State v. Livingood

• Decision Date: 12 December 2018
• Docket Number: 28422
• Citation: 921 N.W.2d 492
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Daniel Anthony LIVINGOOD, Defendant and Appellant.
• Court: South Dakota Supreme Court

921 N.W.2d 492

STATE of South Dakota, Plaintiff and Appellee,

v.Daniel Anthony LIVINGOOD, Defendant and Appellant.

28422

Supreme Court of South Dakota.

ARGUED ON OCTOBER 2, 2018

OPINION FILED December 12, 2018

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.

[¶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 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 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 "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." 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 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...