State v. Bausch
2017 SD 1
| S.D. | 2017Background
- Victim A.L., born 2005, lived with grandmother Ann and others; Rebecca and her boyfriend Joshua Allen Bausch stayed as guests on two occasions (Dec 2012 and Mar 2013).
- A.L. reported two separate incidents where Bausch entered her sleeping area and performed sexual acts (digital penetration in Dec 2012; digital, oral, and penile penetration in Mar 2013).
- A.L. disclosed to her mother and family in April 2013; Child’s Voice forensic interview and medical exam followed; State charged Bausch with four counts of first-degree rape and two counts of sexual contact with a child under 16.
- Jury convicted on all counts in March 2015; sentences: concurrent terms for counts within each incident and the 2013 sentences to run consecutively to the 2012 sentences.
- Bausch appealed raising five issues: exclusion of cross-examination about A.L.’s statements of self-harm, sufficiency of evidence on sexual contact counts, alleged jury instruction error, overall sufficiency of evidence, and Eighth Amendment/excessive sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Exclusion of evidence about A.L.’s statements of self-harm | State argued such statements were irrelevant or more prejudicial than probative | Bausch argued statements were relevant to motive to fabricate and necessary to present defense theory | Court: No abuse of discretion; even if error, not prejudicial because defense had other avenues to present fabrication/attention-seeking theory |
| 2. Judgment of acquittal on sexual contact counts | State argued counts were legally distinct from rape and supported by evidence | Bausch argued sexual contact convictions were duplicative of rape convictions (double jeopardy/multiple punishment) | Court: Vacated sexual contact convictions as duplicative of rape convictions and remanded for resentencing |
| 3. Jury instruction on sexual contact | State: instructions adequate | Bausch: instruction failed to define sexual contact as touching not amounting to rape | Court: Declined to reach merits (issue moot after vacating sexual contact convictions) |
| 4. Sufficiency of evidence for rape convictions | State: testimony and forensic interview provided sufficient evidence | Bausch: lack of physical evidence, witness testimony conflicts, impossible timing | Court: Evidence sufficient; denial of judgment of acquittal affirmed |
| 5. Eighth Amendment / sentencing abuse of discretion | State: sentences within statutory limits and appropriate | Bausch: sentences grossly disproportionate and unduly harsh given background | Court: Sentences not cruel and unusual; within statutory limits and not an abuse of discretion |
Key Cases Cited
- State v. Huber, 789 N.W.2d 283 (2010) (defendant entitled to present a defense supported by law and some evidentiary foundation)
- Davis v. Alaska, 415 U.S. 308 (1974) (cross-examination to expose witness bias is constitutionally important)
- State v. Brammer, 304 N.W.2d 111 (1981) (sexual contact conviction reversed where touching was incidental to rape)
- State v. Perovich, 632 N.W.2d 12 (2001) (double jeopardy concerns where offenses overlap; convictions for mutually exclusive statutes cannot both stand)
- State v. Rice, 877 N.W.2d 75 (2016) (Eighth Amendment gross-disproportionality test and appellate review standards for noncapital sentences)