#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 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


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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 23A-

29-1. 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.




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