NAHMIAS, PRESIDING JUSTICE.
2005, Appellant Calvin Foster shot and killed his estranged
wife, Daphne Foster ("Daphne"). He was tried and
convicted of malice murder and a firearm offense in 2006, but
this Court reversed the convictions in Foster v.
State, 283 Ga. 47 (656 S.E.2d 838) (2008). In 2009,
Appellant was retried and convicted of the same offenses.
After long delays in post-trial proceedings, he now appeals,
arguing that there was insufficient evidence to support his
convictions and that the trial court gave inconsistent jury
instructions. We affirm.
Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant's trial in 2009 showed
the following. In March 2005, Appellant and Daphne separated,
and she moved to a house in Augusta several miles away from
Appellant. Despite their separation, Appellant would pick up
Daphne from her house to take her to work a couple of times a
week. On September 24, Daphne told her sister that she was
planning to divorce Appellant.
September 27, Daphne's brother saw Appellant at her house
at 6:00 a.m. and assumed that he was taking Daphne to work.
Around 8:30 a.m., Brenda Riviera, one of Appellant's
neighbors, was eating breakfast when she heard someone
banging at her front door, ringing the doorbell, and crying
loudly for help. Before Riviera could react, she heard a
series of loud gunshots. She opened the door and saw Daphne
lying on the porch, still breathing but seriously injured.
Riviera called 911. After hearing the gunshots, two other
neighbors saw Appellant walking around the side of his house
to Daphne's car, which was in his driveway. Appellant
entered the car and drove off. He appeared to be in no rush.
Daphne was taken to the hospital, where she soon died.
left a voicemail for Daphne's brother-in-law, in which
Appellant said, "I just shot Daphne." Around 9:30
a.m., Appellant called 911, saying that he needed to speak to
someone about what he had done; he told the dispatcher,
"I shot my wife. . . . I'm getting ready to turn
myself [in]." An officer located Appellant on the side
of a road about a mile from the crime scene. Appellant was
covered in blood. The officer arrested Appellant and
attempted to advise him of his rights as required by
Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16
L.Ed.2d 694) (1966), but Appellant kept interrupting to ask
about Daphne, saying repeatedly, "I didn't mean to
trial, the medical examiner who conducted Daphne's
autopsy testified that her cause of death was multiple
gunshot wounds - one to her head and one to her neck from
bullets fired from an indeterminate range, and one to her
back from a bullet fired with the gun's muzzle against
her skin. Six cartridge casings were found at the scene of
the shooting, and DNA collected from Appellant's
bloodstained clothes matched Daphne's DNA.
presented an insanity defense. He called Dr. James Stark, who
was qualified as an expert in forensic psychology. Based on
an evaluation of Appellant in May 2006, Dr. Stark testified
that Appellant had learning disabilities and an
"essentially average IQ"; his "reading,
writing, spelling, and arithmetic [were] at fifth through
seventh grade levels." Dr. Stark also testified that he
thought Appellant had a transitory psychotic episode and did
not know the difference between right and wrong at the time
of the shooting. On cross examination, however, Dr. Stark
admitted that he had come to a different conclusion in his
report written in July 2006. In that report, Dr. Stark
concluded that at the time of the shooting, Appellant did
know the difference between right and wrong and was not
acting under a delusional compulsion. Dr. Stark claimed that
he had changed his conclusion "after thinking about it
and pondering on it more," although he never submitted
an addendum to his written report.
rebut Appellant's insanity defense, the State called Dr.
Elizabeth Donnagan, who was also qualified as an expert in
forensic psychology. Dr. Donnagan had evaluated Appellant in
September 2006 and had reviewed police reports, witness
statements, and Appellant's own statements to the police.
Dr. Donnagan concluded that at the time of the shooting,
Appellant was able to tell the difference between right and
wrong and was not suffering from a delusional compulsion. In
addition, Daphne's sister and brother-in-law testified
that Appellant had not shown signs of mental illness in the
years they knew him. Appellant's neighbors and the
arresting officer also testified that on the day of the
shooting, Appellant did not appear to be talking to himself
or responding to sights only he could see. Appellant did not
contends that the evidence presented at his trial was
insufficient to support his convictions, because Dr.
Stark's testimony that Appellant was unable to discern
right from wrong at the time of the shooting created a
reasonable doubt as to whether he could form the intent
required for malice murder. See OCGA § 16-5-1 (a)
("A person commits the offense of murder when he
unlawfully and with malice aforethought, either express or
implied, causes the death of another human being."). It
is the province of the jury, however, to weigh evidence and
resolve conflicts in testimony. See Vega v. State,
285 Ga. 32, 33 (673 S.E.2d 223) (2009). The jury in this case
considered competing expert testimony along with the other
evidence and found Appellant guilty. When viewed properly in
the light most favorable to the verdicts, the evidence
presented at trial and summarized above was sufficient to
authorize a rational jury to reject Appellant's insanity
defense and to find him guilty beyond a reasonable doubt of
the crimes for which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d
560) (1979). See also Bowman v. State, Case No.
S19A0428, 2019 WL 2332552, at *3 (decided June 3, 2019)
("[T]here was competing expert testimony concerning [the
defendant's] sanity, and the jury was not required to
accept the opinion of the defense experts."); Alvelo
v. State, 290 Ga. 609, 612-613 (724 S.E.2d 377) (2012).
Appellant also contends that the trial court erred by giving
the jury inconsistent instructions regarding its
consideration of his punishment. In deciding whether jury
instructions were misleading or confusing, we consider the
disputed charges in the context of the instructions as a
whole. See Carpenter v. State, ____ Ga.____ (827
S.E.2d 250, 253) (2019). We see no error in the instructions
the trial court gave.
required by OCGA § 17-7-131 - and as we held that the
trial court failed to do fully in Appellant's first
trial, resulting in the reversal of his convictions, see
Foster, 283 Ga. at 48-50 - the trial court gave the
jury the following instructions based on Appellant's
assertion of an insanity defense:
I charge you that should you find the defendant not guilty by
reason of insanity at the time of the crime[, ] the defendant
will be committed to a state mental health facility until
such time, if ever, the Court is satisfied that he should be
released pursuant to law.
Members of the jury, I charge you that if and only if you do
not find the defendant not guilty by reason of insanity then
you may consider whether or not the defendant was mentally
ill. . . . [T]he term mentally ill means having a disorder of
thought or mood that significantly impairs judgment,
behavior, capacity to recognize reality, or ability to cope
with ordinary demands of life. The term mentally ill does not
include a mental state shown only by repeated, unlawful, or
antisocial conduct. . . .
[S]hould you find the defendant guilty but mentally ill at
the time of the crime[, ] the defendant will be placed in the
custody of the Department of Corrections [w]hich will have
responsibility for the mental health needs of the defendant[,
] [w]hich may include at the discretion of the Department of
Corrections referral or temporary ...