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State v. Lively

Court of Appeals of Oregon

October 10, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
KURT ALLEN LIVELY, Defendant-Appellant.

          Submitted May 31, 2018.

          Coos County Circuit Court 16CR43458; Richard L. Barron, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent.

          Before Armstrong, Presiding Judge, and Shorr, Judge, and Bunch, Judge pro tempore.

         Case Summary: Defendant appeals a judgment of conviction for unlawful cutting and transport of special forest products in violation of ORS 164.813(2). Defendant was charged by information with "removing" a special forest product. Defendant contends that the trial court impermissibly amended the charging instrument by instructing the jury on the statutory definition of "harvest," arguing that he was charged only with removing, and not harvesting, a special forest product. Held: The trial court did not impermissibly amend the charging instrument by instructing the jury on the statutory definition of "harvest" because the crime of removing a special forest product, ORS 164.813(2), is subsumed within the crime of harvesting, as that term is defined in ORS 164.813(1)(a).

         Affirmed.

         [294 Or.App. 378] SHORR, J.

         Defendant appeals a judgment of conviction for unlawful cutting and transport of special forest products. ORS 164.813(2). Defendant was charged by information with "removing] a special forest product, to wit: a cedar stump" without a permit. In defendant's sole assignment of error, he argues that the trial court impermissibly amended the charging instrument by instructing the jury on the definition of "harvest" under ORS 164.813(1)(a) because the charging instrument pleaded only removal, and not harvest, as the state's theory of defendant's culpable conduct. The state argues that the trial court's instruction on the definition of harvest did not substantively amend the charging instrument because the definition of "harvest" encompasses the conduct of removal. We conclude that the trial court's jury instruction on the definition of "harvest" did not substantively amend the indictment. Therefore, the trial court did not err, and we affirm.

         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.)

         [294 Or.App. 379] At trial, the court instructed the jury on the law generally as follows: "[A] person commits the crime of Unlawful Cutting and Transport of Special Forest Products if the person * * * harvests or removes special forest products from a place" without a permit. (Emphasis added.) Then the court instructed the jury on the statutory definition of "harvest." Defendant objected on the basis that "harvest" was not a theory that was pleaded in the charging instrument. The court gave the following instruction, taken from ORS 164.813(1)(a), over defendant's objection:

"'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 ...


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