State v. Polk

436 August 26, 2026 No. 798 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. DARREN KEITH POLK, Defendant-Appellant. Multnomah County Circuit Court 23CR54414; A184423 Chanpone P. Sinlapasai, Judge. Argued and submitted June 16, 2026. Kasey Anne Hooker, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Paul L. Smith, Interim Solicitor General. Before Tookey, Presiding Judge, Kamins, Judge, and Kistler, Senior Judge. KAMINS, J. Reversed and remanded. Cite as 352 Or App 436 (2026) 437 KAMINS, J. Defendant appeals a judgment convicting him of two counts of second-degree disorderly conduct, ORS 166.025. Defendant raises four assignments of error, but we address only the first two because they are dispositive. In those assignments, defendant argues that the trial court erred by excluding a potential impeachment witness and denying him the opportunity to make an offer of proof to determine the admissibility of that witness’s testimony. Reviewing for legal error, State v. Rodriguez, 115 Or App 281, 287, 840 P2d 711 (1992), we conclude that the trial court erred and, because that error was not harmless, we reverse and remand. The criminal charges stemmed from a fight between defendant and his neighbors. Prior to trial, counsel for defendant suggested that the court may want to appoint an attorney for one of defendant’s neighbors, G, because cross- examination could expose G to criminal liability. The court appointed an attorney, White, to represent G. After White met with G, defendant then requested White to be added to his witness list. Defendant argued that, because G was not alone when she met with White, the conversation was not subject to attorney-client privilege. The court denied that request, reasoning that the conversation was privileged. The following day, defendant renewed his request to add White to his witness list and have a court finding on the effect of any waiver of attorney-client privilege. Defendant argued that G and White’s communication was not confiden- tial due to the presence of G’s friend in the room and that the communication was relevant as to G’s potential bias. The state responded that none of the parties knew if any privileged conversations took place inside the room, and, in any event, defendant had not shown that the evidence would be relevant. The court denied defendant’s request, and defendant then asked to submit an offer of proof. The court declined, and the case proceeded to a jury trial, where defendant was convicted of two counts of second-degree dis- orderly conduct. “Ordinarily, when the trial court has excluded testi- mony, the proponent of the disputed evidence must make an 438 State v. Polk offer of proof.” State v. Krieger, 291 Or App 450, 455, 422 P3d 300, rev den, 363 Or 599 (2018). An offer of proof “assure[s] that the trial court can make an informed decision”; “per- mits the parties to raise additional arguments, if appropri- ate[;] and gives the court an opportunity to reconsider its ruling and correct any error.” State v. Olmstead, 310 Or 455, 461, 800 P2d 277 (1990). Importantly, for our purposes, it allows appellate courts “to determine whether it was error to exclude the evidence and whether any error was likely to have affected the result of the case.” State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988); see also State v. Powers, 323 Or App 553, 569, 523 P3d 1112 (2023), vac’d and rem’d on other grounds, 372 Or 812, 558 P3d 847 (2024) (explain- ing that, absent an offer of proof, an appellate court is left to speculate as to what the excluded testimony would have been). If the substance of what the witness would have tes- tified to is apparent from the context, however, an offer of proof is unnecessary. OEC 103(1)(b); State v. Partain, 297 Or App 799, 804, 444 P3d 1136, rev den, 365 Or 533 (2019) (“Because the substance of what defendant would have said can be inferred from his counsel’s question, no express offer of proof was necessary to preserve the error for appeal.”). Here, without an offer of proof, the “substance” of White’s testimony is unknown. It is certainly possible that White’s testimony would have been inadmissible due to attorney-client privilege, relevance, or other rules of evi- dence. It is also possible that the privilege may have been waived by the presence of a third party, see OEC 503(1)(b) (privileged communication is limited to that “not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication”), and that White may have provided relevant impeachment evidence on G’s bias against defendant based on her effort to escape crimi- nal liability. Defendant was unable to establish that infor- mation, or present it for our review, due to the trial court’s limitation. The error thus was not harmless, because it prej- udiced defendant’s right to control his defense, including his appeal. See Dept. of Human Services v. M. T. J., 304 Or App 148, 162, 466 P3d 702 (2020) (the juvenile court’s failure to Cite as 352 Or App 436 (2026) 439 allow the father to present an offer of proof after granting the mother’s motion to limit testimony was prejudicial error when, as a result of the court’s ruling, “father was left with no ability to present evidence that, if determined to be rel- evant and credited by the court, might have persuaded the court to reach a different decision”); see also Barksdale v. Bert’s Marketplace, 289 Mich App 652, 658, 797 NW2d 700, 704 (2010) (reversing and remanding when the trial court prevented the plaintiff from making an offer of proof after arbitrarily limiting witness examination because such a preclusion “further prejudiced [the] plain- tiff’s substantial rights”); MacCormick v. MacCormick, 478 A2d 678, 681 (Me 1984) (“For the trial court to deprive a party of the opportunity to make an offer of proof following a ruling excluding evidence is to deprive the party of the right, guaranteed by statute and rule, to have a meaning- ful review of the trial court’s action. Thus, it is reversible error to refuse without justification to allow a party to make an offer of proof.” (Footnotes omitted.)); 88 CJS Trial § 169 (“Where an offer of proof is necessary, it is error for the trial court to refuse an opportunity to counsel to state what coun- sel proposes to prove by the evidence offered.”). Accordingly, we reverse and remand. Reversed and remanded.