State v. McKellips
864 N.W.2d 106
Wis. Ct. App.2015Background
- Rory McKellips was charged with, and convicted of, using a computer to facilitate a child sex crime (Wis. Stat. § 948.075) and obstruction; convictions for repeated sexual assault and exposing were acquittals. Only the computer-related conviction is appealed.
- Evidence showed McKellips communicated with the victim by calls and SMS/MMS on a Motorola flip phone (TracFone prepaid). The phone had limited internet capability; victim sent picture messages that may have been downloaded.
- The trial court instructed the jury using the pattern instruction requiring the State to prove the defendant "used a computerized communication system," then asked the jury to determine whether the phone itself "constitutes a computerized communication system," and provided a statutory definition of "computer."
- McKellips argued the State failed to prove use of a computerized communication system (contending voice/SMS use is not internet-based use) and alternatively argued the statute is unconstitutionally vague as to that term.
- The court of appeals concluded the jury instruction was erroneous because a device itself (e.g., a phone) cannot be a "computerized communication system" under the statutory context; the jury thus was misdirected and given an impossible task, so the real controversy was not fully tried.
- The conviction for the computer-related charge was reversed and the case remanded for a new trial in the interest of justice; other evidentiary issues were not reached.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McKellips) | Held |
|---|---|---|---|
| Whether the State proved use of a "computerized communication system" when defendant used a flip phone to call/text the victim | Phone communications and the phone's limited internet capability suffice; the phone was a computerized communication system | Use of voice/SMS (the "voice" side of network) is not use of a computerized communication system; only internet-based uses qualify | Jury was incorrectly instructed to decide whether the device itself "constitutes" a computerized communication system; court reversed and remanded for new trial because real controversy not fully tried |
| Proper statutory meaning of "computerized communication system" | Asserted the term encompasses communications over networks (including telephone networks) and focused on device capability | Argued the term requires internet/data use, not mere voice/SMS calls | Court did not fully resolve definition but concluded statutory context shows the device itself cannot be the system; examples in related statutes point to email, Internet sites, accounts as paradigmatic systems |
| Whether the jury instruction defining "computer" was appropriate to establish a computerized communication system | Relied on pattern instruction and computer definitions from § 943.70 | Argued the instruction conflated "computer" with "computerized communication system," misleading jury | Court held supplying the definition of "computer" after asking whether the phone was a computerized communication system misdirected the jury and likely led to error |
| Whether remand is required or whether sufficiency/vagueness should be decided | Urged conviction stands or sufficiency proven; urged broader view of computerized systems | Sought dismissal for insufficiency and vagueness | Court exercised discretionary reversal under Wis. Stat. § 752.35, granted new trial; declined to decide sufficiency or vagueness issues |
Key Cases Cited
- State v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996) (real controversy not fully tried can warrant new trial)
- Vollmer v. Luety, 156 Wis. 2d 1, 456 N.W.2d 797 (1990) (explains discretionary reversal standard under Wis. Stat. § 752.35)
- McNeil v. Hansen, 300 Wis. 2d 358, 731 N.W.2d 273 (2007) (statutory interpretation reviewed de novo)
- State ex rel. Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633, 681 N.W.2d 110 (2004) (principles of statutory construction)
- State v. Davis, 337 Wis. 2d 688, 808 N.W.2d 130 (2011) (exercise of discretionary reversal discussed)