State v. Bausch, 2017 S.D. 1

Victim A.L., born 2005, lived with grandmother and extended family; defendant Joshua Bausch was her grandmother’s niece’s boyfriend and stayed overnight at the residence in Dec 2012 and at a family hotel stay in Mar 2013.
A.L. reported two separate incidents: Dec 2012 (digital penetration while she was in bed at home) and Mar 2013 (digital, oral, and penile penetration in a hotel room while another adult showered).
A.L. disclosed the abuse in April 2013; Child’s Voice forensic interview and pediatric exam followed. The State charged Bausch with four counts of first‑degree rape and two counts of sexual contact with a child under 16.
Jury convicted Bausch on all counts; trial court sentenced him to concurrent terms for each incident group and ordered the 2013 sentences consecutive to the 2012 sentences.
On appeal Bausch raised five issues: exclusion of cross‑examination about victim statements of self‑harm, sufficiency of evidence on sexual contact counts, jury instructions, overall sufficiency of evidence for rape convictions, and Eighth Amendment/excessive sentence challenge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion of cross‑examination re: A.L.’s statements of self‑harm	Trial court properly excluded irrelevant/prejudicial evidence	Exclusion prevented presenting defense theory that A.L. sought attention and was suggestible	No abuse of discretion; exclusion not prejudicial and defense had other avenues to present theory
Denial of judgment of acquittal on sexual contact counts	Sexual contact is a separate offense; convictions supported by law	Sexual contact convictions duplicate rape convictions (double punishment)	Sexual contact convictions vacated as duplicative; remand for resentencing
Jury instructions on sexual contact (failure to define as non‑rape touching)	—	Instruction inadequate and prejudicial	Not reached (mooted by vacatur of sexual contact convictions)
Sufficiency of evidence for rape convictions	Evidence (victim testimony, forensic interview) supports convictions	Inconsistent testimony and lack of physical evidence negate opportunity/guilt	Evidence sufficient; judgment of acquittal properly denied
Eighth Amendment / sentencing discretion	Sentence within statutory limits but argued excessive given background	Sentence grossly disproportionate / abuse of discretion	No Eighth Amendment violation; no abuse of discretion by trial court

State v. Crawford, 729 N.W.2d 346 (S.D. 2007) (standard of review for evidentiary rulings and motions in limine)
State v. Huber, 789 N.W.2d 283 (S.D. 2010) (defendant’s right to present a defense when evidence has some foundation)
State v. Perovich, 632 N.W.2d 12 (S.D. 2001) (double jeopardy and sufficiency of victim testimony absent physical evidence)
State v. Brammer, 304 N.W.2d 111 (S.D. 1981) (sexual contact convictions may be vacated when touching is incidental to rape)
Davis v. Alaska, 415 U.S. 308 (U.S. 1974) (cross‑examination to expose witness bias is constitutionally protected)
State v. Rice, 877 N.W.2d 75 (S.D. 2016) (Eighth Amendment analysis for noncapital sentences; gross disproportionality test)