No. 112 February 22, 2024 69
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JENNY LOVE CASSIDY,
Defendant-Appellant.
Douglas County Circuit Court
20CR18602; A178897
William A. Marshall, Judge.
Argued and submitted January 25, 2024.
Daniel C. Silberman, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Brad Mullen, Certified Law Student, argued the cause for
respondent. On the brief were Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Jon
Zunkel-deCoursey, Assistant Attorney General.
Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Affirmed.
70 State v. Cassidy
TOOKEY, P. J.
Defendant appeals a judgment of conviction for
one count of theft of services, ORS 164.125(1)(b).1 In her
first assignment of error, she contends that the trial court
erred when it denied her motion for a judgment of acquittal (MJOA) as to that charge. Regarding the denial of her
MJOA, defendant contends that the evidence was legally
insufficient for the jury to determine (1) that the benefits
derived as a result of her conduct were “commercial benefits” within the meaning of ORS 164.125(1)(b), and (2) that a
rental property in which she let her parents stay without the
owner’s permission constituted a “business facility” within
the meaning of ORS 164.125(1)(b). In her second assignment
of error, she contends that the trial court erred when it sustained an objection to defendant’s question to the manager of
the rental property concerning circumstances under which
the manager “would refuse to rent to somebody.” We affirm.
BACKGROUND
Since 2010, R, who lives in Florida, has managed
a home in Elkton, Oregon, as a short-term vacation-rental
property. R’s father had the home built in 1986, and it is currently owned by R’s mother’s trust. R uses the property for
her own vacations on occasion, as does her brother, who lives
in Illinois. The property is stocked with some food supplies,
like sugar, that guests can use.
R advertised the property as being available as a
vacation rental on the internet, on a particular website,
which she chose because it allowed her to maintain control
over booking and reservations. R’s practice was to personally speak with each guest prior to their stay at the Elkton
property to personally “vet” them, and she also personally
collected their fees and deposit. During defendant’s trial,
R explained that she spoke to each guest prior to their
stay because “it’s our family home and that’s the way I do
1
ORS 164.125(1)(b) provides that a person commits theft of services if:
“Having control over the disposition of labor or of business, commercial
or industrial equipment or facilities of another, the person uses or diverts
to the use of the person or a third person such labor, equipment or facilities
with intent to derive for the person or the third person a commercial benefit
to which the person or the third person is not entitled.”
Cite as 331 Or App 69 (2024) 71
business,” but that she would not refuse to let someone rent
the property merely because she did not know them “very
well.” R also paid taxes based on the income that was produced from charging guests to stay at the property. The
Elkton property was usually “booked” from May through
September, with reservations “dwindle[ing] off” after
September.
R employed two individuals in connection with the
Elkton property: (1) defendant, whom R paid $85 to clean
the property after each guest stayed; and (2) a caretaker,
who mowed the lawn, “looked in on” the house, and acted as
a “second set of eyes” for R.
In August 2019, defendant raised with R the possibility of defendant’s parents staying at the property.
Specifically, R and defendant discussed the possibility of
defendant’s parents staying at the property for free and
defendant cleaning the house for free after their stay. R
informed defendant that August was a very busy time of
year and asked defendant to provide her with some dates in
the future, but defendant never did.
Nevertheless, in early 2020, defendant allowed her
parents to stay at the Elkton property without R’s permission or knowledge, and defendant’s parents gave defendant
$100 for a cleaning fee. Defendant had also once previously
allowed her parents to stay at the property without R’s permission or knowledge.
While defendant’s parents were staying at the
Elkton property, R, who was unaware of their stay, asked
the caretaker to check on the home because the electricity
bills had been higher than usual. Upon discovering that
defendant’s parents were staying in the home, R called law
enforcement personnel.
As a result of her conduct, the state charged defendant
with one count of theft of services under ORS 164.125(1)(b).
Specifically, the state alleged that defendant, “having control over the disposition of business facilitates, to wit: vacation rental property, did unlawfully and knowingly divert to
the use of [defendant’s mother] and / or [defendant’s father]
said facilitates of a value of $100 to $1,000 with intent to
72 State v. Cassidy
derive a commercial benefit from [R] to which the defendant
was not entitled.”
At trial, defendant asked R to “elaborate on some
circumstances in which you would refuse to rent to somebody.” The state objected on the basis of relevance, and
defendant responded “I’m trying to establish basically
whether or not this place is open for rent, or if it’s kind of a
family home that, that vacation guests sometimes stay in.”
The trial court sustained the state’s objection.
Then, at the close of the state’s evidence, defendant
moved for a judgment of acquittal, contending that the evidence was legally insufficient to support a conviction for theft
of services. In support of that contention, defendant raised
three arguments: that (1) “the property involved is not commercial in nature”; (2) the case is “civil not criminal”; and (3)
“there is no evidence of the specific intent required to convict
on a theft of services charge; intent to avoid payment for services.” The trial court denied defendant’s MJOA, and a jury
convicted her of theft of services under ORS 164.125(1)(b).
ANALYSIS
As noted, in her first assignment of error, defendant challenges the trial court’s denial of her MJOA on two
grounds. First, she contends that the evidence was legally
insufficient to prove that the benefits derived as a result of
her conduct—which she identifies as allowing “family members to stay at a third party’s property for which [defendant]
provide[d] cleaning services without the owner’s express
consent,” and accepting “a $100 fee for cleaning the property”—were “commercial benefits” within the meaning of
ORS 164.125(1)(b). Second, that the evidence was legally
insufficient to prove that she diverted use of a “business
facility” within the meaning of ORS 164.125(1)(b).
“In reviewing the trial court’s denial of an MJOA,
we view the facts in the light most favorable to the state,
drawing all reasonable inferences in the state’s favor.” State
v. Leake, 325 Or App 1, 3,
527 P3d 1054, rev den,
371 Or 476
(2023). “Where a trial court’s denial of a motion for judgment
of acquittal involves a question of statutory interpretation,
we review that interpretation for legal error.” State v. Ritter,
Cite as
331 Or App 69 (2024) 73
280 Or App 281, 285-86,
380 P3d 1160 (2016). “Ultimately,
we review the trial court’s denial of a motion for judgment
of acquittal to determine whether, after viewing the facts in
the light most favorable to the state, a rational trier of fact
could have found the essential elements of the crime proved
beyond a reasonable doubt.”
Id.
As an initial matter, we conclude that the first
ground upon which defendant challenges the trial court’s
denial of her MJOA is not preserved.2 “The general rule is
that claims of error that have not been raised in the trial
court will not be considered on appeal.” State v. Parkins, 346
Or 333, 338,
211 P3d 262 (2009). “The question of whether
a party has preserved an argument inevitably will turn on
whether, given the particular record of a case, the policies
underlying the rule of preservation have been served.” State
v. Delaney,
314 Or App 561, 574,
498 P3d 315 (2021), aff’d,
370
Or 554,
522 P3d 855 (2022) (internal quotation marks omitted). “The primary purposes of the preservation rule are to
allow the trial court to consider a contention and correct or
avoid any error, to allow the opposing party an opportunity
to respond to a contention, and to foster full development
of the record.” State v. Lulay,
290 Or App 282, 289,
414 P3d
903, rev den,
363 Or 283 (2018).
In the context of a motion for a judgment of acquittal, “an objection as to the legal insufficiency of evidence to
prove a claim on one theory does not have the effect of preserving all other possible theories of insufficiency; rather,
parties must explain to the court and opposing party a
specific reason for the asserted legal insufficiency.” State v.
Murphy, 306 Or App 535, 539,
475 P3d 100 (2020), rev den,
367 Or 559 (2021) (internal quotation marks omitted); see
also State v. Reyes-Castro,
320 Or App 220, 228,
511 P3d
1115, rev den,
370 Or 472 (2022) (“An MJOA must state the
specific theory on which the state’s proof was insufficient.”).
As noted, on appeal, the first ground upon which
defendant challenges the trial court’s denial of her MJOA is
that the evidence was legally insufficient to prove that the
2
The state does not dispute preservation, “but we have an independent obligation to assess preservation, regardless of what position the parties take.” State
v. Taylor, 323 Or App 422, 427 n 3,
523 P3d 696 (2022).
74 State v. Cassidy
two benefits derived as a result of her conduct—i.e., allowing
“family members to stay at a third party’s property for which
[defendant] provide[d] cleaning services without the owner’s
express consent,” and accepting “a $100 fee for cleaning the
property”—were “commercial benefits” within the meaning
of ORS 164.125(1)(b). Defendant contends that those benefits
are not “commercial benefits” because neither “constitutes a
gain or advantage regarding the exchange of buying and
selling commodities at scale” but are instead merely “personal benefits.” As defendant sees it, a person violates ORS
164.125(1)(b) “by diverting a business’s facilities or labor for
the person’s own commercial business purposes, not just for
a personal benefit (whether financial or otherwise).”
In contrast, in the trial court, defendant moved for
a judgment of acquittal on three grounds—namely, that
(1) “the property involved is not commercial in nature”;
(2) the case is “civil not criminal”; and (3) “there is no evidence of the specific intent required to convict on a theft of
services charge; intent to avoid payment for services.”
Regarding the first of those grounds—that the
property involved was not commercial in nature—pointing
to the definition of “commercial property” in ORS 105.850,3
defendant argued that the Elkton property was not a “commercial property” because the evidence was insufficient to
show that R operated the property “with the primary purpose of generating rental income.” As defendant saw it, the
legislature “clearly meant to protect businesses like hotels
and cab services from people evading payment because they
are commercial and held open to the public for the purpose
of generating income” and that the Elkton property was
“empty much of the year,” had “a select few guests that stay
occasionally,” and that those guests were “carefully vetted”
by R. Thus, defendant argued that because R did not “operate her [Elkton property] primarily for commercial gain”
she was “not entitled to protection under ORS 164.125,” and
3
ORS 105.850 provides that as used in certain statutes that concern a right
of action when a city or mass transit district restricts use of the street traffic land
immediately adjacent to a sidewalk abutting commercial property, “ ‘commercial
property’ means land and improvements used in a business operated thereon for
the production of income, one of the principal aspects of which is the storing of
motor vehicles or the providing of lodging to travelers using private conveyances.”
Cite as 331 Or App 69 (2024) 75
the case “should be dismissed because the legislature did
not contemplate a noncommercial property owner … being
able to subject someone to criminal liability under ORS
164.125.”
Regarding the second ground for defendant’s
MJOA in the trial court—that the case was civil in nature,
not criminal—defendant argued that she was “a contract
employee [who] exceeded the scope of her license to access
[R’s] property,” which is a “tort, not a crime.”
Finally, regarding the third ground for defendant’s
MJOA in the trial court—that there was “no evidence of
the specific intent required to convict on a theft of services
charge; intent to avoid payment for services”—defendant
contended that there was no evidence that she “had the
intent at any point to avoid payment for services or even
that she understood payment would be required,” and, in
any event, “lodging at the [Elkton property] is not a service
because the [Elkton property] is not commercial in nature.”
In our view, none of the arguments defendant made
in the trial court raised the issue of whether the benefits
received were “commercial benefits” within the meaning of
ORS 164.125(1)(b) in a manner sufficient to serve the policies underlying the rule of preservation. Defendant’s argument on appeal concerning the meaning of “commercial benefit” under ORS 164.125(1)(b) raises the issue of the nature
of the type of benefit a defendant must intend to derive to
be guilty of theft of services under ORS 164.125(1)(b), but
that is an issue that was not presented by defendant in her
MJOA. Instead, as explained above, in her MJOA, defendant
argued that the property itself was not commercial in nature
insofar as it was not operated primarily for financial gain.
We understand that argument to be akin to her argument
on appeal that the property itself is not a “business facility”
under ORS 164.125(1)(b); both her “commercial property”
and her “business facility” arguments rely on the same
evidence and assert that the Elkton property does not fall
within the statute, because it was not primarily operated for
a profit. Put another way, we understand her “commercial
property” argument in the trial court to have been directed
76 State v. Cassidy
at the “business facility” element of ORS 164.125(1)(b)
not the “commercial benefit” element.
In reaching our conclusion regarding preservation,
we also highlight that, prior to defendant’s MJOA, the parties had discussed jury instructions and agreed on a definition of “commercial benefit” for those purposes—namely,
“[c]ommercial benefit includes any economically quantifiable benefit that arises from access to or use of the business
facility.” That jury instruction was relied on by the state in
responding to defendant’s argument this is a “civil matter
and not a criminal one.” In advancing her MJOA arguments
in the trial court, defendant could have argued that “commercial benefit” meant something different from the definition that she had previously agreed to for the purposes of
jury instructions; she did not. It was incumbent on her to do
so to preserve the issue she now raises on appeal.
In short, defendant’s motion for a judgment of
acquittal in the trial court would not have put the trial
court or the state on notice that, in her view, the evidence
was legally insufficient to establish that the benefits that
she received—allowing “family members to stay at a third
party’s property” and accepting “a $100 fee for cleaning the
property”—were “commercial benefits” within the meaning
of ORS 164.125(1)(b). Cf. State v. Drown, 245 Or App 447,
459,
263 P3d 1057, rev den,
351 Or 401 (2011) (preservation
rule satisfied where “defendant’s motions for judgments of
acquittal at the close of the state’s case-in-chief put the state
and trial court on notice of the issue that the state’s evidence regarding her conduct … was insufficient to establish that she had withheld necessary and adequate physical
care for each of the children”). As such, defendant’s MJOA
did not provide the trial court with the opportunity to avoid
the asserted error. Lulay,
290 Or App at 289 (one purpose of
the preservation rule is to “allow the trial court to consider
a contention and … avoid any error”).
Accordingly, because defendant failed to preserve
for appellate review the argument that the evidence was
legally insufficient to prove that allowing “family members
to stay at a third party’s property” and accepting “a $100
fee for cleaning the property” were “commercial benefits”
Cite as 331 Or App 69 (2024) 77
within the meaning of ORS 164.125(1)(b), and she does not
ask for plain-error review, we do not address the merits of
that argument. Murphy,
306 Or App at 539.
We next turn to defendant’s argument that the
evidence was legally insufficient to prove that she diverted
use of a “business facility” within the meaning of ORS
164.125(1)(b).4 In defendant’s view, a “business facility” is
“something built, installed, constructed, or established for
the purpose of (or to facilitate) engaging in the economic
exchange of buying and selling commodities or services.”
As defendant sees it, the trial court erred in denying her
motion for a judgment of acquittal, because the Elkton property was not “established to perform or facilitate open economic exchange” and was not “primarily engaged in that
function,” and was, therefore, “not a ‘business facility’ under
ORS 164.125(1)(b).” In advancing that argument, defendant
contends that the Elkton property “was barely advertised
publicly,” “was only occasionally rented out to-pre-vetted
guests” who had “an established relationship with [R],” and
“was generally empty or reserved for private familial use.”
The state responds that a “business facility” under
ORS 164.125(1)(b) “is something which promotes the ease
of an operation carried out for the purpose of profit.” As
the state sees it, a “vacation rental used to generate profit”
qualifies as a “business facility” under ORS 164.125(1)(b).
Further, in the state’s view, “the record contained ample evidence of R’s business practices—it was advertised, incurred
costs, generated profit, and employed staff …—that established that her rental was a business facility. “
The issue whether the Elkton property qualifies as
a “business facility” within the meaning of ORS 164.125(1)
(b) requires, as an initial matter, that we interpret that
phrase. In construing statutes, we seek to “ascertain the
legislature’s intentions by examining the text of the statute in its context, along with relevant legislative history,
and, if necessary, canons of construction.” State v. Cloutier,
351 Or 68, 75,
261 P3d 1234 (2011). At the outset, we note
that the question before us is not the outer contours of what
4
The parties agree that, as charged, the state had to prove that the rental
property constituted a “business facility” under ORS 164.125(1)(b).
78 State v. Cassidy
constitutes a “business facility” under ORS 164.125(1)(b),
but only whether that term encompasses the Elkton property, when viewing the evidence presented at trial in the
light most favorable to the state.
ORS 164.125(1) provides, in pertinent part:
“A person commits the crime of theft of services if:
“…
“(b) Having control over the disposition of labor or of
business, commercial or industrial equipment or facilities
of another, the person uses or diverts to the use of the person or a third person such labor, equipment or facilities
with intent to derive for the person or the third person a
commercial benefit to which the person or the third person
is not entitled.”
Neither “business” nor “facility” is defined for purposes of ORS 164.125, and we, therefore, “presume that the
legislature intended the statutory terms to have their ordinary meanings.” State v. Cave, 223 Or App 60, 67,
195 P3d
446 (2008), rev den,
345 Or 690 (2009). Consequently, we
look to the dictionary—and in particular to Webster’s Third
New International Dictionary—for further guidance.5 Pride
Disposal Co. v. Valet Waste, LLC,
298 Or App 751, 759,
448
P3d 680, rev den,
366 Or 64 (2019).
As relevant here, “business” can mean “a usually
commercial or mercantile activity customarily engaged in
as a means of livelihood and typically involving some independence of judgment and power of decision” or “a commercial or industrial enterprise.” Webster’s at 302. “Facility,” as
relevant here, can mean “something that promotes the ease
5
In advancing its arguments on appeal, the state cites the definition of “private business” and “facility” in Black’s Law Dictionary (4th ed 1968).
“[W]hen a term is a legal one, we look to its established legal meaning as
revealed by, for starters at least, legal dictionaries.” Comcast Corp. v. Dept.
of Rev., 356 Or 282, 296,
337 P3d 768 (2014). But the state does not directly
contend, and we do not understand, the words “business” or “facility” in ORS
164.125(1)(b) to be legal terms of art. Consequently, in our analysis, we consider the definitions “business” and “facility” in Webster’s to determine their
ordinary meaning. Kohring v. Ballard, 355 Or 297, 304 n 2,
325 P3d 717
(2014) (explaining Webster’s is “a dictionary with a ‘descriptive’ focus, reporting ordinary usage, as opposed to other dictionaries with a ‘prescriptive’
focus, reporting ‘correct’ usage”).
Cite as 331 Or App 69 (2024) 79
of any action, operation, transaction, or course of conduct—
usually used in plural,” as in, “excellent facilities for graduate study” or “something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to
perform some particular function or to serve or facilitate
some particular end.” Webster’s at 812-13 (emphasis in original). Textually, therefore, it appears that something can
constitute a “business facility” if it is something that “promotes the ease of … [a] course of conduct” involving “commercial or mercantile activity … as a means of livelihood”
or is “established to perform” such activity.
Statutory context does not suggest that the legislature intended “business facilities” to have anything other
than its ordinary meaning. To the extent that context is
helpful in this case, it supports a broad understanding of
the term “business facilities” in ORS 164.125(1)(b).
The theft of services statute contains an expansive
definition of “services.” ORS 164.125(2) provides:
“As used in this section, ‘services’ includes, but is not
limited to, labor, professional services, toll facilities, transportation, communications service, entertainment, the supplying of food, lodging or other accommodations in hotels,
restaurants or elsewhere, the supplying of equipment for
use, and the supplying of commodities of a public utility
nature such as gas, electricity, steam and water.”
And although the word “services” is not used in ORS
164.125(1)(b), we think the expansive definition of services in
ORS 164.125(2) suggests that, in enacting ORS 163.125(2),
the legislature was concerned with theft from a range of
businesses, including those that, like the rental property
here, supply lodging.
Nevertheless, we also understand, as a contextual
matter, that the term “business facilities” likely does not
include “business equipment” or “labor.” State v. Stamper,
197 Or App 413, 418,
106 P3d 172, rev den,
339 Or 230 (2005)
(“[W]e assume that the legislature did not intend any portion of its enactments to be meaningless surplusage.”).
Legislative history supports that understanding of
“business facilities.” The theft of services statute was first
80 State v. Cassidy
enacted into law as part of the revised criminal code in 1971.
Or Laws 1971, ch 743, § 133. The purpose of the statute is to
“protect commercial enterprises that supply services to the
public from thievish type conduct now only partially covered by existing statutes.” Commentary to Criminal Law
Revision Commission Proposed Oregon Criminal Code,
Final Draft and Report, § 133, 141 (July 1970). It aimed
to “strengthen the protection for [certain] service-vending
enterprises, and, in addition, include within its reach any
other persons or businesses that furnish ‘services,’ including
labor or professional services.” Id.
The initial draft of the provision now codified at
ORS 164.125(1)(b) was modeled on the New York Penal
Law’s theft of services statute. Minutes, Criminal Law
Revision Commission, Subcommittee No. 1, May 17, 1968,
3. As explained by Project Director Donald L. Paillette,
New York had adopted that statute to “plug[ ] an apparent
gap” demonstrated by People v. Ashworth, 220 AD 498,
222
NYS 24 (1927), which was explained to the subcommittee as
follows:
“The defendants therein, a mill superintendent and his
brother, were convicted of grand larceny as a result of having made unauthorized and personally profitable use of the
mill’s machinery, facilities and labor to spin a substantial
quantity of wool for a certain company. The judgment was
reversed on the ground that the corrupt use of the mill’s
facilities and labor did not constitute a theft of ‘property’
and, hence, could not be the subject of larceny.”
Minutes, Criminal Law Revision Commission, Subcommittee
No. 1, May 17, 1968, 4.
The commission also considered a shorter version
of the text that now appears at ORS 164.125(1)(b) based on
Michigan’s theft of services statute:
“A person commits theft if ‘having control over the disposition of services of others to which he is not entitled, he
knowingly diverts those services to his own benefit or to
the benefit of another not entitled thereto.’ ”
Minutes, Criminal Law Revision Commission, Subcommittee
No. 1, May 27, 1968, 2. Paillette explained that he proposed
Cite as 331 Or App 69 (2024) 81
the longer version taken from the New York statute, which
was ultimately adopted, because “it covered the question
of diverting equipment or other property of, for example, a
manufacturing plant to the actor’s own benefit.” Id. at 3
(emphasis added).
In view of that text, context, and legislative history,
we understand “business facility” to be a term that at least
encompasses real property that is used by and is necessary
for the operation of a particular business venture.
With that understanding, we conclude that the evidence in this case was legally sufficient for the jury to determine that the Elkton property qualified as a “business facility.” Although R stayed in the Elkton property on occasion,
evidence would have permitted a finding that the Elkton
property was a “business facility”: R testified that she “managed [the property] as a vacation rental property”; R had
two employees who serviced the property in connection with
the rental business and R incurred expenses as a result;
R had been renting the property out for nearly a decade; R
paid taxes on the income generated from renting out the
property; and R advertised the property online as being
available to rent. In addition, the property was stocked with
supplies that guests could use and, although R spoke with
people before their stay to “vet” them, she would not refuse
to let someone stay merely because she did not know them
“very well.”
Further, contrary to defendant’s contention that the
Elkton property was not “primarily engaged” in a business
function because it was “generally empty,” the fact that a
business has busy times and slow times does not render
its facilities as something other than business facilities. In
sum, we conclude that the evidence was legally sufficient for
a jury to determine that the Elkton property was a “business facility” within the meaning of ORS 164.125(1)(b).
We turn next to defendant’s second assignment
of error, in which she contends that the trial court erred
when it sustained the state’s objection to defendant’s question to R concerning circumstances under which R “would
refuse to rent to somebody.” As noted, during defendant’s
82 State v. Cassidy
trial, defendant asked R if R could “elaborate on some circumstances in which [R] would refuse to rent to somebody.”
The prosecutor objected based on relevance, and defendant explained that she was trying to establish “basically
whether or not this place is open for rent or if it’s kind of a
family home that … vacation guests sometimes stay in.”
The trial court sustained the objection, and on appeal defendant assigns error to that ruling. Further, she contends that
that error was preserved because, even absent an offer of
proof, the question asked and defense counsel’s explanation
of relevance “inform[ed] the trial court of the substance of
the evidence and its error in excluding it.”
We have explained that “[e]videntiary error only
requires reversal if it is not harmless.” State v. Cantwell,
324 Or App 8, 10,
524 P3d 523, rev den,
371 Or 106 (2023).
Further, “[e]vidential error is not presumed to be prejudicial.” OEC 103(1). “Rather, defendant has the burden to
demonstrate that the error affected a substantial right.”
State v. Nguyen,
293 Or App 492, 498,
429 P3d 410 (2018).
In this case, in order to determine whether the
exclusion of the testimony was harmless, we would need to
be able to evaluate the excluded testimony. But defendant did
not make an offer of proof either with a narrative statement
or with actual testimony in the jury’s absence. Absent such
information, defendant has not provided us with a record
from which we can determine whether the error was harmless, even when we consider the “the question asked” and
“defense counsel’s explanation of relevance.” Cedartech, Inc.
v. Strader, 293 Or App 252, 261,
428 P3d 961 (2018) (“[U]ltimately, the offer permits the appellate courts to determine
whether an error was likely to have affected the result of the
case so as to constitute prejudicial error.” (Internal quotation
marks omitted.)); State v. Krieger,
291 Or App 450, 457,
422
P3d 300, rev den,
363 Or 599 (2018) (defendant’s failure to
provide an offer of proof, either with a narrative statement
about the potential testimony or with the witness’s actual
testimony in the jury’s absence, prevented this court from
determining whether evidentiary error was harmless).6
6
Defendant also argues that her written MJOA “operated as an informal
offer of proof.” In her written MJOA, defendant argued that the Elkton property
was not a “commercial property” because the Elkton property “sits empty much of
Cite as 331 Or App 69 (2024) 83
Affirmed.
the year and has a select few guests that stay occasionally,” and the “guests are
people carefully vetted by [R] because of the home’s sentimental value.”
We disagree with defendant that her written MJOA constituted an informal
offer of proof regarding the prosecutor’s objection to defense counsel’s question
concerning “circumstances in which [R] would refuse to rent to somebody.”
