State v. Rory A. McKellips

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, FILED
v. JUN 28, 2016
Rory A. McKellips, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.

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

§ 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.

2
 No. 2014AP827-CR

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
3
 No. 2014AP827-CR

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 flip-

style 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.

4
 No. 2014AP827-CR

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
5
 No. 2014AP827-CR

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
6
 No. 2014AP827-CR

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
7
 No. 2014AP827-CR

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

8
 No. 2014AP827-CR

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.
9
 No. 2014AP827-CR

 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
10
 No. 2014AP827-CR

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.

11
 No. 2014AP827-CR

 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
12
 No. 2014AP827-CR

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

13
 No. 2014AP827-CR

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.

14
 No. 2014AP827-CR

 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
15
 No. 2014AP827-CR

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."

16
 No. 2014AP827-CR

 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

17
 No. 2014AP827-CR

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.

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 No. 2014AP827-CR

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

19
 No. 2014AP827-CR

¶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
20
 No. 2014AP827-CR

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.

21
 No. 2014AP827-CR

(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

22
 No. 2014AP827-CR

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

23
 No. 2014AP827-CR

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.

24
 No. 2014AP827-CR

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.
25
 No. 2014AP827-CR

¶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

26
 No. 2014AP827-CR

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).

27
 No. 2014AP827-CR

¶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
28
 No. 2014AP827-CR

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
29
 No. 2014AP827-CR

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 flip-

style 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)
30
 No. 2014AP827-CR

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.
31
 No. 2014AP827-CR

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 JI-

Criminal 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.

32
 No. 2014AP827-CR

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,
33
 No. 2014AP827-CR

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

34
 No. 2014AP827-CR

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
35
 No. 2014AP827-CR

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.

36
 No. 2014AP827-CR.ssa

¶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.

1
 No. 2014AP827-CR.ssa

¶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
2
 No. 2014AP827-CR.ssa

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.

3
 No. 2014AP827-CR.ssa

¶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).

4
 No. 2014AP827-CR.ssa

¶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)
5
 No. 2014AP827-CR.ssa

¶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.

6
 No. 2014AP827-CR.ssa

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."

7
 No. 2014AP827-CR.ssa

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).

8
 No. 2014AP827-CR.ssa

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).

9
 No. 2014AP827-CR.ssa

¶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.

10
 No. 2014AP827-CR.ssa

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.

11
 No. 2014AP827-CR.ssa

"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.

12
 No. 2014AP827-CR.ssa

¶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

13
 No. 2014AP827-CR.ssa

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.")).

14
 No. 2014AP827-CR.ssa

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.

15
 No. 2014AP827-CR.ssa

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

16
 No. 2014AP827-CR.ssa

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.

17
 No. 2014AP827-CR.ssa

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.

18
 No. 2014AP827-CR.ssa

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.

19
 No. 2014AP827-CR.ssa

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.

20
 No. 2014AP827-CR.ssa

1