State v. McKellips, 2014AP827–CR.

CourtUnited States State Supreme Court of Wisconsin
Citation369 Wis.2d 437,881 N.W.2d 258
Docket NumberNo. 2014AP827–CR.,2014AP827–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Rory A. McKELLIPS, Defendant–Appellant.
Decision Date28 June 2016

369 Wis.2d 437
881 N.W.2d 258

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,
Rory A. McKELLIPS, Defendant–Appellant.

No. 2014AP827–CR.

Supreme Court of Wisconsin.

Argued April 7, 2016.
Decided June 28, 2016.

881 N.W.2d 260

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.


369 Wis.2d 443

¶ 1 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. § 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

369 Wis.2d 444

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

881 N.W.2d 261

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 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

369 Wis.2d 445

controversy was fully tried in this case; moreover, discretionary reversals under § 752.35 are limited to exceptional cases.


¶ 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 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

369 Wis.2d 446

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

881 N.W.2d 262

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 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

369 Wis.2d 447

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 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.

369 Wis.2d 448

¶ 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 season ended, the contacts with McKellips increased, and both of her parents told her

881 N.W.2d 263

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...

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