the
same problems. If, as the State contends, expert testimony is
necessary to know whether Wis. Stat. § 948.075 applies, then
Wis. Stat. § 948.075 does not give fair warning of the conduct
it prohibits.
B
¶99 I now consider the jury instructions in the context of
whether Wis. Stat. § 948.075 provides objective enforcement
standards. In reversing the judgment of conviction in the
instant case, the court of appeals examined the circuit court's
jury instructions regarding Wis. Stat. § 948.075. The question
is whether Wis. Stat. § 948.075 is "so unclear that a trial
court cannot properly instruct the jury"26 and therefore
unconstitutionally vague.
¶100 In the instant case, the circuit court correctly
instructed the jury by reciting the elements of Wis. Stat.
§ 948.075. Then the circuit court apparently attempted to
explain what the statutory phrase "computerized communication
system" means.
¶101 The circuit court stated as follows:
Evidence has been received that the defendant
communicated with a child under the age of 16 via a
mobile or cellphone. You must determine whether the
26
1 LaFave, supra note 7, § 2.3(c), at 151.
15
No. 2014AP827-CR.ssa
phone described in the evidence constitutes a
computerized communication system.
To aid you in that determination, you are instructed
that under Wisconsin law, a computer is defined as——
computer is defined as computer, which means 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. Computer system is defined as a set of
related computer equipment, hardware, or software.
¶102 This instruction took the suggestion of Wis JI——
Criminal 2135, a pattern jury instruction, that other statutory
definitions may illuminate the meaning of the undefined phrase
"computerized communication system."
¶103 The circuit court borrowed definitions for "computer"
and "computer system" from another statute that defined these
words explicitly for purposes of that section of the statutes.
See Wis. Stat. § 943.70(1)(am), (e).
¶104 Note 3 to the pattern instruction states:
"'Computerized communication system' is not defined in
§ 948.075. Section 943.70, Computer crimes, provides
definitions of 'computer,' and 'computer system.' See
§ 943.70(1)(am) and (e)."
¶105 Thus, the instruction the jury received defined only
the words "computer" and "computer system."
¶106 There are problems with this approach.
¶107 First, the legislature explicitly stated in Wis. Stat.
§ 943.70 that the definitions of "computer" and "computer
system" apply "[i]n this section," i.e., in § 943.70. The
16
No. 2014AP827-CR.ssa
legislature did not state that these definitions apply to any or
all other sections or chapters of the statutes. Indeed, the
legislature made it very clear it was limiting these definitions
to § 943.70.
¶108 Second, neither of these definitions actually mirrors
the text of Wis. Stat. § 948.075. Section 948.075 refers to a
"computerized communication system." Instructing the jury on
what a "computer" or "computer system" is does not illuminate
what a "computerized communication system" is. Rather, such
instructions might be confusing to the jury. They seem to have
confused the circuit court and attorneys at trial.
¶109 The definition of "computer" in Wis. Stat.
§ 943.70(1)(am) refers to "an electronic device." The State and
the court of appeals agree, however, that the circuit court
misspoke when it told the jury to determine whether the
cellphone described in the evidence constitutes a computerized
communication system.27 The system and the device are different.
According to the State, the device is used to access a
computerized communication system.
¶110 Likewise, the definition of "computer system" in Wis.
Stat. § 943.70(1)(e) may have confused the jury. The phrase
"computerized communication system" refers to a "communication
system," not a "computer system." Moreover, as the State
argued, a computer (or other similar device) is used to access a
27
See McKellips, 361 Wis. 2d 773, ¶21.
17
No. 2014AP827-CR.ssa
computerized communication system. Thus, the jury might again
be confused by the addition of this definition.
¶111 In sum, without the addition of these two (largely
irrelevant and potentially confusing) definitions from other
statutes, and the circuit court's erroneous comment that the
jury was to "determine whether the phone described in the
evidence constitutes a computerized communication system," the
jury would have been left with only the words "computerized
communication system" as guidance in applying Wis. Stat.
§ 948.075 to the facts of the instant case.
¶112 Provided with a legislative term of art and no means
of defining it, the jury is then left to decide "without any
legally fixed standards, what is prohibited and what is not in
each particular case."28 This would permit an unconstitutional,
"'standardless sweep that allows . . . juries to pursue their
personal predilections.'"29
¶113 As a result, I conclude that Wis. Stat. § 948.075 is
"so vague that it fails to give ordinary people fair notice of
the conduct it punishes, [and] so standardless that it invites
arbitrary enforcement."30
¶114 Accordingly, I conclude that Wis. Stat. § 948.075 is
unconstitutional.
28
1 LaFave, supra note 7, § 2.3(c), at 151; see also
(internal alteration omitted); Popanz, 112 Wis. 2d at 173.
29
Kolender, 461 U.S. at 358 (quoting Smith, 415 U.S. at
575).
30
See Johnson, 135 S. Ct. at 2556.
18
No. 2014AP827-CR.ssa
II
¶115 After this court granted the State's petition for
review of the court of appeals' decision overturning McKellips'
conviction, McKellips filed a motion in circuit court for
release on bail pending review in this court.
¶116 It appears from McKellips' filing in this court that
the parties were unsure about how to proceed following the court
of appeals' decision and this court's decision to grant review.
There were also concerns over whether the circuit court had
"subject matter jurisdiction" or "competency to proceed."
¶117 McKellips sent a letter to the Clerk of the Supreme
Court seeking guidance in this matter. The Clerk advised that
she does not provide such guidance.
¶118 The circuit court then denied McKellips' motion for
release on bail.
¶119 McKellips subsequently filed a motion in the court of
appeals seeking that court's review of the circuit court's
denial of his request for release on bail. The court of appeals
dismissed the motion with the following explanation: "Because
this appeal is currently pending in the Wisconsin Supreme Court,
the motion should be filed in that court."
¶120 McKellips then sought relief in this court.
¶121 A member of the court refused to allow a discussion of
this matter at oral argument.31 Thus McKellips was incarcerated
31
Oral argument in the instant case took place on April 7,
2016, and is available online through Wisconsin Eye at
http://www.wiseye.org/Video-Archive/Event-Detail/evhdid/10498.
19
No. 2014AP827-CR.ssa
until this court reached a decision on the merits of the instant
case. "[A]ny deprivation of liberty is a serious matter."
Argersinger v. Hamlin, 407 U.S. 25, 41 (1972) (Burger, C.J.,
concurring).
¶122 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.
¶123 These questions do not appear to be definitively
resolved in the statutes or case law. They include the
interpretation and application of Wis. Stat. §§ 809.31 and
969.01; State v. Whitty, 86 Wis. 2d 380, 398, 272 N.W.2d 842
(1978); and Rohl v. State, 90 Wis. 2d 18, 279 N.W.2d 731 (Ct.
App. 1979). Moreover, these issues are likely to recur yet may,
with the passage of time or subsequent events, become moot. I
would have the court address them.
¶124 I attempted to start a discussion about these issues
with the parties at oral argument, to no avail. Now, the
majority opinion denies the petition for review/motion without
explanation. I disagree with the way the court has managed this
matter.
¶125 For the reasons set forth, I dissent and write
separately.
¶126 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
20
No. 2014AP827-CR.ssa
1