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State v. Bariteau

Supreme Court of South Dakota

August 3, 2016

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
TIMOTHY J. BARITEAU, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON MAY 23, 2016


          MARTY J. JACKLEY Attorney General KELLY MARNETTE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          RICK A. RIBSTEIN of Ribstein & Hogan Law Firm Brookings, South Dakota Attorneys for defendant and appellant.

          KERN, JUSTICE

         [¶1.] 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.


         [¶2.] 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 him."

         [¶3.] 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 inappropriate behavior.

         [¶4.] 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.

         [¶5.] 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.

         [¶6.] 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.

         [¶7.] 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.

         [¶8.] 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.[1] 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.

         [¶9.] 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.

         [¶10.] 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 requiring reversal.


         [¶11.] 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 ...

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