State v. Cassidy

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 acquit-

tal (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 bene-

fits” 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 sus-

tained 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 cur-

rently 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 person-

ally 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 pro-

duced 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 pos-

sibility 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 permis-

sion 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 per-

mission 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 con-

trol over the disposition of business facilitates, to wit: vaca-

tion 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 some-

body.” 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 evi-

dence 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 com-

mercial 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 ser-

vices.” 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, defen-

dant 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 mem-

bers 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 prop-

erty”—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 omit-

ted). “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 acquit-

tal, “an objection as to the legal insufficiency of evidence to

prove a claim on one theory does not have the effect of pre-

serving 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 obli-

gation 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 “per-

sonal 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 evi-

dence 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 “com-

mercial property” because the evidence was insufficient to

show that R operated the property “with the primary pur-

pose 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 “oper-

ate 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 poli-

cies underlying the rule of preservation. Defendant’s argu-

ment on appeal concerning the meaning of “commercial ben-

efit” 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 par-

ties had discussed jury instructions and agreed on a defi-

nition of “commercial benefit” for those purposes—namely,

“[c]ommercial benefit includes any economically quantifi-

able 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 “com-

mercial benefit” meant something different from the defini-

tion 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 evi-

dence regarding her conduct * * * was insufficient to estab-

lish 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 prop-

erty was not “established to perform or facilitate open eco-

nomic 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 evi-

dence of R’s business practices—it was advertised, incurred

costs, generated profit, and employed staff * * *—that estab-

lished 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 stat-

ute 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 prop-

erty, 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 per-

son 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 pur-

poses of ORS 164.125, and we, therefore, “presume that the

legislature intended the statutory terms to have their ordi-

nary 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 inde-

pendence of judgment and power of decision” or “a commer-

cial 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 “pri-

vate 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 con-

sider 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, report-

ing 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 gradu-

ate study” or “something (as a hospital, machinery, plumb-

ing) 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 orig-

inal). Textually, therefore, it appears that something can

constitute a “business facility” if it is something that “pro-

motes the ease of * * * [a] course of conduct” involving “com-

mercial or mercantile activity * * * as a means of livelihood”

or is “established to perform” such activity.

Statutory context does not suggest that the legis-

lature 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, trans-

portation, communications service, entertainment, the sup-

plying 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 por-

tion 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 cov-

ered 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 hav-

ing 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 dispo-

sition 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 evi-

dence in this case was legally sufficient for the jury to deter-

mine that the Elkton property qualified as a “business facil-

ity.” 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 “man-

aged [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 “busi-

ness 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 ques-

tion 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 cir-

cumstances in which [R] would refuse to rent to somebody.”

The prosecutor objected based on relevance, and defen-

dant 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 defen-

dant 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 preju-

dicial.” 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 harm-

less, 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]lti-

mately, 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.”