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State v. Gustafson

Court of Appeals of Oregon

November 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
RICHARD BRIDGEMAN GUSTAFSON, Defendant-Appellant.

          Argued and Submitted July 27, 2017

          Deschutes County Circuit Court 14FE0032 Wells B. Ashby, Judge.

          Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Richard Bridgeman Gustafson fled the supplemental brief pro se.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Powers, Judge, and Hadlock, Judge pro tempore.

         Case Summary:

         In this criminal case, defendant appeals from a judgment convicting him of, among other things, 21 counts of first-degree encouraging child sexual abuse. Defendant assigns error to the trial court's denial of his motion to suppress the evidence supporting those convictions, which was found on two computers seized pursuant to a search warrant. Defendant asserts, among other challenges, that the warrant was not supported by probable cause. Held: The affidavit provided probable cause to believe that evidence of sexual abuse would be found on defendant's computers.

         Affirmed.

         [300 Or.App. 439]POWERS, J.

         In this criminal case, defendant appeals from a judgment convicting him of 11 counts of first-degree sexual abuse, ORS 163.427; 21 counts of first-degree encouraging child sexual abuse, ORS 163.684; and one count of possession of cocaine, ORS 475.884. Defendant assigns error to the trial court's denial of his motion to suppress the evidence supporting his convictions for encouraging child sexual abuse, which was found on two computers seized pursuant to a search warrant.[1] Defendant asserts, among other challenges, that the warrant was not supported by probable cause.[2] We conclude that the affidavit provided probable cause to believe that evidence of sexual abuse would be found on defendant's computers. Accordingly, we affirm.

         The warrant at issue on appeal is the second warrant issued during the investigation of defendant. The relevant facts are those recited in the affidavit of Bend Police Officer Russell, which was submitted in support of the application for that warrant. See State v. Webber, 281 Or.App. 342, 343, 383 P.3d 951 (2016) (relevant facts are those recited in the affidavit).

         The affidavit recites information about allegations by four young girls that, during sleepovers at Acrovision Sports Center in Bend, defendant, a gymnastics coach at Acrovision, had touched them inappropriately. The first two victims disclosed the touching to their parents on January 1, 2014, shortly after coming home from a New Year's sleepover. [300 Or.App. 440] They were interviewed at the KIDS center, a child abuse intervention center, and recounted the following information. At the sleepover, defendant slept upstairs in the loft area of Acrovision with a group of around 12 children. He invited the victims to sleep upstairs. During the night, defendant pulled one victim out of her sleeping bag and pulled her on top of his chest. When she tried to move off of him, he pulled her back onto him, and he kissed the top of her head. He also lay down next to another victim and touched her under her clothing on her breasts and vagina.

         A few days later, the mother of the first victim made a recorded telephone call to defendant, during which he denied that he had slept in the loft area; he said that he had slept in his office, which was also upstairs at Acrovision. Less than an hour after the recorded telephone call, defendant called the first victim's mother back. He told her that the children had chosen where they slept during the sleepover. He also said that he had fallen asleep in the main area upstairs, not his office, and that there were no children there when he fell asleep. He said that, later, he had woken up surrounded by children and moved to his office. He also said, referring to the sleepovers, "We've done this for years."

         While collecting the victims' clothing and sleeping bags as evidence, Russell learned that one of the victims had smelled like men's cologne when she returned from the sleepover.

         Russell and another officer spoke with defendant, first at Acrovision and then at the police department, on January 8, 2014. Defendant said that approximately eight children had slept in the loft during the sleepover and that he had fallen asleep around 12:30 a.m. in the main area of the loft with no children around him. He woke up at 4:00 a.m. and found that there were eight or nine children sleeping in the area, at which point he moved to his office. Later in the morning, after 7:00 a.m., he went to ...


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