concurring specially.
I concur with some reluctance, just as the trial judge reached a verdict with reservation. The court found that “the defendant is not relieved from responsibility despite the fact that she’s obviously severely mentally ill. So my verdict [sic] is that she’s guilty but mentally ill.” Such a finding is authorized, if evidentially warranted, by OCGA § 17-7-131 (b) (1) (D) and (2) and (c) (2).1 The court later explained: “If our law in Georgia were different on the subject of mental illness, then my verdict would have been different.” The court *751accepted as fact that the defendant suffered from paranoid schizophrenia, that she had an “obvious and severe mental illness” based on “overwhelming” evidence “that the defendant is severely mentally ill, or in laymen’s terms, she is insane.”
The court examined the evidence under both OCGA § 16-3-2 (the “right and wrong” test) and § 16-3-3, the defense which reheves a defendant of criminal responsibility for an act when “a delusional compulsion as to such act. . . overmastered [her] will to resist committing the crime.” An application of the mental capacity test was rejected, and the focus was on the delusional compulsion defense relied on by VanVoorhis.
The court properly acknowledged the three factors identified by the majority opinion as stated in Appling v. State,2 and considered a fourth relevant factor, that the defendant did not voluntarily and intentionally induce the delusion.3 Although the judge found three of the factors present as a matter of fact, he was not persuaded that the preponderance of evidence proved that “the delusion was as to a fact which, if true, would have justified the act.”4
It is very close, particularly in comparison with the evidence in Stevens v. State.5 The court found that VanVoorhis had a delusion “that her mother might eventually or at some time kill her if she continued to live under that roof and she also had the delusion that her mom was shouting obscenities at her with her mind.”
In applying the law, the court reasoned that neither delusion would justify the aggravated assault with knives. The judge explained: “The obscenities obviously did not justify the use of deadly force and apparently there was no delusion of any immediate physical threat to her from her mother, and only a delusion that her mother was going to immediately use deadly force would have . . . excused [VanVoorhis’] use of deadly force in [those] circumstances.”
Considering the evidence, the court could have found that the delusion of the current shouting of obscenities indicated to defendant that her chronic fear of being killed by her mother was soon to be justified so that a belief arose that it became “necessary to defend [herself] . . . against [her mother’s] imminent use of unlawful force” against her.6 Imminence could be supplied by combining the two delusions and considering that defendant thought her mother would kill her because she (the daughter) lived there as in fact she did cur*752rently live with her in the mobile home. As the psychiatrist testified, “[s]he was in a confused psychotic state and she was having trouble thinking clearly. I think she was acting sort of in self-defense, a preemptive strike, if you will.” The testimony of several witnesses who were present just after the attack, as well as the victim, indicated without any contradictory evidence that she was in a psychotic state at the time and she told the officer that her mother would have killed her if she had not attacked first.
We are compelled to affirm the judgment of conviction because there is sufficient evidence to support it, under the standard of Jackson v. Virginia.7 It is factually in line with Nelson v. State8 and Salter v. State9 in that both of those cases involve insanity defenses of defendants who suffered from paranoid schizophrenia with action-prompting delusions. In both of them the defense was asserted and measured under the right-wrong test of OCGA § 16-3-2 alone; delusional compulsion was not offered as a defense. Predictably, both Salter and Nelson lost on the right-wrong test. The application of the delusional compulsion test to the evidence favoring the finding in VanVoorhis’ case does not require a different result from the commonly shared ultimate finding of guilty but mentally ill.
In addition, we are compelled to apply the delusional compulsion test recognized as the law in Georgia over 150 years ago10 as it is currently construed under the 1968 statute11 via the four-part test despite advances in psychiatry.
In reaching its ultimate finding, the judge was aware of the consequences of finding VanVoorhis not guilty by reason of insanity versus guilty but mentally ill. OCGA § 17-7-131 (d) requires detention by the Department of Human Resources for possible commitment to a mental health facility of persons found not guilty by reason of insanity; whereas OCGA § 17-7-131 (g) authorizes imprisonment of a person found guilty but mentally ill. But the trial court did not take consequences into account in reaching its decision as to guilt or innocence, which would have been error just as it would be if a jury did so. See Lewis v. State, 158 Ga. App. 575 (281 SE2d 318) (1981). See Moore v. State, 228 Ga. 662, 665 (5) (187 SE2d 277) (1972).
The court did consider probation with mental health treatment *753but rejected it in favor of imprisonment, in express deference to its duty as articulated in the Georgia Bill of Rights.12 The court stated: “As to what sentence should be imposed, my first duty is to protect the community and the community includes the defendant at the bar who could harm herself or what — in this case — what if she’d stabbed her mother through the heart and the mother was dead? That could happen next time. It could have happened this time and the sentence is twenty years to serve.”
Decided October 16, 1998. Darden & Moyers, Richard M. Darden, for appellant. Spencer Lawton, Jr., District Attorney, Kimberly Rowden, Assistant District Attorney, for appellee.Because there was no legal error as defendant enumerates, I concur.
I am authorized to state that Judge Ruffin joins in this special concurrence.
Ga. Const., Art. I, Sec. I, Par. II: “Protection to person and property is the paramount duty of government and shall be impartial and complete.”
Salter v. State, 257 Ga. 88, 90 (3) (356 SE2d 196) (1987), describes the application of this category.
222 Ga. App. 327, 329 (3) (474 SE2d 237) (1996).
See Bailey v. State, 249 Ga. 535, 537 (1) (291 SE2d 704) (1982); Choice v. State, 31 Ga. 424 (1860).
Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1996).
Id. at 440.
OCGA § 16-3-21 (a) (use of force in defense of self). The trial judge recognized this.
443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
254 Ga. 611 (1) (331 SE2d 554) (1985).
257 Ga. 88, 89 (1) (356 SE2d 196) (1987).
Roberts v. State, 3 Ga. 310 (1847); Flanagan v. State, 103 Ga. 619, hn. 2 (30 SE 550) (1898) (sufficient evidence of delusional compulsion under three-part test. “Will is as necessary an element of intent as are reason and judgment.” Id. at 626 (2)). See also Mars v. State, 163 Ga. 43, 52-53, 60 (4) (135 SE 410) (1926); Taylor v. State, 105 Ga. 746, hn. 1 (31 SE 764) (1898).
Ga. L. 1968, pp. 1249, 1270, § 1.