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State v. Bausch

Supreme Court of South Dakota

December 13, 2017

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

          CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017

          APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE LAWRENCE E. LONG Judge, Attorneys for plaintiff and appellee.

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

          SEVERSON, JUSTICE

         [¶1.] 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.

         Background

         [¶2.] 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.

         [¶3.] 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.

         [¶4.] 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.

         [¶5.] 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.

         [¶7.] 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 merits.
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 ...

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