In the Matter of the Civil Commitment of Joshua John Gomez Julie A. Lawyer, Assistant State's Attorney, Petitioner and Appellee
Joshua John Gomez, Respondent and Appellant
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Sonna M. Anderson, Judge.
A. Lawyer, Burleigh County Assistant State's Attorney,
Bismarck, ND, for petitioner and appellee.
J. Morrow, Grand Forks, ND, for respondent and appellant.
1] Joshua Gomez appeals from an order of civil commitment
after the district court determined he is a sexually
dangerous individual ("SDI"). Gomez argues the
district court erred in allowing the State to call as a
witness an expert appointed on his behalf. We affirm the
district court's order.
2] On July 13, 2015, the State petitioned for Gomez's
commitment as a SDI. On July 16, 2015, the district court
ordered an evaluation to be completed at the North Dakota
State Hospital ("State Hospital"). Gomez requested
an independent examination. After confirming Gomez was
indigent, the district court appointed Dr. Stacey Benson as
an independent examiner on Gomez's behalf. In December
2016, the district court held a treatment hearing and heard
testimony from Dr. Benson, the court-ordered evaluator from
the State Hospital, two evaluators privately retained by
Gomez, and Gomez.
3] As part of the discovery process, the State served Gomez
with a request for production of documents including a demand
that he produce "[a]ny and all reports and tests used by
any independent examiner." Gomez responded to this
request by providing copies of evaluation reports prepared by
the two evaluators that had been privately retained by Gomez.
No other form of response was provided. In particular, Gomez
did not produce a copy of the report prepared by Dr. Benson,
did not disclose any information regarding Dr. Benson, and
did not assert any objection to the discovery request.
4] Prior to the hearing, several examination reports were
filed with the district court. The State filed the report of
the evaluator who completed the examination pursuant to the
district court's order for an examination at the State
Hospital. Gomez filed the reports of his privately retained
evaluators. Gomez did not file the report of the independent
examiner appointed on his behalf, Dr. Benson.
5] The State subsequently sought an order for the release of
Dr. Benson's report. The district court ordered Dr.
Benson to release copies of her report to the district court,
the State, and Gomez. Dr. Benson's report of evaluation
was filed with the district court by the State.
6] At the hearing, the State called Dr. Benson as a witness.
Gomez objected, arguing Dr. Benson was retained only for the
purpose of trial preparation. Gomez asserted the State was
prohibited from calling Dr. Benson as a witness pursuant to
N.D.R.Civ.P. 26(b)(4)(B), which limits the scope of discovery
for experts retained for the purpose of trial preparation and
who are not intended to be called as a witness. Gomez
supported his argument by noting Dr. Benson was appointed
pursuant to N.D.C.C. § 25-03.3-12, which Gomez contends
provided him with the option to either call or not call an
independent examiner as a witness. Dr. Benson also refused to
testify without consent from Gomez or a court order,
asserting she was precluded from revealing confidential
information regarding Gomez. The district court ordered Dr.
Benson to testify after concluding N.D.C.C. § 25-03.3-13
provides for the admissibility of any testimony or reports of
7] Dr. Benson offered a diagnosis of antisocial personality
disorder and noted Gomez was rated at a high risk of
reoffending. The court-ordered evaluator from the State
Hospital testified she arrived at a diagnosis of antisocial
personality disorder as well. The court-ordered evaluator
from the State Hospital also testified she understood some of
Gomez's history differently than Dr. Benson, but arrived
at the same conclusion that Gomez was at a high risk of
reoffending. One of Gomez's privately retained evaluators
also diagnosed Gomez with antisocial personality disorder,
mild stimulant cocaine use disorder, and mild cannabis use
disorder. During the hearing, that same evaluator determined
Gomez omitted some information during his examination
regarding prior criminal offenses and amount of sexual
partners, which would have changed parts of his opinion about
Gomez's likelihood to reoffend. Gomez's second
evaluator testified he believed the State failed to meet its
burden, and he did not believe Gomez should have been
diagnosed with antisocial personality disorder.
8] On March 29, 2017, the district court entered an order for
commitment after it determined Gomez is a SDI. The parties
stipulated Gomez engaged in sexually predatory conduct, and
the district court determined the State met its burden on the
other required elements. Accordingly, the district court
ordered Gomez into the custody ...