430 P.3d 1120
Or. Ct. App.2018Background
- Defendant was found chaining a large cedar stump to a trailer in Rogue River–Siskiyou National Forest and had no permit; Forest Service employees and a ranger denied a permit request.
- Defendant told a deputy he knew he had "screwed up" because he lacked a permit; he was charged by information under ORS 164.813(2) for "remov[ing] a special forest product, to wit: a cedar stump" without a permit.
- At trial the court instructed the jury that the crime is committed if a person "harvests or removes" special forest products from a place without a permit and then read the statutory definition of "harvest" (which includes "otherwise removing" from the place or position where it lay).
- Defendant objected, arguing the information pleaded only "removal" (implying removal from the landowner’s land) and that defining "harvest" (which defendant says can mean merely separating while still on the land) amended the charge to a theory not pleaded.
- The jury convicted; on appeal defendant claimed the jury instruction on "harvest" impermissibly amended the charging instrument. The court reviewed statutory meaning and legislative history and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether giving jury the statutory definition of "harvest" substantively amended the information that charged only "removal" | State: "harvest" definition encompasses removal; instruction did not add a new theory | Defendant: "remove" means taking product off the landowner's land; "harvest/otherwise removing" can mean merely separating on the land — so instruction changed theory | No error — definition of "harvest" includes "remove," so instruction did not substantively amend the information |
Key Cases Cited
- State v. Gaines, 346 Or. 160 (2009) (statutory construction principles and legislative intent are paramount)
- PGE v. Bureau of Labor and Industries, 317 Or. 606 (1993) (framework for statutory interpretation: text, context, legislative history)
- State v. Wimber, 315 Or. 103 (1992) (distinguishes substantive vs. formal amendments to charging instruments)
- State v. Leachman, 285 Or. App. 756 (2017) (jury instructions can have the effect of amending a charging instrument)
- State v. Pierce, 235 Or. App. 372 (2010) (standard of review for jury instruction legal error)