#28310-a-GAS

2017 S.D. 86

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JOSHUA ALLEN BAUSCH, Defendant and Appellant.

* * * *

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.

* * * *

CONSIDERED ON BRIEFS

ON NOVEMBER 6, 2017

OPINION FILED 12/13/17
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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 firstdegree 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 
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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. 
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[¶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 
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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 
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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. 
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[¶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 by this Court in Bausch. He first 

argues that the circuit court erred when it failed to grant him a hearing on the 

merits of his motion. According to Bausch, he timely filed his motion for a new trial 

after the circuit court entered a judgment and sentence on remand. See SDCL 23A29-1. And, in his view, a motion for a new trial following remand by this Court was 

procedurally appropriate. Bausch relies on State v. Rolfe (Rolfe II), 2014 S.D. 47, 

851 N.W.2d 897. 

[¶16.] Although Bausch timely “served and filed [the motion for a new trial] 

not later than ten days after filing of the judgment,” see SDCL 23A-29-1, this case 

does not concern the timeliness of Bausch’s motion. Rather, this case concerns the 

circuit court’s jurisdiction to consider a motion for a new trial served and filed after 
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this Court remits a case to the circuit court. When remitter returns a case to the 

circuit court, we release our jurisdiction. State v. Piper, 2014 S.D. 2, ¶ 10, 842 

N.W.2d 338, 343. But remitter does not “spontaneously resurrect” the circuit 

court’s original jurisdiction. Id. Rather, “the scope of the circuit court’s jurisdiction 

[on remand] must conform to the dictates of our opinion.” Id. 

[¶17.] We concluded the same in Rolfe II. In State v. Rolfe (Rolfe I), we had 

remanded the case for the trial court to make specific findings related to the court’s 

decision to close the courtroom. 2013 S.D. 2, ¶ 32, 825 N.W.2d 901, 911. On 

remand, Rolfe moved for a new trial, asserting that a new trial was the only 

appropriate remedy to rectify the error identified in the first appeal. Rolfe II, 2014 

S.D. 47, ¶ 1, 851 N.W.2d at 899. The circuit court denied Rolfe’s motion, and we 

affirmed. We recognized that in Rolfe I, we had “considered what relief would be 

appropriate” to rectify the court’s error and did not order a new trial. Id. ¶ 10

(citing Rolfe I, 2013 S.D. 2, ¶ 32, 825 N.W.2d at 911). Because Rolfe’s motion for a 

new trial on remand was “an argument directly at odds with our decision and 

instructions on remand in Rolfe I,” we held that the court properly denied Rolfe’s 

motion. Rolfe II, 2014 S.D. 47, ¶ 11, 851 N.W.2d at 902. 

[¶18.] Likewise, Bausch’s motion for new trial is directly at odds with our 

opinion in Bausch and our denial of his petition for rehearing following Bausch. In 

Bausch, we resolved the error now alleged by Bausch—that the circuit court 

excluded relevant evidence—and concluded that Bausch was not entitled to a new 

trial. 2017 S.D. 1, ¶ 18, 889 N.W.2d at 410. And when Bausch petitioned this 

Court for a rehearing following our decision in Bausch—claiming that we applied an 
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improper legal test and standard of review on his first issue—we denied the 

petition. In our order denying Bausch’s petition, we concluded that “no issue or 

question of law or fact appear[ed] to have been overlooked or misapprehended.” 

[¶19.] In Piper, we recognized that “[t]he integrity of a hierarchical system of 

appellate review is not something to be lightly cast aside.” 2014 S.D. 2, ¶ 10 n.5, 

842 N.W.2d at 343 n.5. Therefore, “when the direction contained in the mandate is 

precise and unambiguous, it is the duty of the lower court to carry it into execution, 

and not to look elsewhere for authority to change its meaning.” Id. ¶ 11, 

842 N.W.2d at 343 (quoting West v. Brashear, 39 U.S. (14 Pet.) 51, 54, 10 L. Ed. 350 

(1840)). 

[¶20.] Here, Bausch clearly provides that we affirmed in part, reversed in 

part, and remanded. In particular, we affirmed Bausch’s four convictions and 

sentences for rape; we reversed Bausch’s convictions for sexual contact; and we 

remanded for the circuit court to vacate the sexual contact convictions and 

resentence Bausch on the rape convictions. 2017 S.D. 1, ¶¶ 29, 41, 889 N.W.2d at 

413, 415. “When the scope of remand is limited, the entire case is not reopened, but 

rather, the lower tribunal is only authorized to carry out the appellate court’s 

mandate.” In re Conditional Use Permit Granted to Van Zanten, 1999 S.D. 79, ¶ 13, 

598 N.W.2d 861, 864 (citing 5 Am. Jur. 2d Appellate Review § 787 (1995)). Because 

our limited remand only gave the circuit court authority to vacate Bausch’s 

convictions for sexual contact and to resentence Bausch, the court could not 

consider Bausch’s motion for a new trial. Indeed, “Article V of the South Dakota 

Constitution requires [the court’s] deference and clear adherence to this Court’s 
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remand instruction to constitutionally function.” State v. Berget, 2014 S.D. 61, ¶ 18, 

853 N.W.2d 45, 52. 

[¶21.] Because the circuit court carried out our remand directive when it 

vacated Bausch’s sexual contact convictions and resentenced Bausch on the four 

rape convictions, we affirm. 

[¶22.] GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and 

WILBUR, Retired Justice, concur.

[¶23.] JENSEN, Justice, did not participate.