The facts are undisputed. Two Forest Service employees discovered defendant in the Rogue River Siskiyou National Forest chaining a large cedar stump on a trailer. The stump was so large that it caused the trailer to sag to the ground. Defendant did not have a permit to take the stump, and the Forest Service employees knew that the stump had been sold previously to a lumber company. One of the employees told defendant that he could not take the stump without a permit, and defendant agreed to leave the stump and "go talk to a ranger about a permit." Defendant later went to the ranger station and inquired about obtaining a permit for the stump and was denied. Defendant later told a sheriff's deputy that he "knew he had screwed up because he didn't have a permit."
Defendant was eventually arrested and charged with unlawful cutting and transport of special forest products in violation of ORS 164.813. Specifically, the district attorney's information alleged that defendant "unlawfully and knowingly remove [d ] a special forest product, to wit: a cedar stump, from a place without a written permit in the said defendant's possession." (Emphases added.)
" 'Harvest' means to separate by cutting, digging, prying, picking, peeling, breaking, pulling, splitting or otherwise removing a special forest product from its physical connection or point of contact with the ground, or the place or position where it lay."
We note that the court also specially instructed the jury that, "[i]n this case, to establish the crime of unlawful cutting and transport of special forest products, the state must prove beyond a reasonable doubt * * * [that] defendant unlawfully and knowingly removed a special forest product, a cedar stump * * *." (Emphasis added.) Thus, the jury was instructed to decide whether defendant removed a special forest product as proscribed by the statute. The jury found defendant guilty, and the trial court entered a judgment of conviction.
Defendant now appeals the judgment of conviction, assigning error to the trial court's jury instruction on the definition of "harvest." We review jury instructions for legal error. State v. Pierce ,
"A jury instruction can have the effect of amending a charging instrument." State v. Leachman ,
In defendant's view, to "remove" as an element of the offense in ORS 164.813(2) means to remove a special forest product entirely from the landowner's land, which defendant contends that he did not do because he did not take the cedar stump out of the federal forest land. In contrast, according to defendant, to harvest by "otherwise removing" as defined by ORS 164.813(1)(a) means merely to collect things while still on the landowner's land, which defendant concedes that he did when he loaded the cedar stump onto the trailer. Therefore, defendant argues, the jury instruction on the definition of "harvest" permitted the jury to convict defendant on a theory not pleaded in the charging instrument. The state contends that there is no meaningful distinction between removal under ORS 164.813(2) and "otherwise removing" under the definition of "harvest" in ORS 164.813(1)(a). Further, the state argues that, even if there is a distinction, the charging instrument was broad enough to encompass both.
The parties' contentions require us to construe the meaning of "remove" under ORS 164.813 using the principles set out in State v. Gaines ,
"[I]t is unlawful for any person other than the landowner to cut or split wood into special forest products or to harvest or remove special forest products from a place unless the person has in possession a written permit to do so from the owner of the land from which the wood is cut or the special forest products taken."
ORS 164.813(2) (emphases added). The statute also contains a number of definitions. See ORS 164.813(1). Pertinent to our discussion is the definition of "harvest":
" 'Harvest' means to separate by cutting, digging, prying, picking, peeling, breaking, pulling, splitting or otherwise removing a special forest product from :
"(A) Its physical connection or point of contact with the ground or vegetation upon which it was growing; or
"(B) The place or position where it lay."
ORS 164.813(1)(a) (emphasis added). The statute does not define the term "remove."
We agree with defendant that, considering its context, the statute at least requires that the "place" be located within the landowner's land. After all, the landowner could not give permission to remove special forest products from someone else's land. We are not persuaded, however, that the legislature intended the term to mean the entirety of the landowner's land, as defendant proposes, and not any smaller portion of the landowner's land or a place on the landowner's land. The state points out that the legislature chose to define the offense broadly as removal "from a place" rather than "from the landowner's land." The fact that the legislature chose the generic term "place," rather than a more specific term indicates that the legislature intended the term to have a broad meaning.
Moreover, defendant's theory-that harvest means to simply collect things while on the landowner's land while removal means to completely remove the product from a place, i.e. , from the landowner's land-contradicts a plain reading of the text of the statute. The clause at issue ("from a place") modifies both "remove" and "harvest." ORS 164.813(2) also prohibits harvesting-which includes "otherwise removing"-special forest products "from a place." Under ORS 164.813(2), it is a crime to harvest or remove a special forest product "from a place."
Turning to defendant's next argument, defendant employs the rule against surplusage in support of his two proposed meanings for the word "remove." Defendant argues that there would be no need for the legislature to include
We recognize that, where a statute has "several provisions or particulars[,] such construction is, if possible , to be adopted as will give effect to all." ORS 174.010 (emphasis added). Here, the effect of our interpretation is that the crime of "remov[ing] special forest products from a place" in ORS 164.813(2) is subsumed within the crime of
A brief review of legislative history supports our conclusion. In 1993, the legislature amended the forest products theft statute to include "harvest" as an element of the offense; previously, the only illegal conduct under the subsection at issue was to "remove." See Or. Laws 1993, ch. 167, § 1. At the same time, the legislature expanded the definition
Accordingly, we conclude that the trial court did not err by instructing the jury on the definition of "harvest" because the instruction did not amend, substantively or otherwise, the district attorney's information charging defendant with unlawfully removing a special forest product from a place without permission from the owner of the land. We therefore affirm.
Affirmed.
Notes
The legislature has since amended ORS 164.813 to primarily allow the Board of Forestry to define "special forest products." ORS 164.813(1)(b)(A) (" 'Special forest products' means * * * [p]lants, plant parts, fruit, fungi, parts of fungi, rocks or minerals that are identified in State Board of Forestry rules as special forest products."); see also OAR 629-028-0001(9). That amendment, however, does not affect our analysis.