State v. Bausch, 2017 SD 86

Joshua Allen Bausch was convicted by a jury in 2015 of four counts of first-degree rape and two counts of sexual contact with a child; the trial court imposed multi-count concurrent and consecutive prison terms.
This Court in State v. Bausch reversed the two sexual-contact convictions, affirmed the rape convictions, and remanded for the circuit court to vacate the sexual-contact convictions and resentence on the rape counts.
On remand the circuit court vacated the sexual-contact convictions, reimposed prison terms on the four rape counts as directed, and awarded credit for time served.
Bausch then filed a motion for a new trial asserting: (1) the trial court had erred by excluding testimony about the victim’s statements of self-harm (which this Court had earlier said “may have strengthened” his defense), (2) this Court applied an improper legal standard on appeal, and (3) newly discovered evidence (a letter from a potential witness) supported a new trial.
The circuit court denied the post-remand motion for a new trial; Bausch appealed that denial. The Supreme Court affirmed, holding the limited scope of the remand precluded reopening the entire case or relitigating the appellate conclusions.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bausch)	Held
Whether the circuit court should grant a new trial after remand because excluded evidence would have helped the defense	The court had only authority to follow the remand; prior appellate resolution limited further relief	Excluded testimony about victim’s self-harm statements materially affected his defense and merited a new trial after resentencing	Denied — remand scope limited; Court already addressed exclusion and found no prejudicial error, so new trial improper
Whether an alleged improper legal standard applied on appeal justifies a post-remand new trial	Appellate mandate final; denial of rehearing stands; lower court must follow mandate	This Court used the wrong legal test on appeal, so the appellate disposition cannot preclude a new-trial motion after remand	Denied — appellate decision and denial of rehearing control; lower court lacks jurisdiction to relitigate issues outside the narrow remand
Whether newly discovered evidence (witness letter) warranted a new trial	The remand did not authorize reopening the entire case to evaluate new-trial grounds	The witness letter shows new evidence of innocence and supports a new trial	Denied — scope of remand did not permit consideration of a full new-trial claim inconsistent with the mandate

State v. Bausch, 2017 S.D. 1, 889 N.W.2d 404 (affirming rape convictions, reversing sexual-contact convictions, and remanding for limited resentencing)
State v. Rolfe, 2013 S.D. 2, 825 N.W.2d 901 (discussing appropriate appellate remedies on remand)
State v. Rolfe, 2014 S.D. 47, 851 N.W.2d 897 (affirming denial of new-trial motion on remand when motion conflicted with mandate)
State v. Piper, 2014 S.D. 2, 842 N.W.2d 338 (remand limits and lower court jurisdiction after appellate mandate)
State v. Huber, 2010 S.D. 63, 789 N.W.2d 283 (trial-court discretion on scope of cross-examination issues)
Davis v. Alaska, 415 U.S. 308 (constitutional right to cross-examination to expose witness bias)
State v. Berget, 2014 S.D. 61, 853 N.W.2d 45 (mandate compliance and appellate-remand principles)
West v. Brashear, 39 U.S. 51 (principle that lower courts must strictly follow appellate mandates)