                                                                  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.



                          18
                                                                     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




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                                                                    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.")).


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                                                                     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.


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                                                                               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.




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    No.   2014AP827-CR.ssa




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