State v. Bausch, #27526

• Decision Date: 04 January 2017
• Docket Number: #27526
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. JOSHUA ALLEN BAUSCH, Defendant and Appellant.
• Court: South Dakota Supreme Court

2017 S.D. 1

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

#27526

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

CONSIDERED ON BRIEFS ON NOVEMBER 7, 2016

January 4, 2017

#27526-aff in pt & rev in pt-LSW

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 recognizedthe 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 sentencesrunning 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 sexual contact counts.

3. Whether the circuit court's jury instructions amounted to plain error.

4. Whether the State offered sufficient evidence to convict Bausch.

5. Whether the circuit court imposed a cruel and unusual punishment in violation of the Eighth Amendment and abused its discretion.

Decision

[¶11.] 1. Whether the circuit court abused its discretion in limiting cross-examination to exclude statements regarding self-harm.

[¶12.] "'[A] trial court's evidentiary rulings are presumed to be correct.' We review evidentiary rulings for abuse of discretion." State v. Crawford, 2007 S.D. 20, ¶ 13, 729 N.W.2d 346, 349 (quoting State v. Boston, 2003 S.D. 71, ¶ 14, 665 N.W.2d 100, 105) (citations omitted). "This applies as well to rulings on motions in limine." Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62. "An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against,reason and evidence." State v. Hayes, 2014 S.D. 72, ¶ 22, 855 N.W.2d 688, 675 (quoting Schieffer v. Schieffer, 2013 S.D. 11, ¶ 14, 826 N.W.2d 627, 633). "Under this standard, 'not only must error be demonstrated, but it must also be shown to be prejudicial error.'" State v. Perovich, 2001 S.D. 96, ¶ 11, 632 N.W.2d 12, 15-16 (quoting State ex rel. Dep't of Transp. v. Spiry, 1996 S.D. 14, ¶ 11, 543 N.W.2d 260, 263). "Error is prejudicial when, in all probability . . . it produced some effect upon the final result and affected rights of the party assigning it." State v. Hauge, 2013 S.D. 26, ¶ 24, 829 N.W.2d 145, 152 (quoting State v. Jucht, 2012 S.D. 66, ¶ 47, 821 N.W.2d 629, 640).

[¶13.] The circuit court did not abuse its discretion by denying Bausch's request to cross-examine Ann on statements made by A.L. regarding self-harm. The State filed a motion in limine on January 6, 2015, requesting that statements of self-harm made by A.L. be excluded from trial. The State argued that any such statements were not relevant, or in the alternative, that they were more prejudicial than probative. At the pretrial motions hearing, Bausch argued that statements A.L. made to Ann about self-harm were relevant to his defense, noting that the statements were made around the time the second rape occurred. The circuit court "struggle[d] with how the relevance works" and excluded the evidence. Bausch contends that the circuit court prevented him from putting forward his theory of defense (namely, that A.L. sought attention from Erica), and that the circuit court's failure to elaborate why it had found such statements not relevant precluded meaningful review on appeal. However, even if the circuit court abused itsdiscretion when it found the evidence not relevant, Bausch has not demonstrated prejudicial error.

[¶14.] "All relevant evidence is admissible," while "[e]vidence which is not relevant is not admissible." SDCL 19-19-402. "Evidence is relevant if: (a) It has any tendency to make a fact more or less probable than it would be without the evidence; and (b) The fact is of consequence in determining the action." SDCL 19-19-401. Evidence of a victim's past acts in a criminal case may be admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." SDCL 19-19-404(b). However, even relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." SDCL 19-19-403.

[¶15.] Bausch cites State v. Huber, 2010 S.D. 63, 789 N.W.2d 283, claiming that his right to present the theory of his defense was undermined by the circuit court's ruling. Huber involved a defendant convicted of shooting his wife. The State argued that...