                                                         Filed
                                                   Washington State
                                                   Court of Appeals
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                    Division Two

                                          DIVISION II                                      March 7, 2017

 STATE OF WASHINGTON,                                                No. 47163-9-II

                                 Respondent,                    UNPUBLISHED OPINION

         v.

 BONNIE MARIE TEAFATILLER,

                                 Appellant.

        BJORGEN, C.J. — Bonnie Marie Teafatiller appeals a bench trial judgment finding her

guilty of attempted murder in the second degree, two counts of assault in the first degree,

attempted robbery in the first degree, and unlawful possession of a firearm in the second degree,

along with multiple firearm enhancements. We hold that: (1) the trial court’s findings of fact

and conclusions of law demonstrate that it properly applied the beyond reasonable doubt

standard and (2) the trial court erred by failing to make an individualized inquiry into

Teafatiller’s ability to pay before imposing discretionary legal financial obligations (LFOs).

Accordingly, we affirm Teafatiller’s convictions, reverse the LFOs imposed, and remand to the

trial court for an individualized inquiry into her ability to pay.

                                               FACTS

        On August 16, 2013, Teafatiller overheard Bruce Marbley and his uncle Allen Jenkins

discuss going to a strip club and offered to find some “women” for them. Clerk’s Papers (CP) at

299-301. Some moments later, Kayla Wadley arrived, and all four individuals got into a car

driven by Jenkins so that Teafatiller could direct them to other prostitutes. After some time,

Jenkins and Marbley decided to abandon their plan and return to their motel, resulting in a

dispute between Jenkins and Teafatiller over whether Teafatiller would be compensated for her
No. 47163-9-II


efforts. During the argument, and while still in the car, Teafatiller drew a gun and attempted to

force Marbley and Jenkins to go to an automated teller machine, which Jenkins refused to do.

As the conflict escalated, Teafatiller shot three times: first, out the car window to get Jenkins’

attention, then into the dashboard of the vehicle, and finally through Jenkins’ neck from the

backseat of the car. Teafatiller and Wadley fled the car after the third shot, and Jenkins, still

conscious and bleeding, managed to drive to a store a few blocks away.

        At her bench trial, Teafatiller’s defense theory attempted to shift suspicion onto Wadley

as the shooter. Teafatiller claimed that Wadley had drawn the gun in response to Jenkins’ erratic

driving and shot him after attempting to hand Teafatiller the weapon. The trial judge determined

that the physical evidence and testimony of Jenkins, Marbley, and Wadley identifying Teafatiller

as the shooter was more credible than Teafatiller’s version of the events. The court found

Teafatiller guilty of attempted murder in the second degree, two counts of assault in the first

degree, attempted robbery in the first degree, and unlawful possession of a firearm in the second

degree, along with multiple firearm enhancements. At the conclusion of trial, the court imposed

$2,800 in LFOs on Teafatiller.

        Teafatiller appeals, asserting that the trial court violated her right to due process by

failing to apply the beyond a reasonable doubt standard in determining guilt. She also challenges

the imposition of discretionary LFOs without an individualized inquiry into her ability to pay

them.




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                                              ANALYSIS

1.       Due Process

         Teafatiller argues that several of the trial court’s findings of fact show that it violated her

right to due process by failing to apply the beyond a reasonable doubt standard in determining

guilt. We disagree.

         The due process clause of the Fourteenth Amendment prevents a state from depriving

“any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV.

Our state constitution similarly provides that “[n]o person shall be deprived of life, liberty, or

property, without due process of law.” WASH. CONST. art. I, § 3. Although the language of the

provisions are nearly identical, our Supreme Court has held that interpretation of the federal due

process clause does not control our analysis of the state due process clause. Bellevue Sch. Dist.

v. E.S., 171 Wn.2d 695, 710-11, 257 P.3d 570 (2011). However, whether the state due process

clause provides greater protection than the federal due process clause depends on the particular

context in which a litigant asserts a due process violation. Id. Teafatiller does not cite to any

case law indicating that the state due process clause provides broader protection than the federal

due process clause in this context and has not offered a Gunwall1 analysis advocating such a

position. In the absence of a Gunwall analysis “we cannot consider an argument that the

Washington Constitution provides greater protection than its federal counterpart.” Centimark

Corp. v. Dep’t of Labor & Indus., 129 Wn. App. 368, 375, 119 P.3d 865 (2005). Therefore, we

analyze Teafatiller’s claim under the federal due process clause.

         In a criminal case, the State bears the burden of proving all the elements of an offense

beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068, 25 L. Ed. 2d



1
    State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
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No. 47163-9-II


368 (1970). The due process clause of the Fourteenth Amendment “protects a defendant in a

criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.’” Jackson v. Virginia, 443 U.S. 307,

315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (quoting In re Winship, 397 U.S. at 364). Stated

another way:

       Winship presupposes as an essential of the due process guaranteed by the
       Fourteenth Amendment that no person shall be made to suffer the onus of a criminal
       conviction except upon sufficient proof—defined as evidence necessary to
       convince a trier of fact beyond a reasonable doubt of the existence of every element
       of the offense.

Jackson, 443 U.S. at 316 (emphasis added). Similarly, in State v. Smith, our Supreme Court

noted that “[i]n a criminal prosecution, due process requires the State to prove every element of

the charged crime beyond a reasonable doubt.” 155 Wn.2d 496, 502, 120 P.3d 559 (2005). Our

Supreme Court has explained that

       [t]he purpose of the sufficiency inquiry is to “ensure that the trial court fact finder
       ‘rationally appl[ied]’ the constitutional standard required by the due process clause
       of the Fourteenth Amendment, which allows for conviction of a criminal offense
       only upon proof beyond a reasonable doubt.”

State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014) (alteration in original) (quoting State v.

Phuong, 174 Wn. App. 494, 502, 299 P.3d 37 (2013), review denied, 182 Wn.2d 1022 (2015)).

Because Teafatiller argues that the trial court applied a standard of guilt below that of beyond a

reasonable doubt, we review the sufficiency of the evidence to “ensure that the trial court fact

finder rationally appl[ied] the constitutional standard required by the due process clause of the

Fourteenth Amendment.” Id (internal quotation marks omitted).

       In considering whether a conviction rests upon sufficient evidence, we “find evidence

sufficient to support a conviction when it permits a rational trier of fact to find the essential

elements of the crime beyond a reasonable doubt.” State v. O’Neal, 126 Wn. App. 395, 412, 109

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No. 47163-9-II


P.3d 429 (2005). Our review of the sufficiency of the evidence is de novo. Berg, 181 Wn.2d at

867. When reviewing the sufficiency of the evidence, we assume the veracity of the State’s

evidence and all inferences that can be reasonably drawn from that evidence. Id. at 424 (citing

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We do not review the trial court’s

credibility determinations, as “[c]redibility determinations are for the trier of fact and cannot be

reviewed on appeal.” State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We have

previously held that “[t]he trier of fact is free to reject even uncontested testimony as not credible

as long as it does not do so arbitrarily.” State v. Prestegard, 108 Wn. App. 14, 23, 28 P.3d 817

(2001).

          Teafatiller argues that seven of the trial court’s findings demonstrate that it failed to

properly apply the beyond reasonable doubt standard in determining her guilt. However, all of

Teafatiller’s challenged findings involve determinations of credibility that are not subject to

appellate review, and we will not disturb a trial court’s findings of fact regarding credibility

unless such findings are arbitrary. Camarillo, 115 Wn.2d at 71. Each challenged finding reflects

the trial judge’s process of weighing the different narratives presented at trial and determining

which version of the facts appeared most credible based on the evidence:

          [1. Teafatiller] did not offer an explanation for why Jenkins would begin to drive
          that way.
          ....
          [2. The defense theory] is not convincing because the presence of that blood stain
          can be explained in other ways, each of which seems more likely to this trier of
          fact from all the evidence in this case.
          ....
          [3. E]ven if this blood spot is from an exit wound, more likely than the defense
          theory is that Ms. Wadley had already exited from the car just before the last shot
          was fired.
          ....
          [4.] The relative accounts make most sense as Wadley related them.
          ....



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No. 47163-9-II


       [5.] Teafatiller’s description of events does not explain why Jenkins would
       suddenly drive as he did. Jenkins said it was because Teafatiller fired a gunshot
       that he sped up saying to her, “are you going to shoot me while I’m driving?”
       Nothing else explains why Jenkins would begin to drive dangerously.
       ....
       [6.] The physical evidence of the shots coupled with the actions of the actors’
       support the sequence of events described by Ms. Wadley. The blood spatter
       evidence has been discussed above and does not supply reasonable doubt that Ms.
       Teafatiller was not the shooter.
       ....
       [7.] While it may have been physically possible for a person sitting in the driver’s
       side back seat to have fired the shots causing the result that occurred, the fact that
       two things are possible does not render them equally likely.

CP at 304, 309-12 (emphasis added).

       None of the challenged statements amount to conclusions of law masquerading as

findings of fact, and the record demonstrates that the trial court judge was consciously aware of

his dual role as “trier of fact” and judge during the bench trial. CP at 309. Furthermore, the trial

court’s conclusions of law 2 through 13 clearly indicate that the judge required the State to prove

each charge beyond a reasonable doubt. For example, the trial court’s conclusion of law 2 states,

“The State has not proved beyond a reasonable doubt that the defendant is guilty as charged in

Count I for attempted first degree murder.” CP at 345. Similarly, conclusion of law 3 indicates

“[t]he State has proved beyond a reasonable doubt that the defendant is guilty of the lesser-

included crime of attempted second degree murder for Count I.” CP at 346. The findings

disclosing the trial court’s thought processes and its credibility determinations are not

inconsistent with the beyond a reasonable doubt standard. We hold that the trial court applied

the proper standard of guilt, beyond a reasonable doubt, to all of Teafatiller’s charges.




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No. 47163-9-II


2.      LFOs

        Teafatiller argues that the trial court erred by failing to make an individualized inquiry

into her ability to pay discretionary LFOs. She did not raise this challenge at trial. Although

Teafatiller was sentenced after our opinion in State v. Lyle, 188 Wn. App. 848, 850, 355 P.3d

327 (2015), remanded, 184 Wn.2d 1040 (2016), we follow our Supreme Court’s decision in

State v. Marks, 185 Wn.2d 143, 368 P.3d 485 (2016), and exercise our discretion to reach the

issue despite its not being raised at trial.

        In State v. Blazina, our Supreme Court held that a trial court must make an individualized

inquiry into an offender’s ability to pay before imposing discretionary LFOs. 182 Wn.2d 827,

839, 344 P.3d 680 (2015). In this instance, the trial court’s inquiry regarding Teafatiller’s ability

to pay consists only of the boilerplate language similar to the language found inadequate in

Blazina. In addition, Blazina noted that the trial court’s inquiry into a defendant’s ability to pay

should encompass several factors, including how a defendant’s incarceration may affect the

individual’s ability to pay. 182 Wn.2d at 839.

        The record does not demonstrate that the trial court considered Teafatiller’s 302.25

month sentence (just over 25 years) when determining her ability to pay. Also, Teafatiller was

found indigent after trial. Because the record in this case does not show that the trial court

conducted an individualized inquiry into Teafatiller’s ability to pay, we reverse the LFOs

imposed, and we remand to the trial court for reconsideration of discretionary LFOs consistent

with our Supreme Court’s opinion in Blazina. Because we remand on this ground, we need not

address Teafatiller’s ineffective assistance of counsel argument based on the same issue.




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No. 47163-9-II


                                              CONCLUSION

        We hold that the trial court properly applied the beyond a reasonable doubt standard of

guilt. We also hold that the record does not reflect the required individualized inquiry into

ability to pay prior to the imposition of discretionary LFOs. We therefore affirm Teafatiller’s

convictions, reverse the LFOs imposed, and remand to the trial court for an individualized

inquiry into Teafatiller’s ability to pay discretionary LFOs.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      BJORGEN, C.J.
 We concur:



 JOHANSON, J.




 LEE, J.




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