STATE EX REL. AT

• Decision Date: 25 September 2001
• Docket Number: No. 20000594.,20000594.
• Citation: 34 P.3d 228,2001 UT 82
• Parties: STATE of Utah, in the interest of A.T., a person under eighteen years of age. State of Utah, Petitioner, v. A.T., Respondent.
• Court: Utah Supreme Court

34 P.3d 228

2001 UT 82

STATE of Utah, in the interest of A.T., a person under eighteen years of age.

State of Utah, Petitioner, v. A.T., Respondent.

No. 20000594.

Supreme Court of Utah.

September 25, 2001.

Mark L. Shurtleff, Att'y Gen., Karen A. Klucznik, Asst. Att'y Gen., Salt Lake City, for petitioner.

Alan M. Williams, Vernal, for respondent.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

WILKINS, Justice:

¶ 1 A.T., a minor, was charged in juvenile court with lewdness, specifically, masturbating in the presence of another in a lewd and offensive manner, a violation of section 76-9-702(1) of the Utah Code, a class B misdemeanor if committed by an adult. The charge was adjudicated as true, and A.T. appealed to the court of appeals. The court of appeals reversed, and the State petitioned for certiorari, which we granted. We reverse the court of appeals and reinstate the adjudication of the juvenile court.

BACKGROUND

¶ 2 In the late evening of September 26, 1998, fifteen-year-old A.T. was riding in a friend's truck when they stopped in the parking lot of a 7-Eleven store in Vernal. A.T. got out of his friend's pick-up truck and stood on the sidewalk in front of the parked cars in the lot. A woman was sitting in a car two cars over from where they parked. A.T. looked at her and "grabbed ahold of his crotch and shook it up and down" for ten to fifteen seconds. The woman responded by rolling up her car window. A.T. then leaned over to say something to his friend who was working on the pick-up's front license plate, looked back at the woman, and laughed. He then faced the woman again, "put his hand over his crotch again" and rubbed "it up and down" while pointing at the woman. The woman was "shocked," and the display made her "[v]ery uncomfortable." The incident was also observed by a plainclothes deputy sheriff standing a short distance away using the payphone. The officer described A.T.'s conduct as "more than just a scratch," and as someone "playing with themselves." Subsequently, A.T. was charged with masturbating in the presence of another in a lewd and offensive manner, a violation of the lewdness statute, section 76-9-702(1) of the Utah Code.¹

¶ 3 After a bench trial, the juvenile court found beyond a reasonable doubt that A.T.'s conduct was intentional, that the conduct was "that he grabbed his crotch and that he rubbed it in a sexually explicit sort of way and of duration that is different than scratching himself," and that he did it "to offend [the victim] or to communicate an offensive meaning." The court also found that the conduct was of such a nature that it would "no doubt" cause offense to the victim, and that it did just that. The trial court declined to describe A.T.'s conduct as masturbation, but nonetheless found the conduct to be an act of lewdness prohibited by section 76-9-702(1). As a result, the juvenile court adjudicated the charge as true.²

¶ 4 A.T. appealed to the court of appeals, arguing that the statute under which he was adjudicated was unconstitutionally vague, or alternatively that his conduct did not fall within the definition of lewdness set forth in the statute. The State argued that A.T.'s conduct amounted to masturbation as prohibited by the statute. Although the juvenile court refused to decide whether A.T.'s conduct amounted to masturbation, the court of appeals, regarding whether A.T. masturbated, stated, "We agree with the trial court and cannot say that A.T.'s gesture amounted to masturbation."³ A.T. v. State, 2000 UT App. 124, ¶ 8, 34 P.3d 225. The court of appeals, however, went beyond the decision of the juvenile court to conclude, as a matter of law, that "A.T.'s gesture did not amount to masturbation." Id. at ¶ 15, 34 P.3d 225. The court of appeals then turned to whether A.T.'s conduct fell within the catchall phrase, "any other act of lewdness." The court of appeals held that A.T.'s conduct did not rise to the level necessary to be considered lewdness as proscribed by the statute because A.T.'s conduct was not of "equal magnitude of gravity" as the acts specifically set forth in the statute. Id. at ¶¶ 9-14, 34 P.3d 225. The court of appeals also rejected A.T.'s argument that the language "any other act of lewdness" was unconstitutionally vague. Id. at ¶ 15, 34 P.3d 225. The court of appeals therefore reversed the trial court's adjudication against A.T. The State seeks our review.

STANDARD OF REVIEW AND ISSUE RAISED ON APPEAL

¶ 5 On certiorari we review the decision of the court of appeals, not the decision of the trial court. State v. James, 2000 UT 80, ¶ 8, 13 P.3d 576. In doing so, we review for correctness, giving the court of appeals' conclusions of law no deference. Id. Only the State seeks our review, raising a single issue: Whether the court of appeals misinterpreted the lewdness statute to exclude A.T.'s conduct as neither masturbation nor as "any other act of lewdness."

ANALYSIS

¶ 6 In reaching the conclusion that A.T.'s conduct did not qualify as masturbation or another act of lewdness under section 76-9-702, the court of appeals relied upon the facts as found by the trial court. Because A.T. did not contest the facts as so found, both the court of appeals and this court accept them as correct in applying the statute.

¶ 7 The statute at issue, section 76-9-702, reads as follows:

(1) A person is guilty of lewdness if the person under circumstances not amounting to rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, or an attempt to commit any of these offenses, performs any of the following acts under circumstances which the person should know will likely cause affront or alarm to, on, or in the presence of another who is 14 years of age or older;

(a) an act of sexual intercourse or sodomy;

(b) exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area;

(c) masturbates;

(d) engages in trespassory voyeurism; or

(e) any other act of lewdness."

Utah Code Ann. § 76-9-702(1) (1996) (amended 2000) (emphasis added). In its opinion, the court of appeals addressed first the definition of masturbation as used in the statute, and finding it to be inapplicable to A.T.'s conduct, next considered the broader language of subsection (e) proscribing "any other act of lewdness." Here, to demonstrate that the language "any other act of lewdness" language was not unconstitutionally vague, the court of appeals applied the doctrine of ejusdem generis, comparing the phrase "any other act of lewdness" to the specifically enumerated acts of lewdness set forth in subsections (a) through (d) of the statute, and concluded that A.T.'s conduct did not meet that standard as a matter of law.

¶ 8 In reaching that conclusion, the court of appeals relied upon its own decision in State v. Serpente, 768 P.2d 994 (Utah Ct.App. 1989). Serpente involved a case of "mooning" that the court of appeals concluded did not rise to the level of an "act of gross lewdness," when compared with the specified acts listed in the relevant statute. Id. at 995-97 (defendant's "flash" or "moon" involved her clothed buttocks and no naked skin). Serpente discussed the doctrine of ejusdem generis, explaining that in order to give meaning to a general catchall phrase at the end of a statutory list of more specific proscribed acts, the court considers only those acts as prohibited as are "of equal magnitude of gravity" as those acts specifically set forth in the statute. Id. at 997. We disagree with the conclusion of the court of appeals regarding the standard and its result from applying the doctrine of ejusdem generis in this case.

I. THE COURT OF APPEALS' DECISION REGARDING MASTURBATION

¶ 9 We first address whether the court of appeals properly considered whether A.T.'s conduct constitutes masturbation. The trial court, concluding as it did that A.T.'s conduct constituted an "other act of lewdness" prohibited by the statute, did not reach the question of whether or not A.T.'s conduct also amounted to masturbation. Yet, the court of appeals accepted the State's invitation to decide the issue not reached by the trial court, and defined masturbation to the degree that it excluded A.T.'s conduct. It was error for the court of appeals to have decided the issue.

II. "ANY OTHER ACT OF LEWDNESS"

¶ 10 The court of appeals concluded that A.T.'s conduct was not "any other act of lewdness." We disagree. A.T. should have known his behavior would likely cause affront or alarm to the woman in the parking lot. To an objective viewer, A.T. conveyed the appearance of masturbation. Both the observing woman and nearby police officer identified A.T.'s action as masturbation, and the trial court found that "he grabbed his crotch and that he rubbed it in a sexually explicit sort of way. . . ." A.T. stood in public view, on the walk in front of the convenience store. He identified the person in the nearby car as a woman, and with the intent to offend his identified victim, clutched at his clothed genitals, rubbing them up and down in a sexually suggestive manner for ten to fifteen seconds like "someone playing with themselves," as the deputy sheriff described it. He then turned, laughed with his companion, again faced the woman, pointed at her, and repeated his actions in her view with the evident purpose of offending her. He achieved the result of offending the victim by conveying the appearance of masturbation. It is precisely this type of conduct that the legislature intended to prohibit in enacting the statute.

¶ 11 We conclude that A.T.'s conduct constitutes a deliberate simulation of masturbation, and is an "other act of lewdness" under the statute.

¶ 12 The court of appeals erred in its application of the doctrine of ejusdem generis to the language of subsection (1)(e), "any other act of lewdness." The doctrine of ejusdem generis applies in instances where an inexhaustive enumeration of particular or specific terms...