State v. Gonderman

• Decision Date: 16 March 1995
• Docket Number: Cr. N
• Citation: 531 N.W.2d 11
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Norman Walter GONDERMAN, Defendant and Appellant. o. 940240.
• Court: North Dakota Supreme Court

Page 11

531 N.W.2d 11

STATE of North Dakota, Plaintiff and Appellee, v. Norman Walter GONDERMAN, Defendant and Appellant.

Cr. No. 940240.

Supreme Court of North Dakota.

March 16, 1995.

Mark Boening, Asst. State's Atty., Fargo, for plaintiff and appellee.

Alisha Ankers, Johnson Law Office, Fargo, for defendant and appellant.

VANDE WALLE, Chief Justice.

Norman Walter Gonderman appealed from a judgment of conviction based upon jury verdicts finding him guilty of four counts of gross sexual imposition. We affirm.

Gonderman was charged with engaging in sexual acts and having sexual contact with two minor children in violation of N.D.C.C. Secs. 12.1-20-03(1)(d) and 12.1-20-03(2)(a). Gonderman applied for indigent defense services and was represented at trial by court-appointed counsel. A jury found Gonderman guilty on all four counts, and he appealed.

On appeal, Gonderman asserts that the trial court erred in denying his request for additional public funds for a "nocturnal penile study" which, he contends, was essential to his defense. Throughout his prosecution, Gonderman maintained that he was impotent and had been incapable of having an erection for at least six years. The trial court initially granted Gonderman's request for up to $500 for a medical exam by an urologist. Gonderman thereafter requested $3,000 for a "nocturnal penile study" to support his contention that he was impotent and could not maintain an erection. ¹ The court denied Gonderman's request for additional public funds for that study, because Gonderman's "ability or inability to maintain an erection is not an element of the defense of these charges."

The authorization of public funds for expert assistance for an indigent defendant is a matter which lies within the discretion of the trial court and is reviewed under the abuse-of-discretion standard. United States v. St. John, 851 F.2d 1096 (8th Cir.1988); State v. Lesiak, 234 Neb. 163, 449 N.W.2d 550 (1989); State v. Walters, 426 N.W.2d 136 (Iowa 1988); State v. Red Star, 467 N.W.2d 769 (S.D.1991); State v. Volker, 477 N.W.2d 909 (Minn.App.1991); State v. Owens, 248 Kan. 273, 807 P.2d 101 (1991).

At trial, Gonderman presented testimony that the results of a less expensive, self-administered "snap-gauge test" supported his contention that he was impotent. ² Gonderman presented testimony that he attempted two snap-gauge tests, and after fitting the first snap-gauge device, he urinated and broke one of the bands. Gonderman introduced evidence that he obtained a second snap-gauge device with specific instructions not to urinate during the test, and the bands did not break during that test.

Gonderman asserts that the jury could have misconstrued his explanation about the first snap-gauge test and argues that he was forced to proceed at trial without the benefit of a "nocturnal penile study." He argues that

"[h]is compelling reason for requesting such testing is to prove his failure to have an erection, which is a key element of sexual gratification. While sexual gratification, or an erection, for that matter, is not necessarily an element of the crime of gross sexual imposition, it can be inferred from the act itself that the accused conducts him/herself in such a criminal manner for the purpose of experiencing pleasure. The most obvious sign of a male's sexual pleasure is an erection.

"Gonderman has not had an erection for at least 6 years. He needed to prove that to the jury in order to prove that he was not physically capable of experiencing any sexual pleasure from the acts that he was accused of. If he could not experience sexual pleasure from such abhorrent acts, then why would he do them?"

When a State brings criminal charges against an indigent defendant, it must take steps to ensure that the accused has a meaningful chance to present a defense. See, e.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Although a State need not provide an indigent defendant with all the tools that a wealthier counterpart may buy, it must provide an indigent defendant with the "basic tools of an adequate defense." Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400, 403 (1971). See State v. Valgren, 411 N.W.2d 390 (N.D.1987) [where indigent defendant had adequate alternatives to discovery depositions of police officers and eye witnesses to arrest, defendant was not denied access to raw materials integral to an effective defense].

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), a capital case, the United States Supreme Court held that when an indigent defendant makes a preliminary showing that mental capacity at the time of an alleged offense is likely to be a significant factor at trial, that defendant has a federal due process right to have the State provide access to a psychiatrist's assistance on that issue. Under Ake, supra, 470 U.S. at 77, 105 S.Ct. at 1093, indigent defendants do not have carte blanche to obtain expert assistance; instead, they are entitled to expert assistance necessary to afford " 'an adequate opportunity to present their claims fairly within the adversary system.' " See State v. Norman, 507 N.W.2d 522 (N.D.1993) [indigent defendant not entitled to a second psychiatric evaluation at public expense].

The underlying premise of Ake, supra, 470 U.S. at 74, 105 S.Ct. at 1091-92, is that the issue requiring expert assistance "is likely to be a significant factor at trial." The expert assistance must be necessary or relevant to issues involved in the trial so that the denial of that assistance would result in an unfair trial. See St. John, supra; Little v. Armontrout, 835 F.2d 1240 (8th Cir.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988); Lesiak, supra; Walters, supra; Volker, supra; Owens, supra.

Here, Gonderman requested additional public funding for expert assistance to prove that he was impotent and incapable of having an erection. Gonderman was charged under N.D.C.C. Sec. 12.1-20-03(1)(d) with engaging in a "sexual act" with two victims less than fifteen years old, and under N.D.C.C. Sec. 12.1-20-03(2)(a) with having "sexual contact" with two victims less than fifteen years old. Sections 12.1-20-02(3) and (4), N.D.C.C., define "sexual act" and "sexual contact":

"3. 'Sexual act' means sexual contact between human beings consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, or the mouth and the vulva; or the use of an object which comes in contact with the victim's anus, vulva, or penis. For the purposes of this subsection, sexual contact between the penis and the vulva, or between the penis and the anus or an object and the anus, vulva, or penis of the victim, occurs upon penetration, however slight. Emission is not required.

"4. 'Sexual contact' means any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires."

Under those definitions, whether or not a defendant is impotent, or can maintain an erection, is not an element of the offense of gross sexual imposition, nor is it a defense to the charge. State v. Drader, 374 N.W.2d 601 (N.D.1985) [gross sexual imposition statute does not require erection]. The issue of impotency and Gonderman's ability to maintain an erection was not a significant factor at his criminal prosecution for gross sexual imposition. Instead, the trial hinged on the credibility of the witnesses. We are not persuaded that the trial court's denial of additional public funds for a "nocturnal penile study" denied Gonderman a fair trial. We conclude that the trial court did not abuse its discretion in denying Gonderman's request for additional public funds for that study.

Gonderman argues that the trial court erred in refusing to allow him to offer testimony of his religious beliefs to prove that those beliefs rendered him incapable of committing the crimes.

During direct examination of Gonderman's wife, the following colloquy occurred:

"Q [Ms. Johnson] Does that church have very traditional beliefs?

"A [Mrs. Gonderman] Yes.

"MR. BOENING: Objection, relevance.

"THE COURT: Sustained.

"MS. JOHNSON: I would like to make an offer of proof on this.

"THE COURT: You may step out into the hall, please.

"(Continued in open court, out of the presence of the jury, the defendant being present with counsel:)

"MS. JOHNSON: Your Honor, for my offer of proof, if you would have allowed me to question Mrs. Gonderman on this line of questioning, you would find--or the evidence would prove to the jury that the church that these folks belong to is a very traditional one.

"They have attended it for 20 years. They do not believe in premarital sex. They do not believe in even couples who are unmarried coming to their church.

"They have some very, very staunch beliefs, which would certainly go against any of the behaviors that the State is putting forth. I believe that this type of basic structure of this church that these folks are involved with is very, very important to this case.

"THE COURT: Objection is sustained."

During direct examination of Gonderman's pastor, the following colloquy occurred:

"Q [Ms. Johnson] Is your church, Pastor, a very traditional one?

"MR. BOENING: Objection, relevance.

"THE COURT: Ladies and gentlemen, if you would step out in the hall for just a moment.

"(Continued in open court, out of the presence of the jury, the defendant being present with counsel:)

"THE COURT: The purpose of the question, counsel?

"MS. JOHNSON: Your Honor, again, under my offer of proof, one, it would go I think to the character of this witness, that it's a very traditional church. He is the pastor. The other is to show what the beliefs are. Mr. Gonderman's been a member of this church for 20 years.

"I would also like to go into that realm. Also, I believe that Mr. Gonderman has shared confidences with this pastor as well.

"T...