State v. Lively

When a statue has “several provisions or particulars[,] such construction is, it possible, to be adopted as will give effect to all.” ORS 174.010.

Defendant appealed a conviction of ORS 164.813(2); unlawful cutting and transport of special forest products. Defendant assigned error to the trial court instructing the jury on the definition of “harvest” under ORS 164.8013(1)(a). On appeal, Defendant argued that the jury instruction on the definition of “harvest” permitted the jury to connect it defendant on a theory not pleaded in the charging instrument. In response, the State argued that there was no meaningful distinction between removal under ORS 164.813(2) and “otherwise removing” which is under the definition of “harvest” in 164.813(21)(a), and even if there was, the charging instrument was broad enough to encompass both.  When a statue has “several provisions or particulars[,] such construction is, it possible, to be adopted as will give effect to all.” ORS 174.010. The Court of Appeals held that in ORS 164.813, the legislature intended the term “otherwise removing” to serve as a catch-all phrase to encompass any other removal activity that the definition of “harvest” had not specified. Affirmed.