State v. Rory A. McKellips, 2015 WI App 31, petition for review granted 11/16/15, reversed, 2016 WI 51; case activity (including briefs)
McKellips is entitled to a new trial on charges he used a computer to facilitate a child sex crime because the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system,” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.”
McKellips and the victim exchanged calls and text messages on their cell phones. McKellips used a flip-style cell phone, and testimony established that phone calls and text messages on his phone would use the “voice” side of the cell phone network while picture messages and the phone’s limited internet capability would use the “data” side of the network. The phone also had various logic, arithmetic, and memory functions that involved electronic or magnetic impulses. (¶4).
The standard instruction for crimes under § 948.075 is Wis JI—Criminal 2135 (Apr. 2013). One of the elements it lists is that “[t]he defendant used a computerized communication system to communicate with an individual.” (¶5). After reciting the standard instruction, the circuit court further instructed:
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.
This instruction focused the jury on the wrong question. The instruction’s reference to the definition of “computer” (lifted from § 943.70(1)(am) (¶16 n.7)) is misleading because the relevant instrumentality is a “computerized communication system.” That phrase is not defined anywhere, but the two other statutes that use the phrase—§§ 48.825(1)(a) and 947.0125—provide examples or characterizations that clarify, if not wholly determine, the definition:
- § 947.0125 refers a dozen times to “an electronic mail or other computerized communication system,” so one example of using such a system is sending email messages. And § 947.0125(3)(g) distinguishes between a computer or other device and the computerized communication system, so the device cannot by itself constitute the system. (¶¶13-14).
- § 48.825(1)(a) likewise provides that a computerized communication system includes “electronic mail, Internet site, Internet account, or any similar medium of communication provided via the Internet.” And § 48.825(1)(c) distinguishes between the “Internet account” example of computerized communication system and the “electronic device” used to access it, which also means the device itself cannot constitute the system. (¶¶15-16).
Because the device used to communicate on a computerized communication system is not itself the system, it is readily apparent that the jury instruction misled the jury:
¶21 …[A]s our above interpretation reveals, a cell phone or other device, itself, can never constitute a computerized communication system. The jury was therefore misdirected and given an impossible task. Moreover, providing the definition of computer immediately after the erroneous instruction made it all but inevitable that the jury would conclude the cell phone was a computerized communication system, because the cell phone indisputably met the provided definition of computer.
¶22 The jury was asked whether McKellips’[s] cell phone, itself, constituted a computerized communication system. Instead, the court should have asked the jury whether McKellips’ various alleged uses of the cell phone constituted communication via a computerized communication system. This question was the primary issue at trial. We therefore conclude the real controversy was not tried, and we grant McKellips a new trial in the interest of justice.
 Given the disputed definition of computerized communication system, the court and the parties might consider whether a special verdict question would be appropriate with respect to each of McKellips’[s] three alleged types of cell phone communication, i.e., MMS picture messages, SMS text messages, and voice calls.