State v. Kirkpatrick, 54692

• Decision Date: 14 April 1980
• Docket Number: No. 54692,54692
• Citation: 45 Or.App. 899,609 P.2d 433
• Parties: STATE of Oregon, Appellant, v. Donald Eugene KIRKPATRICK, Respondent. ; CA 15501.
• Court: Oregon Court of Appeals

Page 433

609 P.2d 433

45 Or.App. 899

STATE of Oregon, Appellant, v. Donald Eugene KIRKPATRICK, Respondent.

No. 54692; CA 15501.

Court of Appeals of Oregon.

Argued and Submitted Feb. 15, 1980.

Decided April 14, 1980.

Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Robert T. Scott, Albany, argued the cause and filed the brief for respondent.

Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.

ROBERTS, Judge.

The state appeals from the order of the trial court granting defendant's motion to suppress evidence obtained in a search of defendant's house pursuant to a warrant issued on February 22, 1979. We reverse.

The search warrant was issued on the basis of information provided by two children who lived next door to defendant. The children were brother and sister, aged 11 and 9 respectively. They had complained on several occasions to their parents, who finally contacted police, about the conduct of defendant during the previous two years. They reported that defendant had frequently appeared in front of them nude or clad only in a bathrobe which he allowed to fall open to expose his genitals; that he had masturbated in front of them; and that he had touched each of them in the crotch. They also reported that defendant had shown them pictures of people engaging in sexual activity, including a picture of defendant and a young girl engaging in an act of oral sodomy and another picture of defendant kissing the breast of a female.

On the basis of the information provided by the children, a search warrant was issued for the pictures described above and other photographs of defendant and other persons engaging in sexual conduct. Defendant's house was searched.

Defendant was indicted on April 19, 1979, and was charged with sexual abuse in the first degree. A preliminary hearing had been held on March 6, 1979. The testimony of the children at the hearing was not entirely consistent with the information set forth in the affidavit upon which the search warrant was based.

Defendant made a motion to controvert the facts alleged in the affidavit and to suppress evidence seized in the search of defendant's house. The transcript of the children's testimony at the preliminary hearing was introduced to controvert the facts in the affidavit.

It is clear from the transcript of the suppression hearing and the contentions raised on appeal that defendant's motions to controvert and to suppress are directed to the time at which the photographs were seen by the children. Specifically regarding the photographs the affidavit stated:

"(The boy) also recalled being shown eight or nine photographs by Kirkpatrick, all of which depicted some type of sexual activity.

" * * * (The boy) stated he had been shown these photographs on at least two occasions in Kirkpatrick's home, but could not isolate the approximate time of either showing, however he did recall that on one of these occasions his sister * * * was with him in the trailer and they had been told by Mr. Kirkpatrick to go into Kirkpatrick's bedroom and when they did they observed the photographs spread out on the bed.

" * * *

"(The girl) also recalled being shown by Kirkpatrick several photographs, all of which depicted sexually (sic ) activity involving two people and one of which she remembered explicitly as depicting a young female with short hair sucking Kirkpatrick's penis. (She) said she had been shown these photographs in Kirkpatrick's residence on one occasion while she was alone with Kirkpatrick and that on another occasion she was with her brother * * *, and saw the photographs laying on Kirkpatrick's bed. She was unable to isolate during what period of time during the two years she and her brother have been visiting Kirkpatrick, that she had seen these photographs." (Emphasis supplied.)

At the preliminary hearing the boy testified that he had seen the pictures twice in 1977, but that the second time he saw them it was "close to '78." He testified that he believed his sister had been with him on both occasions but was not certain. The girl testified that she had...