CONSIDERED ON BRIEFS ON MAY 23, 2016
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE GREGORY J.
J. JACKLEY Attorney General KELLY MARNETTE Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
A. RIBSTEIN of Ribstein & Hogan Law Firm Brookings, South
Dakota Attorneys for defendant and appellant.
On June 25, 2015, a jury convicted Timothy J. Bariteau of
sexual contact with a child under sixteen years of age in
violation of SDCL 22-22-7. Bariteau appeals his conviction
alleging the circuit court erred in refusing to grant his
motion for judgment of acquittal on the grounds of
insufficiency of the evidence. He also alleges that the
prosecutor engaged in misconduct by making a misstatement of
law during closing arguments, which Bariteau claims
constitutes plain error. We affirm.
In sixth grade, H.S. started attending youth group at
Morningside Abundant Life Church in Brookings, South Dakota.
She met Bariteau, the Church's worship pastor. As part of
his duties, Bariteau assisted with youth group and led music
at the Church. Bariteau and H.S. started communicating
through Facebook when H.S. was in seventh grade. H.S. was 14
years old during the relevant time frame. Bariteau was 37
years old. Initially, the conversations were innocuous.
Bariteau told investigators H.S. openly discussed with him
her sexual relationships with boys her age. Bariteau believed
she needed guidance and "allowed her to confide in
In the spring of 2013, the conversations became flirtatious.
Bariteau provided H.S. with his mobile phone number so she
could send text messages to him. The two also communicated
via Facebook. Bariteau admitted to investigators that the
flirtations were enticing and "felt good." He told
the investigators that he was unfamiliar with such attention
from females of any age and that "nobody had ever talked
to [him] like that." In the exchanged messages, H.S.
asked Bariteau to describe the things he would like to do to
her body. Bariteau recalled messaging H.S. that he wanted to
put her on his lap and run his hand up her leg. H.S. asked
Bariteau what he thought was the most beautiful part of her
body. He replied, "your butt." During this
exchange, Bariteau also told H.S. he would hug her if she
were there, pick her up off her feet, and squeeze her butt.
That same day, Bariteau and H.S. saw each other at Camelot
Park. Bariteau asked for a hug. H.S. testified that when they
hugged "he reached down and grabbed [her] butt."
Bariteau told investigators that, after he grabbed H.S.'s
butt, he sent H.S. a text message apologizing for his
Bariteau described to investigators additional interactions
he had with H.S. Their communications were sporadic and, when
their messaging became inappropriate, he attempted to stop
the contact. H.S., however, continued to contact him.
Bariteau also admitted that he had put his hand on H.S.'s
buttocks or leg on other occasions.
H.S. testified that the relationship with Bariteau became
more physical "[t]oward the middle of [her] eighth grade
year . . . . He started, you know, moving closer, trying more
things, that kind of stuff." During 2013 and 2014, H.S.
attended youth group services at the Church on Wednesday
evenings. The Church had an open sanctuary with an elevated
sound booth in the back. The sound booth contained the
control panel for the lights and music. The booth was large
enough for two persons to stand in the room without touching.
Before youth services, H.S. and other youth would play with
the controls in the sound booth and turn on the colored
lights in the Church.
H.S. testified that on several occasions Bariteau came into
the sound booth, stood directly behind her, and began
pressing his erect penis and groin against her buttocks. Both
were fully clothed. H.S. testified that Bariteau would
continue to press his groin against her buttocks until she
moved away or left the booth. H.S. testified that Bariteau
told her not to tell anyone about their contact. Bariteau
admitted to investigators that he was physically aroused on
at least a couple of these occasions.
The last physical contact between Bariteau and H.S. occurred
in April or May of 2014. H.S. was in the sound booth and
Bariteau came into the booth and stood behind her. He pressed
his groin and erect penis against her buttocks. H.S. tried to
leave the sound booth but Bariteau pulled her back. He hugged
her, grabbed her butt, and kissed her neck before they
separated. It is undisputed that Bariteau never touched
H.S.'s breasts, vagina, or anus during this incident or
during any of the previous incidents.
In July 2014, H.S. sent Bariteau a message through Facebook.
Bariteau told investigators that H.S. indicated that she had
a new mobile phone and asked for his phone number. Bariteau
gave his mobile phone number to H.S. and the parties began
texting and sending messages and photographs through
Snapchat. The communication
immediately became flirtatious, and as Bariteau told
investigators, the parties "ended up having a very
graphic conversation by the end of it." Bariteau said he
sent H.S. two photographs of himself grabbing his erect penis
through his shorts. Bariteau told investigators that he woke
up the next morning "freaking out." He said H.S.
messaged him throughout the day and he ignored her messages.
He claimed she then started sending him angry messages, which
he continued to ignore. Bariteau ultimately received a
message from H.S.'s boyfriend confronting him about his
conduct. Bariteau told investigators that he panicked and
told his wife about his actions. Bariteau then met with his
senior pastor and advised him about the situation. The senior
pastor contacted law enforcement to report the incident.
Investigators questioned Bariteau on July 17, 2014, and July
24, 2014. During the interviews Bariteau admitted that during
the April or May 2014 incident he pressed his erect penis
against H.S.'s buttocks for up to a minute and that he
was sexually aroused. Bariteau was indicted on October 16,
2014, pursuant to SDCL 22-22-7, for one count of sexual
contact with a child under sixteen years of age. A jury trial
was held on June 24-25, 2015. The State presented testimony
from H.S. and Agent Jeff Kollars from the South Dakota
Division of Criminal Investigation. The State introduced the
two recorded interviews with Bariteau into evidence.
At the close of the State's case in chief, Bariteau's
counsel moved for a judgment of acquittal alleging there was
insufficient evidence to sustain a conviction. Counsel argued
that the State did not prove the elements of sexual contact
because Bariteau did not touch H.S.'s breasts, genitalia,
or anus. The circuit court denied the motion. On appeal,
Bariteau alleges that the State committed prosecutorial
misconduct by misstating the law during closing arguments.
Bariteau's counsel, however, did not object to the
alleged misstatement at the time it was made. On June 25,
2015, the jury returned a guilty verdict. On August 18, 2015,
the circuit court sentenced Bariteau to twelve years in the
South Dakota State Penitentiary, with four years suspended.
Bariteau appeals. We restate his issues as follows:
1. Whether the circuit court erred by denying Bariteau's
motion for judgment of acquittal.
2. Whether the prosecutor committed prosecutorial misconduct
Bariteau argues that no rational jury could have
"reached a guilty verdict as the State failed to
introduce any evidence that Mr. Bariteau touched in any way
the breasts, genitalia, or anus of the minor child, and
therefore no sexual contact took place." He asserts that
the act of pressing his genitalia against H.S.'s buttocks
does not constitute sexual contact as the act "did not
put him into contact with her anus." Bariteau contends
that sexual contact is not concerned with what does the
touching. In his view, sexual contact requires his
touching of H.S.'s breasts, genitalia, or anus.
Bariteau argues that the phrase touching of is
exclusionary, meaning that touching ...