State v. Wescott

Aug 19, 2026

A186908

Versions:352 Or App 380

PER CURIAM

Affirmed.

PER CURIAM

Defendant was convicted of aggravated first-degree animal abuse, ORS 167.322, for killing his neighbors’ dog. On appeal, he assigns error to the trial court excluding three witnesses from testifying based on a discovery violation. The court had ordered witness lists to be submitted by December 20. Defendant did not submit a list. On the afternoon of January 30, with trial set for the next morning, defendant notified the prosecutor that he intended to call three witnesses, providing names but no contact information. At trial the next morning, the state raised the issue, and, after hearing from both parties, the court ruled that the witnesses would not be allowed to testify. Defendant challenges that ruling. He contends that the trial court abused its discretion by imposing such a severe sanction. In response, the state challenges preservation, argues that the trial court did not abuse its discretion, and points to the lack of an offer of proof.

The lack of an offer of proof is dispositive. Evidentiary errors are not presumed to be prejudicial. OEC 103(1). Even when a trial court errs in excluding evidence, that is not a basis for reversal “unless a substantial right of the party is affected” and “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” OEC 103(1)(b); see also State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (discussing the “constitutional test for affirmance despite error,” i.e., harmlessness). Thus, “[n]ormally, an offer of proof is required to preserve error when a trial court excludes testimony.” State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988). The “offer of proof must demonstrate the content of the evidence sought to be admitted.” State v. Phillips, 314 Or 460, 465, 840 P2d 666 (1992). That information is necessary for us to determine, among other things, “whether any error was likely to have affected the result of the case.” Affeld, 307 Or at 128.

Defendant argues that the excluded witnesses’ testimony “could have supported his choice of evils and mental state defense by rebutting the state‘s testimony regarding the dog‘s behavior” or “m[ight] have caused the court” to assess differently the credibility of the witnesses who did testify. Such assertions are speculative because it is entirely unknown what the excluded witnesses’ testimony would have been. Given the absence of an offer of proof, we reject defendant‘s claim of error. See State v. Krieger, 291 Or App 450, 451, 422 P3d 300, rev den, 363 Or 599 (2018) (rejecting claim of error regarding exclusion of testimony, because the defendant “did not make an offer of proof sufficient to permit us to determine whether any error in excluding the testimony was prejudicial“). We need not reach the state‘s other arguments for affirmance.

Affirmed.