State v. Livingood

#28422-a-JMK
2018 S.D. 83

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DANIEL ANTHONY LIVINGOOD, Defendant and Appellant.

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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 Attorney for defendant
Sioux Falls, South Dakota and appellant.

MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

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ARGUED ON
OCTOBER 2, 2018
OPINION FILED 12/12/18
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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.

[¶3.] When they first met Livingood, E.G. was thirteen, O.G. was ten, and

M.G. was six. The three sisters slept together in the living room on the main floor

while their mother and father slept in the only bedroom. A single staircase without

a door separated Livingood’s quarters from the upstairs. As a result, the children

could see part of Livingood’s bed and T.V. from the top of the stairs and in the

kitchen when using the microwave.

[¶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
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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

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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 to acknowledge Livingood by

name, stating she did not know him. When questioned regarding her relationship

with the “neighbor,” she said all she knew was “sometimes he brings us candy.” At

first, she did not remember what her “neighbor” would do when he came over but

later stated that he would watch T.V. with Mother. She said she was not “that

angry” and had “no worries” but also admitted she did not like the neighbor because

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“he says naughty things” to “all of us,” including the “f-word” and the “a-word.”

When the police interviewed Livingood a second time on March 8, 2016, he told

Detective McClure that he was never alone with the children in the house and

admonished them for intruding on his space. Livingood denied that he touched

M.G. stating, “I never touched the[] girls and the[] girls never touched me.”

[¶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.”

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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 pornography on the

downstairs T.V. On cross-examination, O.G. confirmed she witnessed Livingood

behave inappropriately on multiple occasions but stated she was not sure whether

Livingood knew she could see him engaging in sexual behavior. She also stated she

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never saw his penis. M.G. also testified, describing for the jury the incident where

Livingood touched her vagina with his hand.

[¶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

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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 SDCL 22-22-24.3(1). The second concerned an activity that involved

nudity. See SDCL 22-22-24.3(2). Focusing primarily on O.G.’s testimony at trial,

Livingood argues that no reasonable jury could conclude he sexually exploited O.G.

He points to O.G.’s statements on cross-examination, in which O.G. testified she

never saw his penis and did not know whether Livingood was aware she could see

his activities.

[¶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 unfavorable

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evidence, ignoring the evidence within the record that “sustains a reasonable theory

of guilt[.]” Morgan, 2012 S.D. 87, ¶ 10, 824 N.W.2d at 101.

[¶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.”

1. In jury instruction 34, the judge informed the jury that “[i]n order to find the
defendant guilty, it is necessary for the State to prove beyond a reasonable
doubt the commission of a specific act or acts constituting that crime within
the period alleged. And, in order to find the defendant guilty, [it] must
unanimously agree upon the commission of the same specific act or acts
constituting the crime.”

2. Given the unique circumstances presented in child sexual abuse cases, we
have adopted an “either or” rule. See Muhm, 2009 S.D. 100, ¶¶ 32–34, 775
N.W.2d at 518–20. Under this rule, the State must either elect a single
offense, or if it does not do so, “the trial court should instruct the jury it must
find unanimously that the defendant was guilty with respect to at least one of
the charges in the duplicitous count.” Id. ¶ 32, 775 N.W.2d at 519.

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[¶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.

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[¶24.] Despite this, Livingood argues that the evidence was insufficient to

convict him of sexual exploitation because O.G. recanted her statements that

Livingood showed her pictures of his penis on his phone. During her 2015

interview, O.G. disclosed that Livingood showed her four pictures of his penis saved

on his phone. When questioned about this encounter at trial, however, O.G. could

not remember:

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 SDCL 22-22-1 (requiring penetration as a necessary element of

rape). During an interview at Child’s Voice, the child struggled to describe the

abuse, but disclosed several instances of penetration—one involving Brende

performing fellatio on him, another when Brende forced the child to put his penis in

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Brende’s butt, and the final involving Brende anally penetrating the child.3

[¶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.

3. While it may not be anatomically correct, we use the term “butt” because this
is the language the child used during his Child’s Voice interview and at trial.
See id. ¶ 3 n.2, 835 N.W.2d at 136 n.2.
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[¶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 showed her pictures of his penis on

his phone based on her faulty memory while testifying. Even if the jury drew that

conclusion, viewed in a light most favorable to the verdict, the State submitted

other evidence sufficient to sustain his convictions.

[¶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:

(1) Is harmful to minors;
(2) Involves nudity; or
(3) Is obscene.

SDCL 22-22-24.3.

[¶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

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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.] SDCL 22-22-24.3 criminalizes conduct by a person that “causes or

knowingly permits a minor to engage in an activity or the simulation of an activity”

that meets one of the three situations listed in the statute. In Livingood’s case, this

meant activities: (1) harmful to O.G. or (2) involving nudity. Livingood contends the

term engage is a transitive verb that must be accompanied by an object. He asserts

that the object of this verb is “activity.” Thus, Livingood argues that the statutory

language “causes or knowingly permits a minor to engage in an activity or the

simulation of an activity” requires active engagement in the sexual activity.

To hold otherwise, Livingood argues, would criminalize activities the legislature

intended to exclude from the statute due to its carefully crafted language.

Livingood asserts that because O.G. never claimed she interacted with Livingood

physically, verbally, or through eye contact, his convictions for sexual exploitation of

a minor must be overturned. The State, on the other hand, asserts that O.G.

“engaged in observing” Livingood’s masturbation, pornography, and nudity.

[¶33.] We agree with the State. By its plain language, SDCL 22-22-24.3 does

not require that O.G. actively participate in the acts to be exploited by them. “We

assume ‘that statutes mean what they say and that [l]egislators have said what

they meant.’” State v. Bariteau, 2016 S.D. 57, ¶ 18, 884 N.W.2d 169, 175–76

(quoting Fin–Ag, Inc. v. Pipestone Livestock Auction Mkt., Inc., 2008 S.D. 48, ¶ 56,

754 N.W.2d 29, 50). The legislature chose to include both the language “engage in

an activity” and the phrase “or the simulation of an activity.”

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[¶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

involved nudity. Thus, we reject the argument the legislature meant to limit

“engage” to only active participation.

[¶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 . . . .” SDCL 26-9-1. The definition of

abuse or neglect in this paradigm includes situations where a child “is subject to

sexual abuse, sexual molestation, or sexual exploitation by the child’s parent,

guardian, custodian, or any other person responsible for the child’s care[.]” SDCL

26-8A-2(8).

[¶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

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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.

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