¶ 16 I dissent. I would vacate and remand the case to the trial court for findings of fact on the most important issue in this case — whether the actions of A.T. constituted masturbation, the act with which he was specifically charged. The trial court evaded such finding, leaving it instead to the appellate courts. The trial judge stated:
You notice I have not used the word "masturbate." I'm not going to find that he masturbated in the presence of another. I'll leave it to the appellate courts. If they want to define "masturbate," they can define it however they want. I'm very carefully *Page 233 just saying what I find that the young man did.
¶ 17 A.T. testified at trial that he had scratched himself for less than a second. The woman witness testified that A.T. had rubbed his crotch up and down for ten to fifteen seconds. The deputy sheriff testified that A.T.'s conduct was more than a scratch, as someone playing with himself. The trial judge made no finding as to length of time but found that A.T. had rubbed his crotch in a sexually explicit sort of way and "of duration that is different than scratching himself."
¶ 18 However, the court of appeals made its own findings that A.T.'s conduct had lasted ten to fifteen seconds and did not constitute masturbation. Now the majority finds that A.T.'s conduct, as described by the trial judge of duration "different than scratching," constituted the "simulation of masturbation."
¶ 19 The role of a trial judge is to weigh the evidence, make findings of fact based upon that evidence, and reach legal conclusions based upon those facts. On appeal, the role of an appellate court is to determine, where properly raised, if there was sufficient evidence to support the trial court's findings of fact and/or to determine if the findings of fact support the legal conclusions and/or if the legal conclusions of the trial court were correct. Appellate courts are not to reweigh the evidence and make their own findings. Where the findings are inadequate, the case should be remanded to the trial court.
¶ 20 The trial judge in this case should have made specific findings as to A.T.'s exact movements and the length of time involved and then made a legal conclusion in regard thereto. Then the court of appeals could have properly determined if there was sufficient evidence to support the trial court's findings and if those findings supported the legal conclusion reached by the trial court. It was error for the court of appeals to make its own findings as to the duration of A.T.'s actions. This case should be remanded to the trial court for appropriate findings of fact and conclusions as to whether A.T.'s actions constituted masturbation.
¶ 21 If on remand the trial court concludes, based upon its findings, that the acts of A.T. did not constitute masturbation, it would then have to determine whether A.T.'s acts were in violation of the statute's catchall phrase "any other act of lewdness." To make this determination under the rule of ejusdem generis, the trial court would have to determine whether A.T.'s acts were of equal magnitude or gravity as those specific acts set forth in the statute. This application ofejusdem generis applies inasmuch as we are dealing with "actions," not things. Of necessity the actions must be examined as to whether they are of the same magnitude or gravity as the specific acts. As the majority correctly points out, the purpose of the doctrine of ejusdem generis is to interpret the general term, and the general term is restricted in scope to same kind, class, character, or nature as the specific terms. Deciding whether an act, as opposed to a thing, is of the same characteror nature of the act specified in the statute necessitates an examination as to whether such act is of equal magnitude or gravity with those acts specifically set forth in the statute. Otherwise, the application of "any other act of lewdness" would be vague and unconstitutional.
¶ 22 I would reverse the court of appeals and direct it to remand this case to the trial court for findings of fact based upon the evidence as to A.T.'s exact acts and the duration thereof and conclusions of whether A.T.'s acts constituted masturbation and, if not, whether such acts were of equal magnitude or gravity with the specific acts stated in the statute so as to constitute an "other act of lewdness." *Page 234