Statutory Interpretation – Elements of the Offense

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WI Supreme Court

Case Name: State of Wisconsin v. Rory A. McKellips

Case No.: 2014AP287-CR

Focus: Statutory Interpretation – Elements of the Offense

State has met its burden of providing evidence of element, use of computerized communications system.

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

Reversed

Concurring:

Dissenting: ABRAHAMSON, J. and BRADLEY, A. W., J. dissent (Opinion filed)

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