CONSIDERED ON BRIEFS ON NOVEMBER 7, 2016
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE LAWRENCE E. LONG
J. JACKLEY Attorney General KELLY MARNETTE Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
KADI of Minnehaha County Office of the Public Advocate Sioux
Falls, South Dakota Attorneys for defendant and appellant.
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,
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.
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.
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."
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.
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."
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
Ann took A.L. to Child's Voice the following Monday
morning. 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."
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.
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 ...