SPOKANE - An appellate court upheld the conviction of a man who tried to steal copper from a shop near Warden.

The Washington State Court of Appeals, Division III, upheld Samuel E. Osborne's conviction of two counts of attempted burglary in the second degree.

Osborne, 46, broke into two shops south of Warden, where he helped take copper wire and other items, according to court records. A patrolling deputy discovered the lock and fence cut and a van driving inside the fence. The property owners had reported thefts before, so the deputy became suspicious.

When the deputy discovered the empty van near one of the shops he called for backup. Officers arrived and found Osborne hiding under a tarp outside, according to court records. Copper items, including copper wire bundles similar to the ones taken from one of the victims, were found inside of the van.

He was sentenced to three years and eight and a half months in prison, according to the decision.

Osborne argued the Grant County Superior Court made a mistake on the instructions given to the jury, according to the decision. The jury receives a definition of the crime before they start deliberations.

The instructions for one of the counts of attempted burglary didn't contain the portion defining what "attempt" meant, according to the decision.

The appeals court rejected Osborne's argument, pointing out Superior Court Judge Evan Sperline told the jury to look at the instructions "as a whole," according to the decision.

"The court had already provided a correct definition and it related to the same charged offense, we presume the jury read the instructions as a whole in finding Mr. Osborne guilty of both counts.  Mr. Osborne fails to show error," according to the decision.

Osborne contended he wasn't sentenced correctly. The sentencing range is based on the amount and type of crimes a person committed previously, according to the decision. He argued some of his previous convictions wouldn't have counted toward his present score.

The appeals court disagreed, pointing out Osborne didn't object to his offender score when he was initially sentenced, according to the decision. The judges also pointed out removing the crimes wouldn't have changed his sentencing range.