State v. Bausch, 28310

• Decision Date: 13 December 2017
• Docket Number: 28310
• Citation: 905 N.W.2d 314
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Joshua Allen BAUSCH, Defendant and Appellant.
• Court: South Dakota Supreme Court

905 N.W.2d 314

STATE of South Dakota, Plaintiff and Appellee,

v.Joshua Allen BAUSCH, Defendant and Appellant.

28310

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017

OPINION FILED December 13, 2017

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.

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 , ––– U.S. ––––, 138 S.Ct. 87, 199 L.Ed.2d 56 (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 motion for a new trial after a hearing on the merits.

Analysis

[¶8.] Before we address the merits of Bausch's current appeal, it is helpful to revisit Bausch's arguments made in his first appeal and our analysis in Bausch . In his brief for Bausch , he stated his first issue as: "The trial court erred by preventing the appellant from cross examining the alleged victim regarding suicidal ideations and self harm to establish his theory of the case." He then alleged that "[t]he trial court's ruling decision constituted an abuse of discretion, and yet also deprived the Appellant of his constitutional right to a fair trial, by precluding his ability to effectively cross examine the State's primary witness relating to the defense's primary theory."

[¶9.] In particular, Bausch argued that the evidence was relevant "to show a witness has a potential interest in the result, bias and motive to lie." He referred to his right to challenge witness credibility and quoted a United States Supreme Court case for his claim that his right to cross-examine included the right to bring into question the witness's interest and bias. See Davis v. Alaska , 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed. 2d 347 (1974). He claimed that excluding cross-examination to protect the juvenile witness "must yield to Constitutional protections accorded to criminal defendants per Davis ." Bausch also indicated that his trial counsel had relied on State v. Huber in objecting to the circuit court's decision to exclude the evidence. 2010 S.D. 63, 789 N.W.2d 283. He then claimed that under Huber , the circuit court's ruling prevented his "ability to cross examine fully" and his "pursuit of the self-harm statements [that] would have allowed full exposure of the depth of the alleged victim's interest to catch the attention of her mother and family." Bausch asserted that "the statements of self-harm were part of [his] (far more than tenuous) defense" and that he "had the right to present it."

[¶10.] Bausch concluded his argument on the issue by stating: "The trial court erred when it excluded evidence of self-harm statements which were part of [his] theory of defense. In doing so, it also denied [Bausch] his constitutional right to a fair trial by preventing full submission of the entire defense theory." He then asserted that the trial court's error in excluding the evidence "was not harmless error since the conviction was not based on overwhelming evidence." He referred to the weakness of the evidence in the case and argued that such evidence did not constitute overwhelming evidence of his guilt.

[¶11.] In Bausch's reply brief, he reiterated that the circuit court's ruling prevented him from inquiring into the victim's bias and interest and thus deprived him of his right to a fair trial. He again referred this Court to Davis and asserted that the circuit court's exclusion of the evidence constituted reversible error. In his view, the statements went to issues of the victim's motive, and by precluding him from inquiring on cross-examination about the victim's bias, the court denied him of due process and his right to a fair trial.

[¶12.] In this Court's decision in Bausch , we restated Bausch's first issue as: "Whether the circuit court abused its discretion in limiting cross-examination by excluding questions regarding statements A.L. made about self-harm." 2017 S.D. 1, ¶ 10, 889 N.W.2d at 408. We then held that "[t]he circuit court did not abuse its discretion by denying Bausch's request to cross- examine Ann [ (the grandmother) ] on statements made by A.L. regarding self-harm." Id. ¶ 13. We further held that even if the evidence were relevant, "Bausch has not demonstrated prejudicial error." Id.

[¶13.] We then addressed Bausch's claim that Huber controls. We concluded that Bausch "had numerous opportunities to present the theory of his defense." Bausch , 2017 S.D. 1, ¶ 16, 889 N.W.2d at 410. We said that "his inability to use the statements to cross-examine Ann did not preclude Bausch from either presenting his defense theory or responding to the State's case." Id. ¶ 18.

[¶14.] We also addressed Bausch's claim that under Davis , he had a right to expose a witness's potential bias. Id. 22. We distinguished Davis because "the failure to offer such evidence [in Davis ] precluded the defense from meaningfully raising the defense altogether," while here Bausch was able to raise his defense meaningfully. Id. We concluded the issue with the following statements:

As noted above, Bausch was able to establish a plausible theory to explain why A.L. might fabricate an account of rape. It was then left for the jury to decide whether to believe Bausch's theory. While Bausch states that he wished to "expose ... the depth of the alleged victim's interest to catch the attention of her mother and family," the testimony sought from Ann was not central to Bausch's defense.

Id. ¶ 23.

[¶15.] With the above summary of Bausch's arguments in Bausch and this Court's analysis in mind, we now address Bausch's claim that he is entitled to a new trial on the four counts of rape affirmed...