STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. DANIEL ANTHONY LIVINGOOD, Defendant and Appellant.
#28422-a-JMK
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
OPINION FILED 12/12/18
2018 S.D. 83
ARGUED ON OCTOBER 2, 2018
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APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE ROBIN J. HOUWMAN Judge
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MICHAEL J. BUTLER Sioux Falls, South Dakota Attorney for defendant and appellant.
MARTY J. JACKLEY Attorney General
CRAIG M. EICHSTADT Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
KERN, Justice
[¶1.] A jury convicted Daniel Livingood of two counts of sexual exploitation of a minor and one count of contributing to the abuse, neglect, or delinquency of a minor. Livingood appeals, arguing the evidence was insufficient to support the verdict. We affirm.
Facts and Procedural History
[¶2.] In 2015, Livingood met the Gambu family, who came to America from a small country in eastern Africa. The family consisted of five members: Lagge Brimo (Mother); Kella Gambu (Stepfather); and their three minor daughters, E.G., O.G., and M.G. The Gambu family was homeless and searching for a rental property when they met Livingood, who lived in a small house on West Bailey Avenue in Sioux Falls and worked as a handyman for a local landlord. The Gambus decided to rent the main floor of that residence from Livingood, which included one bedroom, a living room, a kitchen, and the home‘s only bathroom. Livingood occupied the unfinished basement and shared the bathroom and kitchen in the main living area with the family.
[¶4.] After the family moved in, Livingood and Mother began a consensual sexual affair. The family lived in the house on West Bailey for approximately three months before the police arrested Livingood on March 9, 2015, on an unrelated offense. Shortly after his arrest, a neighbor and friend of the children, Chelsea Jorgensen, asked E.G. why the police arrested Livingood. E.G. mistakenly believed it was because Livingood behaved inappropriately toward her and her siblings so she told Jorgensen that he was a child molester. When Jorgensen and her roommate, Kirsten Bielan, questioned the children further, all three girls recounted instances in which Livingood sexually exploited or abused them. Bielan reported her concern about the children to the Department of Social Services. In April 2015, all three sisters were taken to Child‘s Voice, a medical evaluation center in Sioux Falls, for examination. They each made disclosures to forensic interviewers regarding various sexual acts Livingood committed against them while in the West Bailey house.
[¶5.] During O.G.‘s interview with Robyn Niewenhuis, O.G. reported several instances in which Livingood behaved inappropriately. O.G. stated that Livingood sometimes came upstairs naked from the waist down. She also recounted occasions when Livingood would masturbate using the family‘s lotion, sometimes on a striped couch upstairs and other times on his bed downstairs. She remembered that during one of these instances, Livingood put lotion on his penis and some squirted on the floor. When disclosing this information, O.G. accurately described his penis and hand motions to the interviewer and correctly identified the penis on an anatomical drawing. She also discussed Livingood‘s habit of watching pornography in the basement and explained that the sound would keep her and her sisters awake at night. She reported that on one occasion, Livingood showed her four pictures of his penis on his cell phone. She described his penis as “fat and brown.” When interviewed by law enforcement in June 2015 as part of the ongoing investigation, Livingood denied many of the allegations.
[¶6.] Sometime in the summer or fall of 2015, the family moved to a rental property on Spring Avenue. After his release from prison in approximately October 2015, Livingood began renting an apartment above the Gambus’ new residence. Although the rentals were separated, he frequently went inside the Gambu home as part of his work as a handyman for the property.
[¶7.] In early March 2016, about one year after E.G.‘s initial disclosure, M.G. told a teacher that Livingood had touched her. Consequently, all three children returned to Child‘s Voice for interviews. Kristin Odland interviewed M.G. on March 4, 2016. M.G. said Livingood touched her “private part” more than one time. One incident occurred when M.G. was sleeping with Mother. M.G. explained that Livingood came into the room and began having sex with Mother and, at some point, digitally penetrated M.G.
[¶8.] On March 7, 2016, Amanda Liebl interviewed E.G. and O.G. When Liebl asked O.G. whether she remembered her first visit to Child‘s Voice, O.G. recalled that it involved “a neighbor” but she refused
[¶9.] On March 24, 2016, a grand jury issued a 10-count indictment against Livingood, including two counts of first degree rape and two counts of sexual contact with a child under sixteen years of age for offenses committed against M.G. at the Spring Avenue residence. The remaining six charges occurred at the West Bailey house and included four counts of sexual exploitation of a minor, two involving O.G. and two concerning E.G., and two counts of contributing to the abuse, neglect, or delinquency of a child, one involving E.G., and the other involving O.G. During the pendency of Livingood‘s case, the State dismissed count two of the indictment, which charged Livingood with first degree rape of M.G.
[¶10.] On August 17, 2016, Livingood moved the circuit court for a bill of particulars, requesting that the State specify which of the alleged acts it intended to use to support each count of the indictment. At a subsequent hearing, the court denied Livingood‘s motion, finding the indictment sufficient because it “follow[ed] the language of the statutes and provide[d] fair notice to Livingood.” See State v. Hernandez, 2016 S.D. 5, ¶ 37, 874 N.W.2d 493, 502 (holding a sufficient “indictment must . . . contain the elements of the offense charged and fairly inform the defendant of the charge against him . . . .“). Therefore, the court held the State was “not required to elect which act [would] support which count at [that] time.” Nevertheless, the court observed that “[a]t trial, the State [would] be required to elect a single act for each count or request a unanimity instruction.” Four months later, the circuit court held another hearing to consider the State‘s notice of intent to offer hearsay statements. It admitted E.G., O.G., and M.G.‘s statements to the Child‘s Voice interviewers.
[¶11.] A five-day jury trial began on June 5, 2017. The State called all three children to the stand. E.G. testified that while living on West Bailey, she saw Livingood walk around upstairs half-naked more than once. She explained that Livingood would sometimes “rub his dick” at the top of the stairs and would watch pornography in the basement even though the children could see part of the T.V. and bed from the main floor. She also described one instance where Livingood came upstairs and touched her on the leg.
[¶12.] When O.G. took the stand, she acknowledged she knew Livingood. She remembered visiting Child‘s Voice only once, in 2015, when she lived with Livingood in the West Bailey house. She testified that while she lived there, she witnessed Livingood masturbating on more than one occasion. She explained that one time, he masturbated while sitting on the kitchen floor by the microwave. She also saw him masturbating on his bed downstairs while she prepared food in the kitchen. Additionally, she testified that she could see him watching
[¶13.] In addition, the State presented testimony from three Child‘s Voice forensic interviewers—Liebl, Niewenhuis, and Odland. The State entered the six recordings from the 2015 and 2016 forensic interviews into evidence. The State also called Special Agent Cunningham and Detective McClure to the stand and played the recording of Livingood‘s police interview with Special Agent Cunningham from June 2015 and Detective McClure in March 2016.
[¶14.] With the help of an interpreter, Mother testified as part of Livingood‘s defense. She said her children never told her that Livingood behaved inappropriately. Livingood also called Dr. Dewey Ertz, a psychologist with experience assessing child victims, to the stand. He criticized the interview techniques used by Child‘s Voice as suggestive. Livingood elected not to testify at trial.
[¶15.] After deliberation, the jury acquitted Livingood of all six offenses involving E.G. and M.G. However, it convicted Livingood of the remaining three counts committed against O.G.—two counts of sexual exploitation of a minor and one count of contributing to the abuse, neglect, or delinquency of a minor. Livingood appeals, raising as his sole issue whether the evidence was sufficient to support his convictions.
Analysis and Decision
[¶16.] Livingood argues the circuit court erred by denying his motions for judgment of acquittal because the evidence was both factually and legally insufficient to support the verdicts. We review a denial of a motion for judgment of acquittal de novo. State v. Brim, 2010 S.D. 74, ¶ 6, 789 N.W.2d 80, 83. We analyze “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d 763, 765. When studying the evidence, we do “not resolve conflicts in the evidence, assess the credibility of witnesses, or reevaluate the weight of the evidence.” State v. Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d 98, 101. “If the evidence, including circumstantial evidence and reasonable inferences drawn therefrom sustains a reasonable theory of guilt, a guilty verdict will not be set aside.” Id.
[¶17.] As specified in the indictment, Livingood‘s first sexual exploitation conviction involved an activity or simulation of an activity that was “harmful to minors.” See
[¶18.] When reviewing a factual challenge to the sufficiency of the evidence, we “accept that evidence, and the most favorable inferences to be fairly drawn therefrom, which will support the verdict[.]” State v. Buchholz, 1999 S.D. 110, ¶ 33, 598 N.W.2d 899, 905. Rather than viewing the evidence in the light most favorable to the verdict, however, Livingood‘s argument instead relies solely on
[¶19.] Even though the indictment did not specify which particular acts constituted the offenses charged,1 the circuit court gave the jury a unanimity instruction prior to deliberation.2 See State v. Muhm, 2009 S.D. 100, ¶ 32, 775 N.W.2d 508, 518–19. In light of the evidence presented, the jurors could have relied on several different instances described at trial when concluding Livingood sexually exploited O.G. on two occasions.
[¶20.] During trial, the jury considered O.G.‘s testimony, the statements made during her interviews at Child‘s Voice, and the content of Livingood‘s statements to law enforcement. In her 2015 Child‘s Voice interview, O.G. stated that Livingood would walk to the upstairs bathroom wearing only a long shirt without pants or underwear on. When speaking with Special Agent Cunningham, Livingood confirmed that it was possible that he went upstairs without pants on, and doing so “probably wasn‘t appropriate.”
[¶21.] Both at trial and in her 2015 interview, O.G. described instances when Livingood watched pornography on the T.V. downstairs even though she could see it when standing near the microwave upstairs. In the interview, she also disclosed Livingood‘s habit of masturbating in her presence. When the interviewer asked O.G. to describe his penis, she stated it was “brown” and explained his “hand goes up and down when he puts lotion on.” Testimony and Child‘s Voice interviews from both E.G. and M.G. also corroborated O.G.‘s allegations.
[¶22.] In Livingood‘s audio interview with Special Agent Cunningham, he admitted he masturbated in the basement, stating he was not “going to lie about that.” However, he denied masturbating on the main floor. Further, during his interview with Detective McClure, Livingood admitted that he watched pornography downstairs. He explained “the girls snuck down [stairs] sometimes” and may have seen him engaging in sexual activity. Livingood‘s statements to law enforcement regarding his pornography habit were consistent with O.G.‘s 2015 disclosures at Child‘s Voice when she explained Livingood would watch pornography in the basement and stated the sound would keep her and her sisters awake at night.
[¶23.] As the trier of fact, “the jury . . . resolve[s] the factual conflicts, weigh[s] credibility, and sort[s] out the truth.” State v. Guthmiller, 2014 S.D. 7, 27, 843 N.W.2d 364, 372. The jury determined that Livingood sexually exploited O.G. on two separate occasions. Upon our review of the record, we conclude there is a sufficient basis for a rational jury to find Livingood committed these crimes.
Q: [D]o you remember if [Livingood] ever showed you a picture?
A: No.
Q: Do you remember if he ever showed you his phone?
A: No.
Livingood argues this line of questioning at trial demonstrates O.G. recanted her statements regarding the pictures. Thus, Livingood contends that O.G.‘s disclosures in her Child‘s Voice interview regarding the photographs cannot be used to support his conviction. Livingood relies upon State v. Brende to support this argument. 2013 S.D. 56, ¶¶ 26–28, 835 N.W.2d 131, 142–43.
[¶25.] The defendant in Brende stood accused of several sex crimes, including two counts of first degree rape for sexually penetrating a young child. Id. ¶ 1, 835 N.W.2d at 135; see
[¶26.] When the child testified at trial, he recanted the allegation that he put his penis in Brende‘s butt. With reference to the second incident, the child stated that although Brende touched his butt with his penis, penetration did not occur. He did not testify regarding the incident involving fellatio. Accordingly, the only substantive evidence presented at trial establishing penetration arose from a video recording of the victim‘s Child‘s Voice interview, in which the child described Brende performing oral sex on him. Id. ¶ 23, 835 N.W.2d at 141. The jury found Brende guilty of two counts of first degree rape. Brende appealed, attacking the sufficiency of the evidence because the State presented only one act of penetration when his guilty verdict required two.
[¶27.] We vacated the verdict in part, holding no rational trier of fact could find him guilty of anal rape when the victim recanted the first allegation and denied anal penetration regarding the second. Critically, we explained that during trial, the State did not present any further evidence to corroborate the allegations of anal sex. Id. ¶¶ 27–28, 835 N.W.2d at 142–43. We also emphasized the manner in which the child recanted, explaining it did not suggest intimidation or coercion. Id. ¶ 28, 835 N.W.2d at 143. We upheld the second rape conviction because the Child‘s Voice video recording presented evidence of oral penetration unrefuted at trial and sufficient to support a single conviction of rape. Id. ¶ 29, 835 N.W.2d at 143.
[¶28.] But unlike Brende, which involved a recantation of a prior allegation in its entirety, O.G. merely stated that she could not remember a particular instance when Livingood showed her pictures of his penis. She did not deny the allegations that he sexually exploited and abused her. The jury, as the trier of fact, was free to doubt O.G.‘s previous statements that Livingood
[¶29.] In addition, Livingood argues the evidence was legally insufficient to sustain his convictions for sexually exploiting O.G. He argues as a matter of statutory interpretation, sexual exploitation of a minor requires the defendant to engage the minor in sexual activity. Because O.G. did not report that she directly participated in the sexual activity, Livingood submits that the State failed to establish the elements of the offense.
[¶30.] In South Dakota, sexual exploitation of a minor occurs if:
[T]he person causes or knowingly permits a minor to engage in an activity or the simulation of an activity that:
- Is harmful to minors;
- Involves nudity; or
- Is obscene.
[¶31.] The clearest indicator of legislative intent is a statute‘s plain language. Therefore, the starting point when interpreting a statute must always be the language itself. See Puetz Corp. v. S.D. Dep‘t of Revenue, 2015 S.D. 82, ¶ 16, 871 N.W.2d 632, 637. “[I]f the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.” Dale v. Young, 2015 S.D. 96, ¶ 6, 873 N.W.2d 72, 74.
[¶32.]
[¶33.] We agree with the State. By its plain language,
[¶34.] While “engage” is not statutorily defined, it is commonly understood to mean “[t]o employ or involve oneself; to take part in; to embark on.” Engage, Black‘s Law Dictionary (10th ed. 2014) (emphasis added). By masturbating and watching pornography in areas where O.G. could see him, Livingood certainly engaged O.G. in sexually exploitive behavior. These activities were both harmful to O.G. and
[¶35.] Finally, Livingood contends that if his convictions for sexual exploitation of O.G. are vacated for insufficient evidence, then his conviction for contributing to the delinquency of a minor should be as well. This is because, in his view, the jury presumably relied on the same facts when finding Livingood guilty of sexual exploitation of a minor as it did when it concluded Livingood contributed to her delinquency.
[¶36.] Contributing to the abuse, neglect, or delinquency of a child occurs when “[a]ny person who, by any act, causes, encourages, or contributes to the abuse, the neglect, or the delinquency of a child . . . .”
[¶37.] Similar to Livingood‘s sexual exploitation convictions, the record contains sufficient evidence to support the jury‘s conclusion that Livingood contributed to the abuse of O.G. The State established several instances from which the jury could have chosen to find Livingood guilty. Several witnesses testified that Livingood frequently masturbated near the children and watched pornography where they could see it. Any one of these acts provided sufficient support for the jury‘s determination that Livingood was guilty of contributing to the abuse of a minor. In light of this, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Plenty Horse, 2007 S.D. 114, ¶ 5, 741 N.W.2d at 765. The circuit court did not err by denying Livingood‘s motions for judgment of acquittal.
[¶38.] Affirmed.
[¶39.] GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices, concur.