Wisconsin Supreme Court rules against former coach (UPDATE)

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By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court ruled Tuesday against a former longtime high school basketball coach, reinstating his conviction in a sex crime case involving a 15-year-old student.

The case turned on whether a flip-style cellphone is a “computerized communication system” used to facilitate a child sex crime. Rory McKellips, a former coach at Mosinee and Athens high schools in central Wisconsin, was convicted in 2013 of using a computer to facilitate a sex crime and sentenced to 10 years in prison.

McKellips, 59, argued that sending texts and picture messages between flip-style phones doesn’t meet the state law definition for “computerized communication system” because the phones don’t use the internet. He also argued that the state law was unconstitutionally vague.

A state appeals court last year overturned his conviction and granted him a new trial, saying the jury was given improper instructions related to whether the phone was a computer.

But the state Supreme Court, in a 4-2 decision written by Justice Rebecca Bradley, sided with state prosecutors and reinstated his conviction. The court said that while the flip-style phones in question “may not be as advanced as some modern cellphones, McKellips’ use of it satisfied the definition of computerized.”

The court determined that state law does not require use of the internet to satisfy the definition of “computerized computer system.” It also rejected his arguments that the law is vague and that the jury at his trial was given misleading instructions about whether the cellphone was a computerized messaging system.

Justices Shirley Abrahamson and Ann Walsh Bradley dissented, arguing that the law in question is unconstitutionally vague because “computerized communication system” is not defined and its meaning is not easily understood.

Justice David Prosser did not participate.

McKellips, of Mosinee, was formerly a coach at Mosinee High School and was hired in 2010 to coach basketball at nearby Athens High School.

The court record shows that McKellips began having cellphone contact with a 14-year-old girl on the team in December 2010. Their contact continued until September 2011 when the girl’s father found a secret cellphone McKellips had given her.

Police determined that between December 2010 and July 2011, there were 8,324 texts exchanged between McKellips and the girl. The girl testified at trial that during that time they had sexual contact four times.

McKellips was found not guilty of repeated sexual assault of a child and exposing his genitals,

A spokesman for the state Department of Justice did not immediately return a message seeking comment on the ruling. McKellips’ attorney, Scott Swid, said it was a “bad day for justice in the state of Wisconsin.”

“Terms such as a ‘computerized communications system’ should be clearly defined by the Legislature and the court should hold the Legislature to that task,” Swid said. “Drafting legislation should not be that hard.”