921 N.W.2d 492
S.D.2018Background
- In 2015 Livingood rented space in a house where the Gambu family (mother, stepfather, and three daughters E.G. (13), O.G. (10), and M.G. (6)) lived; he occupied the basement and shared common areas including the single bathroom and kitchen.
- The children later reported that Livingood exposed himself, masturbated where they could see him, watched pornography visible/audible to them, and (as to M.G.) digitally penetrated her during an incident.
- Child’s Voice forensic interviews (2015 and 2016) and police interviews were admitted at trial; Livingood sometimes admitted masturbating in the basement and watching pornography but denied touching the girls.
- A grand jury returned a 10-count indictment; several counts were dismissed pretrial. At trial Livingood was acquitted on charges involving E.G. and M.G., but convicted on three counts relating to O.G. (two counts of sexual exploitation of a minor and one count of contributing to the abuse/delinquency of a minor).
- Livingood moved for judgment of acquittal arguing insufficient evidence (both factual and legal), including that the statute requires active participation by the minor; the trial court denied the motions and the jury convicted.
- The Supreme Court of South Dakota reviewed denial of the judgment of acquittal de novo and affirmed the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support convictions | State: testimonial, forensic interviews, and Livingood’s admissions (masturbation, viewing porn) suffice for a rational jury to find exploitation and contribution to abuse | Livingood: evidence is factually and legally insufficient; O.G. recanted parts and did not testify she actively participated; statute requires the minor to "engage" (active involvement) | Affirmed: viewing evidence in light favorable to State, a rational juror could find guilt beyond a reasonable doubt |
| Use of prior interview statements after partial in-court inconsistency | State: Child’s Voice interviews admitted and corroborated other testimony and admissions | Livingood: recantation/memory lapse on one detail (photos) should negate use of that statement under Brende | Court: O.G.’s trial inability to recall photos was not a full recantation; other consistent evidence supported verdict |
| Statutory interpretation of SDCL 22-22-24.3 (“causes or knowingly permits a minor to engage in an activity”) | State: “engage” includes observing; causing/ permitting a minor to observe masturbation/pornography constitutes exploitation | Livingood: “engage” requires active participation by the minor; mere observation is insufficient | Court: plain language and common meaning of “engage” encompass involvement such as observing; statute does not require active physical participation |
| Effect on related contributing-to-delinquency conviction if exploitation reversed | State: contributing-to-abuse conviction independently supported by same conduct (masturbation, porn, exposure) | Livingood: if exploitation vacated, the ancillary contributing conviction should be vacated too | Court: independent evidence of acts that contributed to sexual abuse supports the contributing conviction; no reversal warranted |
Key Cases Cited
- State v. Brende, 835 N.W.2d 131 (S.D. 2013) (discusses when recantation undermines sufficiency of specific-sexual-act convictions)
- State v. Muhm, 775 N.W.2d 508 (S.D. 2009) (unanimity instruction/"either-or" rule in child sexual abuse prosecutions)
- State v. Plenty Horse, 741 N.W.2d 763 (S.D. 2007) (standard for reviewing sufficiency of evidence)
- State v. Brim, 789 N.W.2d 80 (S.D. 2010) (standard for de novo review of denial of judgment of acquittal)
- State v. Hernandez, 874 N.W.2d 493 (S.D. 2016) (indictment sufficiency: must follow statutory language and give fair notice)