          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                               No. 73292-7-1


                         Respondent,               DIVISION ONE                         cp


                v.
                                                                                              '..«") '
                                                                                          0
                                                                                         \S
                                                   UNPUBLISHED OPINION
GREGORY PARIS,

                        Appellant.                 FILED: August 8, 2016

       Schindler, J. — Gregory Paris appeals the jury conviction of attempted indecent

liberties. Paris argues the Washington pattern jury instruction defining "reasonable

doubt" is unconstitutional. We recently considered and rejected the same argument in

State v. Lizarraqa, 191 Wn. App. 530, 567, 364 P.3d 810 (2015). We adhere to our

decision, and affirm the jury conviction.

       The State charged Gregory Paris with attempted indecent liberties in violation of

RCW 9A.28.020 and RCW 9A.44.100(1)(b).

       At the conclusion of trial, the court instructed the jury on the definition of

"reasonable doubt" using 11 Washington Practice: Washington Pattern Jury

Instructions: Criminal 4.01, at 27 (3d ed. Supp. 2014-15) (WPIC). Paris did not object

to the instruction. The jury convicted Paris.

       For the first time on appeal, Paris claims WPIC 4.01 is unconstitutional. Paris

argues the language defining a reasonable doubt as "one for which a reason exists"
No. 73292-7-1/2


misstates the reasonable doubt standard by undermining the presumption of innocence

and shifting the burden of proof. A jury instruction that misstates the reasonable doubt

standard or shifts the burden of proof to the defendant is manifest constitutional error

that may be raised for the first time on appeal. RAP 2.5(a)(3); State v. Kalebaugh, 183

Wn.2d 578, 584-85, 355 P.3d 253 (2015); State v. Scott. 110 Wn.2d 682, 688 n.5, 757

P.2d 492 (1988).

         We recently considered and rejected the same argument and challenge to WPIC

4.01 in Lizarraga, 191 Wn. App. at 567. We adhere to our decision in Lizarraga and

conclude the court did not err in using WPIC 4.01 to instruct the jury on reasonable

doubt.

         Paris requests the court exercise its discretion under RCW 10.73.160(1) to waive

appellate costs. Under the nonexclusive factors in State v. Sinclair, 192 Wn. App. 380,

391, 367 P.3d 612 (2016), we waive the imposition of appellate costs.1
         We affirm Paris's conviction but waive the imposition of appellate costs.




                                                      ^QiJih^XL Qx
WE CONCUR:




                           1*

         1Becausewe waive the imposition of appellate costs, we need notaddress Paris's as-applied
substantive due process challenge to the imposition of appellate costs.
