State Of Washington, Resp v. Israel David Osborne, App ( 2017 )

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ISRAEL DAVID OSBORNE, UNPUBLISHED "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 Wash. 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 Wash. App. 530, 567, 364 P.3d 810 (2015), review
denied, 185 Wash. 2d 1022 (2016).
5 State v. Nolan, 141 Wash. 2d 620, 629, 8 P.3d 300 (2000).
6192 Wash. 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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