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,

 v.

Rory A. McKellips,

 Defendant-Appellant.

FILED

JUN 28, 2016

Diane M. Fremgen

Clerk of Supreme Court

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

2

§ 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.
No. 2014AP827-CR

3

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 
No. 2014AP827-CR

4

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 flipstyle 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.
No. 2014AP827-CR

5

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 
No. 2014AP827-CR

6

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 
No. 2014AP827-CR

7

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 
No. 2014AP827-CR

8

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 
No. 2014AP827-CR

9

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.
No. 2014AP827-CR

10

 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 
No. 2014AP827-CR

11

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.
No. 2014AP827-CR

12

 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 
No. 2014AP827-CR

13

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 
No. 2014AP827-CR

14

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.
No. 2014AP827-CR

15

 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 
No. 2014AP827-CR

16

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."
No. 2014AP827-CR

17

 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 
No. 2014AP827-CR

18

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.
No. 2014AP827-CR

19

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
No. 2014AP827-CR

20

¶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 
No. 2014AP827-CR

21

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.
No. 2014AP827-CR

22

(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 
No. 2014AP827-CR

23

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 
No. 2014AP827-CR

24

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. 
No. 2014AP827-CR

25

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.
No. 2014AP827-CR

26

¶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 
No. 2014AP827-CR

27

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).
No. 2014AP827-CR

28

¶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 
No. 2014AP827-CR

29

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 
No. 2014AP827-CR

30

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 flipstyle 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) 
No. 2014AP827-CR

31

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. 
No. 2014AP827-CR

32

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 JICriminal 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.
No. 2014AP827-CR

33

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, 
No. 2014AP827-CR

34

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 
No. 2014AP827-CR

35

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 
No. 2014AP827-CR

36

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.
No. 2014AP827-CR.ssa

1

¶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.
No. 2014AP827-CR.ssa

2

¶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 
No. 2014AP827-CR.ssa

3

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.
No. 2014AP827-CR.ssa

4

¶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).
No. 2014AP827-CR.ssa

5

¶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)
No. 2014AP827-CR.ssa

6

¶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. 
No. 2014AP827-CR.ssa

7

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." 
No. 2014AP827-CR.ssa

8

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). 
No. 2014AP827-CR.ssa

9

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). 
No. 2014AP827-CR.ssa

10

¶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. 
No. 2014AP827-CR.ssa

11

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. 
No. 2014AP827-CR.ssa

12

"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.
No. 2014AP827-CR.ssa

13

¶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 
No. 2014AP827-CR.ssa

14

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.")). 
No. 2014AP827-CR.ssa

15

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. 
No. 2014AP827-CR.ssa

16

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 
No. 2014AP827-CR.ssa

17

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.
No. 2014AP827-CR.ssa

18

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. 
No. 2014AP827-CR.ssa

19

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. 
No. 2014AP827-CR.ssa

20

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.
No. 2014AP827-CR.ssa

1