       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                        ]          No. 74401-1-1                3


                     Respondent,             ;         DIVISION ONE                 ;:
                                                                                      CO

             v.                              ]

ISRAEL DAVID OSBORNE,                                  UNPUBLISHED                    "

                     Appellant.              )         FILED: January 23, 2017




       Cox, J. - Israel Osborne appeals his judgment and sentence, arguing that

the jury instruction provided at his trial, WPIC 4.01, unconstitutionally defined a

reasonable doubt. Because the supreme court requires that trial courts use the

challenged jury instruction, we affirm.

       The State charged Osborne with attempted theft of a motor vehicle. After

trial, the trial court provided the jury with WPIC 4.01. That instruction defines

reasonable doubt as a doubt "for which a reason exists and may arise from the

evidence or lack of evidence."1 The jury found Osborne guilty as charged.

       Osborne appeals.

                                 JURY INSTRUCTION


       Osborne argues WPIC 4.01, in relevant part quoted above, is

unconstitutional. Because controlling case authority directs use of this

instruction, we disagree.


         Clerk's Papers at 43.
No. 74401-1-1/2



      Osborne claims that the instruction requires a juror to be able to articulate

the reason for his doubt. He argues that such a requirement erodes the

presumption of innocence.

      The supreme court has ordered trial courts to use WPIC 4.01 in all

criminal cases.2 For over a century, that court has explained that the challenged

language does not threaten the presumption of innocence or the standard of
proof beyond a reasonable doubt.3 We have several times addressed and

rejected the same concerns raised here.4 We reject Osborne's argument on the
same basis.

                                     COSTS

       Osborne argues that this court should decline to award the State appellate

costs should he not prevail. We agree.

       RCW 10.73.160(1) gives appellate courts discretion to decline to impose

appellate costs on appeal.5 Under State v. Sinclair, there is a presumption that
indigency continues unless the record shows otherwise.6
       Here, the trial court granted Osborne's motion seeking appellate review at

public expense. The court did so based on Osborne's declaration, which listed

       2 State v. Bennett. 161 Wn.2d 303, 318, 165 P.3d 1241 (2007).

       3 See State v. Harsted. 66 Wash. 158,164-65, 119 P. 24 (1911).

       4 State v. Lizarraga. 191 Wn. App. 530, 567, 364 P.3d 810 (2015), review
denied, 185 Wn.2d 1022 (2016).

       5 State v. Nolan, 141 Wn.2d 620, 629, 8 P.3d 300 (2000).

       6192 Wn. App. 380, 392-93, 367 P.3d 612, review denied. 185Wn.2d
 1034 (2016).
No. 74401-1-1/3



his minimal assets. Osborne's conviction, incarceration, and resultant loss of

meaningful income make him further unable to pay such costs and expenses.

         The State counters that the record demonstrates Osborne will become

able to pay in the future.

         The State also points generally to Osborne's age and previous work

history. But it fails to show Osborne will be able to return to his previous work

after incarceration in this matter.


         Such evidence is insufficient to overcome the presumption of indigency.

         Thus, an award to the State for appellate costs is inappropriate under

these circumstances.


         We affirm the judgment and sentence and deny any award of costs to the

State.
                                                             4^37

WE CONCUR:




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