State v. Rory A. McKellips, 881 N.W.2d 258

Background

Defendant Rory McKellips, a high‑school coach, bought and supplied a flip‑style TracFone to a 14‑year‑old player (C.H.) and exchanged many texts and multimedia messages with her while she was a minor; the jury convicted him under Wis. Stat. § 948.075(1r) (use of a computerized communication system to facilitate a child sex crime) and for obstructing an officer, but acquitted him of other sexual‑assault counts.
Phone records showed thousands of contacts between McKellips’ phone and the victim’s phones; the phone admitted at trial had limited retrievable content, but expert testimony established the flip phone performed computing functions and that carriers route texts through servers/computer networks.
McKellips argued § 948.075 did not apply because the flip phone did not use the internet, that the statute is unconstitutionally vague, and (later) that the jury instruction mischaracterized the statutory element; the court of appeals sua sponte reversed and ordered a new trial under Wis. Stat. § 752.35, finding the jury instruction misdirected the jury.
The Wisconsin Supreme Court reviewed the case and considered four issues: whether texts/picture messages between flip phones satisfy “computerized communication system,” whether § 948.075 is unconstitutionally vague, whether the jury instruction was erroneous/harmless, and whether the court of appeals properly reversed under § 752.35.
The Supreme Court affirmed: (1) texts/picture messages via flip phones satisfy the statute because the phone functioned as a computer and messages passed over a carrier computer system; (2) § 948.075 is not unconstitutionally vague; (3) the extra phrasing in the jury instruction, while imperfect, did not render the instructions inaccurate and any error was harmless; (4) the court of appeals erred in reversing under § 752.35 because the real controversy was fully tried and discretionary reversal is limited to exceptional cases.

Issues

Issue	State's Argument (Plaintiff)	McKellips' Argument (Defendant)	Held
Whether exchanging texts/picture messages via a flip phone satisfies the statutory element “uses a computerized communication system”	Texts/picture messages transmitted through carrier servers/networks and sent from a phone that performs computing functions satisfy the term	The flip phone did not use the internet; statute should be limited to internet/email‑based communications	Held: Yes. Phone functioned as a computer and messages passed over a computerized system; internet use is not required.
Whether Wis. Stat. § 948.075 is unconstitutionally vague	Statute gives fair notice and objective enforcement; term is understandable and deliberately broad to cover evolving tech	Term “computerized communication system” is undefined and ambiguous; experts are needed to determine application, so statute lacks fair notice and objective standards	Held: Not vague. A person of ordinary intelligence would understand the prohibition; statutory elements (intent and an overt act) and prior caselaw make enforcement objective.
Whether the jury instruction misstated the law and prejudiced defendant	Instruction accurately stated the elements; supplemental wording could have been clearer but was legally correct when read as a whole and any error was harmless	The added instruction telling the jury to decide whether the phone itself “constitutes” a computerized communication system misdirected the jury and was prejudicial	Held: Instruction, read as a whole, accurately stated the law; any imprecision was harmless because evidence and a correct pattern instruction supported the verdict.
Whether the court of appeals properly reversed under Wis. Stat. § 752.35 (interest of justice)	N/A (State sought review of the reversal)	Court of appeals reversed sua sponte without deciding McKellips’ primary claims; reversal under § 752.35 was improper	Held: Court of appeals erred. Discretionary reversal limited to exceptional cases and the real controversy was fully tried.

Key Cases Cited

United States v. Flores‑Lopez, 670 F.3d 803 (7th Cir. 2012) (recognizing that modern cell phones are computers)
State v. Olson, 314 Wis. 2d 630 (Ct. App. 2008) (applying § 948.075 to online chat communications)
State v. Schulpius, 298 Wis. 2d 155 (Ct. App. 2006) (applying statute to internet communications)
State v. Beamon, 347 Wis. 2d 559 (2013) (explaining standard of review for jury instructions)
State v. Kucharski, 363 Wis. 2d 658 (2015) (limiting use of Wis. Stat. § 752.35 discretionary reversal to exceptional cases)