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Jeremy Perri Guest Posts: SCOW says flip phones are “computerized communication systems”

State v. McKellips, 2016 WI 51, 6/28/16, reversing a published court of appeals decision, 2015 WI App 31; case activity (including briefs)

SCOW here defines the phrase “computerized communication system” by separately defining each word, and then lumping together those definitions to conclude that text messages sent with a flip phone constitute “use of a computerized communication system.” It concludes that Wis. Stat. §948.075 is understood by persons of ordinary intelligence, and is therefore not unconstitutional; and that the circuit court’s jury instructions, while not perfect, were close enough. Additionally,  SCOW reminds the court of appeals that discretionary reversals under §752.35 are only for “exceptional cases.”

The short version of the facts relevant to this appeal: McKellips was a high school girls basketball coach, and the victim a player on his team.  After her parents complained that the girl was spending too much time talking and texting with her coach, McKellips secretly gave her a flip-phone and they continued to exchange text messages.  After her father discovered the secret phone, McKellips was charged with repeated sexual assault of a child, exposing genitals or pubic area, use of a computer to facilitate a sex crime, and with obstructing an officer.   A jury acquitted him of the sexual assault and exposure charges, but convicted on the using a computer to facilitate a sex crime and obstructing.

The appeal focused on the conviction for use of a computer charge under Wis. Stat. §948.075, which challenged whether McKellips’ text messaging on his flip phone constituted use of a “computerized communication system,” and also asserted that §948.075 is unconstitutionally vague regarding the meaning of “computerized communication system.”

The Court of Appeals found the term “computerized communication system” – not defined in the statutes or dictionary – is a “legislative term of art,” and concluded that a device like a cell phone is not itself a “computerized communication system” but instead is used to access such a system.  Thus, according to the Court of Appeals, the circuit court gave the jury an “impossible task” by instructing it to determine whether the phone constituted a “computerized communication system.”  The Court of Appeals therefore reversed, utilizing its discretionary reversal power under Wis. Stat. §752.35 and finding the real controversy was not tried.

SCOW disagreed and reversed the Court of Appeals, as it had markedly less difficulty with the term “computerized communication system,” concluding that it was not a special or technical term, but rather “three commonly understood words used together,” to wit:

  • Computerized: of or relating to a computer or the use of a computer.
  • Communication: the act of communicating; transmission; the exchange of thoughts, messages, or information
  • System: a group of interacting, interrelated, or interdependent elements forming the complex whole.

Thus, under SCOW’s divide and conquer method, “computerized communication system” means: “A group of interacting, interrelated, or interdependent elements forming a complex whole used to exchange thoughts or messages through a computer.”  Slip op. ¶¶32-34. The majority concluded that McKellips’ conduct met its definition, as his flip phone had buttons that when pushed result in numbers, letters and words appearing on a screen.  SCOW noted that an expert testified at trial that all cellphone carriers are connected to a server and use a computer system or network, especially when sending text messages.  ¶36.  Text messages are plainly communication. ¶37. And cellphones use a system to complete communication. ¶38.

The majority also found that Wis. Stat. 948.075 is not unconstitutionally vague:

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. ¶42. . . .

McKellips also fails to convince us that the statute does not provide an objective standard of enforcement….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. ¶45.

After finding no problem with the statute, the jury instructions, and the sufficiency of the evidence, SCOW thus reverses the court of appeals’ discretionary reversal, reminding the lower court that reversal in the interest of justice is a last resort (they should have first decided the issues raised in the direct appeal), and are to be limited to “exceptional” cases.  ¶52.

A dissent authored by Justice Abrahamson and joined by Justice Ann Walsh Bradley takes issue with the majority’s definition methodology:

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. ¶75.

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.] ¶76,

The dissent also concludes the statute is void for vagueness because the phrase “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.” ¶71. And, since expert testimony is needed to determine whether something (like a landline) uses a computerized communication system, then that means that a person of ordinary intelligence does not know what is prohibited. Dissent at ¶93.

Additional items of note: In the court of appeals, McKellips also sought a new trial, arguing that the trial court erroneously admitted other-acts evidence. That issue was not reached by the court of appeals, as it reversed on other grounds. Presumably, this case will now be remanded to the court of appeals for determination of that issue.

Also, the dissent at ¶¶115-124 discusses McKellips’ attempt to be released on bail, after the state’s petition for review was granted. The circuit court was unsure of the process, yet ultimately denied bail; McKellips sought review by the court of the appeals, which directed McKellips to file the motion in the Supreme Court.  Per the dissent:

A member of the court refused to allow a discussion of this matter at oral argument.31 Thus McKellips was incarcerated 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). ¶121 .

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). ¶122.

An amicus brief was filed on behalf of the Wisconsin Association of Criminal Defense Lawyers, alerted the court to a potential flaw in the jury instruction (2135) for use of a computer to facilitate a child sex crime; in particular when the person being communicated with is an adult posing as a child. See ¶48, fn7.

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{ 2 comments… add one }
  • Jim Kroner June 30, 2016, 9:11 am

    Given the Court’s explanation of a computerized communication system, I think there is a reasonable probability most modern cars fall within the definition. Do we really think that is what the legislature intended?

  • Bill S. June 30, 2016, 10:23 am

    The SCOW has completely befuddled the test for discretionary reversal on direct appeal in recent years. The “exceptional cases” rule was previously discussed in the context of collateral review following a Section 974.06 post-conviction motion, long after the case appeared to be over. Even then, however, the SCOW sometimes granted relief. E.g., State v.Armstrong. Appellate counsel should continue to argue the huge distinction between direct appeal and collateral review.

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