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.”