State v. Krieger, 422 P.3d 300

Background

Defendant was convicted of two counts of first-degree sexual abuse for touching his wife's two grandsons (J, age 10; W, age 6) while they stayed at his home. Jury acquitted on three related harassment counts.
The boys made disclosures to their mother (KF), grandmother (Patricia), a friend, and to a forensic interviewer; videotaped interviews and other witness testimony were admitted. Defendant denied abuse, claiming he moved/tucked the children in bed.
Before trial the state obtained a motion in limine precluding evidence that KF (the boys' mother) had been sexually abused by another man. Defense counsel initially said he would not raise that issue but later sought to elicit from Patricia that she was "hypervigilant" because of KF's prior abuse.
The trial court excluded testimony about KF's prior abuse as improper bolstering and, alternatively, under OEC 403, but said the state could "open the door" and invited an offer of proof from the defense.
Defense never made an offer of proof (formal or narrative) about what Patricia would testify regarding KF's abuse, Patricia's experiences, or how that would inform her vigilance. The court sustained exclusion and trial proceeded without that evidence.
On appeal the court affirmed, holding that absent an offer of proof the record was inadequate to determine whether exclusion was reversible (i.e., prejudicial) error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by excluding testimony that KF had been sexually abused by another man	State: exclusion was proper because such testimony would be bolstering and unduly prejudicial under OEC 403	DeVore: the evidence was admissible to show Patricia's "heightened vigilance" and thus explain her attention/credibility regarding the boys' disclosures	Court: assumed arguendo possible error on bolstering but affirmed because defendant failed to make an offer of proof, so appellate court could not assess prejudice
Whether an offer of proof was required to preserve the exclusion for appeal	State: required; defense did not provide one	DeVore: argued the trial court invited an offer and none was made; no proffer exists	Court: an offer of proof was required (or at least necessary to evaluate harmlessness); none was made, so no reversible error shown
Whether exclusion could be harmless without a record of the excluded testimony	State: exclusion harmless if unlikely to affect verdict; court can decide only with record	DeVore: claimed excluded testimony would show context for Patricia's credibility and might have affected jurors	Court: cannot determine harmlessness without content of excluded evidence; affirmed conviction
Whether the trial court abused discretion by labeling the evidence "bolstering"	State: agreed exclusion for bolstering was permissible; also invoked OEC 403	DeVore: contended evidence was rehabilitative, not improper bolstering	Court: noted state conceded bolstering exclusion might be erroneous but outcome same because no offer of proof to assess prejudice

Key Cases Cited

State v. Affeld, 307 Or. 125 (1988) (offer of proof required to preserve appellate review of excluded testimony)
State v. Smith, 319 Or. 37 (1994) (offer of proof allows trial court to reconsider ruling in light of actual evidence)
State v. Morgan, 251 Or. App. 99 (2012) (offer of proof shows whether excluded evidence likely affected result)
State v. Davis, 336 Or. 19 (2003) (harmless-error analysis assessing likelihood that evidentiary error affected verdict)
State v. Marrington, 335 Or. 555 (2003) (centrality of excluded evidence to factual issues affects prejudice analysis)
State v. Strickland, 265 Or. App. 460 (2014) (no offer required if excluded evidence is apparent from counsel's argument)
State v. Hughes, 192 Or. App. 8 (2004) (offer of proof may be testimony on the record or narrative summary)
State v. Khoshnaw, 286 Or. App. 246 (2017) (failure to proffer prevented appellate review of excluded nonscientific evidence)
State v. Clark, 284 Or. App. 197 (2017) (absence of offer of proof precluded assessment of excluded statistical testimony)
Walter v. Echanis, 163 Or. 148 (1939) (appellate courts will not speculate about unproffered testimony)