This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).






State of Minnesota,





Freddie Lee Livingston,




Filed July 3, 2001


Amundson, Judge


Anoka County District Court

File No. K6-99-8533


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


††††††††††† Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Shumaker, Judge.


U N P U B L I S H E D† O P I N I O N


††††††††††† After being convicted of third-degree criminal sexual conduct, appellant argues that the district court erred in denying his motion for a new trial.† Appellant also contends that the complainantís testimony regarding sexual relations with appellant at work was too improbable and contained too many inconsistencies to support his conviction.† We affirm.


††††††††††† L.M., a fifteen-year-old girl, and appellant Freddie Lee Livingston, a thirty-three-year-old man, both worked at the Keys Restaurant in Spring Lake Park, Minnesota.† From December 1998 through February or March 1999, L.M. and appellant engaged in sexual intercourse several times in the handicapped bathroom of the restaurant.† After telling some of her friends, the Keys night manager, Patricia Koch, and her parents about the incidents, her parents notified the police.† Livingston was charged with third-degree criminal sexual conduct in violation of Minn. Stat. ß 609.344, subd. 1(b) (1998).† Before trial, the district court entered an order sequestering the witnesses and prohibiting them from discussing their testimony with other witnesses in the case.

††††††††††† After a court trial, Livingston was convicted of one count of third-degree criminal sexual conduct.† He then filed posttrial motions for amended findings and for a new trial based on an alleged violation of the sequestration order.† Livingston claims that Patricia Koch had heard L.M. and a friend outside the courtroom the day of trial, expressing their dislike of Livingston and conversing about unspecified matters.† During the motion hearing, the district court handled the matter pursuant to Schwartz v. Minneapolis Suburban Bus Co. and found that the witness nondiscussion order had not been violated.[1]† This appeal followed.



The district court in this case issued an order directing witnesses not to discuss their upcoming testimony with other witnesses, and not to inquire of other witnesses what counsel had talked to them about.† The Minnesota Rules of Criminal Procedure provide that ď[w]itnesses may be sequestered or excluded from the courtroom, prior to their appearance, in the discretion of the court.Ē† Minn. R. Crim. P. 26.03, subd. 7.† The United States Supreme Court has recognized nondiscussion orders as

a corollary of the broader rule that witnesses may be sequestered to lessen the danger that their testimony will be influenced by hearing what other witnesses have to say, and to increase the likelihood that they will confine themselves to truthful statements based on their own recollections.†

Perry v. Leeke,488 U.S. 272, 281-82, 109 S. Ct. 594, 600 (1989) (citations omitted).†

Livingston† argues that the district court abused its discretion by failing to grant a new trial in the interests of justice when the two witnesses spoke outside the courtroom.† Thepostconviction courtís decision to grant or deny a new trial will not be disturbed absent an abuse of discretion.† Wieland v. State,457 N.W.2d 712, 714 (Minn. 1990).

† The district court based its conclusion on its finding that the nondiscussion order was not violated.† We review the district court's findings under a clearly erroneous standard.† Robinson v. State,567 N.W.2d 491, 495 (Minn. 1997).† The record in this case lacks any factual basis to establish that L.M. and her friend discussed their testimony when they conversed outside the courtroom.† Both girls denied that they were talking about the case.† Patricia Kochís speculation that the witnesses must have been talking about their testimony in the courthouse bathroom before she arrived fails to establish that inappropriate conversations took place.

Even if a sequestration order has been violated, however, prejudice must be shown before this court will find reversible error.† See State v. Bergland,294 Minn. 558, 559, 202 N.W.2d 223, 224 (1972).† Before the district court need even consider the alleged violation of a sequestration order as grounds for a new trial, there must be an indication in the record that the statements made in violation of the order were made in an attempt to influence the testimony of other witnesses, or that the statements did, in fact, influence the testimony of other witnesses.† State v.Erdman,383 N.W.2d 331, 334 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986).† Here there was no indication that any statements were made for the purpose of influencing the testimony of future witnesses, or that any statements actually influenced witnesses.† The judge, who was able to observe the demeanor of the witnesses, found the testimony of L.M. and her friend to be credible.† Even if L.M. and her friend had expressed their hatred for Livingston to each other, her friend conceded in cross-examination that although she did not like Livingston, she had to work with him, indicating that she had made an independent judgment in the matter.† Further, the friendís testimony after the alleged conversations took place did not agree in all respects with the earlier testimony of L. M..† Therefore no actual prejudice to the defendant was shown, and the district court did not abuse its discretion in denying the defendantís motion for a new trial.


Livingston next claims that the evidence produced at trial is insufficient as a matter of law to sustain his conviction for third-degree criminal sexual conduct.† When reviewing a sufficiency of the evidence claim, this court views the evidence in the light most favorable to the verdict and assumes that the fact finder disbelieved any testimony conflicting with the result reached.† State v. Thomas,590 N.W.2d 755, 757 (Minn. 1999).† The verdict will be upheld if the fact finder, giving due regard to the presumption of innocence and the stateís burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty of the offense charged.† 757-58. Minor inconsistencies in a witnessís testimony do not automatically render the testimony false and do not provide a basis for reversal.† State v. Bakken,604 N.W.2d 106, 111 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).† Even where jurors believe that a witness has willfully testified falsely to a material fact, they are free to believe or disbelieve a witnessís testimony about other facts.† State v. Poganski,257 N.W.2d 578, 581 (Minn. 1977).

Livingston argues that the evidence is insufficient to support his conviction because he and L.M. did not work at the same time, and because no one saw them enter or leave the bathroom together.† He further points to a discrepancy between L.M.ís† testimony about the location of the first alleged sexual contact and the testimony of other witnesses as evidence that his conviction should not be based on L.M.ís testimony.† But, the record establishes that the work schedules of L.M. and Livingston overlapped, and that, after the incidents, they were careful not to be observed together.† Inconsistent testimony about the location of the first contact led the district court to conclude that the state did not bear its burden of proof on one of three counts of criminal sexual conduct.† This inconsistency, however, did not automatically render L.M.ís testimony on other matters false.† The court specifically found her testimony to be credible concerning her allegations of sexual intercourse with the defendant.† Further, the court considered as evidence several notes written from L.M. to Livingston about their relationship.† Despite Livingstonís denial of any substantive conversation or a relationship with L.M., he kept the notes in a box in his closet for over a year.† These notes, and his treatment of them, tend reasonably to support the district courtís determination.† There was ample evidence to support appellantís conviction.




[1] Although Schwartz hearings are typically used to investigate juror misconduct, 258 Minn. at 328-29, 104 N.W.2d at 303-04 (1960) (holding that once it becomes aware of the possibility of juror misconduct, the court may conduct a hearing to determine the existence of misconduct and whether it was prejudicial), it follows that they may also be used to explore allegations of witness misconduct.