         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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JASON LARONE THOMAS,                              UNPUBLISHED OPINION                 *   *



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                      Appellant.                  FILED: September 26, 2016


         Becker, J. — Because our Supreme Court has instructed that WPIC 4.01

be used to inform the jury on reasonable doubt, the trial court did not err in giving

this instruction. The community custody statute, RCW 9.94A.701, is not

ambiguous. We affirm and grant Thomas's request not to impose appellate

costs.


                                       FACTS

         On November 19, 2014, Jason Thomas attacked his employer with a

metal bar. The State charged him with second degree assault, and the jury

found him guilty as charged. Thomas appeals.

           WASHINGTON PATTERN JURY INSTRUCTION 4.01 (WPIC)

         At Thomas's trial, the court gave the standard reasonable doubt

instruction, WPIC 4.01. 11 Washington Practice: Washington Pattern Jury

Instructions: Criminal 4.01, at 27 (3d ed. Supp. 2014-15). This instruction
No. 73519-5-1/2



reads, in relevant part, "A reasonable doubt is one for which a reason exists and

may arise from the evidence or lack of evidence." Thomas did not object. The

State argues that because Thomas did not object, he cannot raise this error for

the first time on appeal. In any event, the trial court did not err in giving this

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

Supreme Court instructed that WPIC 4.01 be given. The propriety of this

instruction was reaffirmed in State v. Kalebaugh, 183 Wn.2d 578, 585-86, 355

P.3d 253 (2015). We have recognized this controlling authority. State v.

Lizarraqa, 191 Wn. App. 530, 364 P.3d 810 (2015), review denied, 185Wn.2d

1022 (2016). The trial court did not err by doing the same.

                        COMMUNITY CUSTODY STATUTE

       Thomas contends that the community custody statute, RCW 9.94A.701, is

ambiguous as to the length of the community custody term for assault in the

second degree because that crime is both a "violent offense" requiring 18 months

of community custody under RCW 9.94A.701(2), as well as a "crime against

persons" requiring 12 months of community custody under RCW 9A.94A.701(3)(a).

We recently held that this statute is not ambiguous. State v. Hood, No. 73401-6-1

(Wash. Ct. App. Sept. 26, 2016). Hood controls.

                                APPELLATE COSTS

       In his opening brief, Thomas asks us not to impose appellate costs in the

event that the State prevails on appeal and seeks costs. The State does not

respond. Under RCW 10.73.160(1), this court has discretion to decline to

impose appellate costs on appeal. State v. Sinclair, 192 Wn. App. 380, 385, 388,
No. 73519-5-1/3


367 P.3d 612 (2016). In light of Thomas's indigent status, our presumption under

RAP 15.2(f) that he remains indigent "throughout the review" unless the trial court

finds that his financial situation has improved, and the State's failure to respond,

we exercise our discretion not to impose appellate costs.

                    STATEMENT OF ADDITIONAL GROUNDS

       Thomas claims that the jury instructions and special verdict form did not

properly define the requisite level of harm to find that "the victim's injuries

substantially exceed the level of bodily harm necessary to satisfy the elements of

the offense." RCW 9.94A.535(3)(y). To satisfy the elements of second degree

assault, "substantial bodily harm" is the necessary level of harm. RCW

9A.36.021. The jury instructions and the special verdict form use "substantial

bodily harm." This argument does not warrant review.

       Affirmed.




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WE CONCUR:




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