CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE LAWRENCE E. LONG
Judge, Attorneys for plaintiff and appellee.
KADI of Minnehaha County Office of the Public Advocate Sioux
Falls, South Dakota, Attorneys for defendant and appellant
In State v. Bausch, we reversed Joshua Allen
Bausch's convictions for sexual contact and remanded the
case with direction that the circuit court vacate the
convictions and resentence Bausch on the remaining rape
convictions. 2017 S.D. 1, ¶ 29, 889 N.W.2d 404, 413,
cert. denied, 138 S.Ct. 87 (2017). After the circuit
court entered a new judgment of conviction and sentence as
directed by our remand, Bausch filed a motion for a new
trial. The circuit court denied the motion, and Bausch
appeals. We affirm.
On March 20, 2015, a jury convicted Bausch of four counts of
first- degree rape and two counts of sexual contact with a
child under sixteen years of age. The circuit court sentenced
Bausch to twenty years on one count of rape found to have
occurred in December 2012 and fifteen years on one count of
sexual contact found to have occurred in December 2012. The
court ordered the sentences to run concurrently. For the
counts concerning conduct that occurred in March 2013, the
court sentenced Bausch to twenty years for each of the three
rape convictions and fifteen years for the sexual contact
conviction. The court ordered the sentences to run concurrent
to each other but consecutive to the sentences imposed for
the December 2012 rape and sexual contact convictions.
Bausch appealed, challenging the circuit court's (1)
exclusion of evidence concerning statements the victim made
about self-harm, (2) denial of a judgment of acquittal on the
two sexual contact counts, and (3) jury instructions. Bausch
also argued that there was insufficient evidence to sustain
his convictions and that his sentence was cruel and unusual
in violation of the Eighth Amendment and an abuse of
discretion. We reversed Bausch's convictions for sexual
contact, remanded for the circuit court to vacate those
counts, and ordered the court to resentence Bausch.
Id. We affirmed the circuit court in all other
respects. Id. ¶ 41.
On January 5, 2017, the circuit court held a resentencing
hearing. At the conclusion of the hearing, the court vacated
the convictions for sexual contact. The court re-imposed
separate twenty-year sentences on the four rape convictions.
It ordered the sentences for counts two through four to run
concurrent to each other but consecutive to the sentence for
count one. The court gave Bausch credit for time served.
On January 9, Bausch moved for a new trial. He alleged that
an error of law occurred at his 2015 trial when the circuit
court erroneously excluded relevant evidence. As proof that
the court erroneously excluded relevant evidence, he quoted a
sentence in Bausch in which we wrote that the
victim's "statements about self-harm may have
strengthened Bausch's defense[.]" Id.
¶ 18. Bausch also asserted that an irregularity occurred
on appeal in Bausch because, in his view, this Court
applied an erroneous legal standard when reviewing his claim
that the circuit court erred when it excluded the evidence
related to the victim's statements about self-harm.
Bausch further requested a new trial based on newly
discovered evidence, namely a letter from a potential witness
indicating that she was at the home when the December 2012
incidents occurred, that she was up all night, and that she
did not see anything improper.
[¶6.] We note that following our decision in
Bausch, Bausch filed a petition for rehearing before
this Court in January 2017. Among other things, he requested
a rehearing because we rewrote his first issue statement and
allegedly applied the wrong legal standard on that issue. He
also claimed that we failed to assess the effect of the
excluded evidence on the witness in question and instead
erroneously assessed the effect of the excluded evidence on
the jury's verdict. We denied Bausch's petition.
On June 12, 2017, the circuit court denied Bausch's
motion for a new trial. Bausch appeals, and we quote his
issue statements below:
1. Whether a finding by an appellate court that excluded
evidence would have helped the defendant's case prior to
a final judgment and sentence justified granting the
appellant's motion for a new trial after a hearing on the
2. Whether a holding by an appellate court that utilized an
improper legal test and resulting standard of review
occurring prior to a trial court's final judgment and
sentence justified granting the appellant's ...