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State v. Bausch

Supreme Court of South Dakota

January 4, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JOSHUA ALLEN BAUSCH, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON NOVEMBER 7, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE LAWRENCE E. LONG Judge

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

          MARK KADI of Minnehaha County Office of the Public Advocate Sioux Falls, South Dakota Attorneys for defendant and appellant.

          WILBUR, Justice

         [¶1.] A jury convicted Joshua Allen Bausch of four counts of rape in the first degree in violation of SDCL 22-22-1(1), and two counts of sexual contact with a child under 16 years of age in violation of SDCL 22-22-7. Bausch appeals the conviction, asserting many issues. We affirm in part, reverse in part, and remand.

         Background

         [¶2.] A.L., born March 25, 2005, lived with her grandmother, Ann, in Sioux Falls, South Dakota. A.L.'s step-grandfather, Tim, and 15-year-old aunt, Angela, also lived at the residence. Rebecca, Ann's niece, visited the residence on an evening in December 2012. Rebecca brought her three children and boyfriend, Joshua Allen Bausch. Rebecca had met Bausch four months prior and was living with him.

         [¶3.] While the other children slept in the living room, A.L. went to her bedroom when it was time for bed. Ann, Tim, Rebecca, and Bausch drank beer and played cards that night and retired in the early hours of the next morning. Rebecca and Bausch planned to sleep in Angela's bedroom. Sometime during the night, however, Bausch left the bedroom. Rebecca testified that she did not recall him leaving, although she stated that it was not unusual for him to do so at night. According to A.L., an individual entered her bedroom, but it was too dark for her to immediately identify the individual. She first thought it was Tim, who would sometimes apply salve to A.L.'s bottom when she forgot to do so herself. A.L. knew Tim would always wear a bandana at night because he had a lot of hair, and the individual who had entered her room did not have much hair. A.L. then recognized the man as Bausch. Bausch removed A.L.'s shorts and underwear and placed his finger inside of her genitals. Bausch told A.L. to remain quiet, and he left after A.L. rolled away and pulled up her shorts and underwear.

         [¶4.] A.L. entered the kitchen the following morning, where Ann, Tim, Rebecca, and Bausch were seated. A.L. asked Bausch why he had woken her up during the night. Bausch only shook his head in response. A.L. later described that she had felt "bad because [she] thought it was [her] imagination but then [she] just figured out he told a big lie."

         [¶5.] In March 2013, A.L. attended a family get-together at the Sheraton Hotel in Sioux Falls to celebrate both Easter weekend and her cousin Jackie's birthday. Four rooms were rented to accommodate the addition of extended family. Rebecca and Bausch reserved a room for themselves, while Rebecca's children stayed in a separate room. After swimming in the hotel's pool with the other children, A.L. fell asleep while playing a game on a phone. Although Ann, Tim, Angela, and A.L. planned to leave that evening, Ann decided to let A.L. stay in Rebecca's room while the others returned home because A.L. had fallen asleep there.

         [¶6.] Later, while Rebecca showered, Bausch woke A.L. while removing A.L.'s pants and underwear. He placed his finger, tongue, and penis inside her genitals. Bausch then asked A.L. if he had hurt her. When Rebecca exited the shower, Bausch had already returned to his bed. A.L. told Rebecca that she wanted to be taken to the room where the other children were. Rebecca noticed that A.L. "was crying a little bit like little kids do when they wake up in a strange place."

         [¶7.] On April 26, 2013, A.L.'s biological mother, Erica, visited Ann's house. While Erica was in the bathroom curling her hair in preparation for a family barbecue, A.L. asked her if Bausch would be at the event. Erica said that she did not think he would be and asked A.L. why A.L. wanted to know, observing that A.L. appeared nervous and scared. A.L. responded that Bausch told her not to tell. Erica persisted, and A.L. disclosed that Bausch had touched A.L.'s genitals. Erica, Ann, and Tim, as well as Erica's cousins Rosa and Jade, discussed what A.L. had said to Erica. Ann called law enforcement to report the incident.

         [¶8.] Ann took A.L. to Child's Voice the following Monday morning.[1] Dr. Nancy Free conducted a physical examination of A.L.; and Colleen Brazil, a forensic interviewer, spoke with A.L. about the incidents. According to Brazil, A.L. demonstrated the ability to recall sensory details "very well, " reducing Brazil's "concern regarding suggestibility or reliability."

         [¶9.] On May 29, 2013, the State filed a complaint charging Bausch with four counts of rape in the first degree in violation of SDCL 22-22-1(1), and two counts of sexual contact with a child under 16 years of age in violation of SDCL 22-22-7. On June 19, a grand jury issued an indictment. Bausch pleaded not guilty, and a jury trial commenced on March 17, 2015. On March 20, the jury found him guilty of all counts, and the circuit court entered a judgment of conviction. For the charges related to the December 2012 incident, Bausch received a 20-year sentence for one count of rape and a 15-year sentence for sexual contact, with both sentences running concurrently. For the charges related to the March 2013 incident, Bausch was additionally sentenced to 20 years for each of the three remaining counts of rape and 15 years for sexual contact, all to be served concurrently. The sentences for the 2013 convictions were ordered to be served consecutively to the sentences for the 2012 convictions.

         [¶10.] Bausch appeals, asserting five issues for our review:

1. Whether the circuit court abused its discretion in limiting cross-examination by excluding questions regarding statements A.L. made about self-harm.
2. Whether the circuit court erred in denying a judgment of acquittal on the two ...

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