dissenting:
Appellant testified that during the struggle she became confused; she thought Robbie was there and that he needed her protection. She felt the need to get away to look for him. The next thing she remembered was hearing a shot; she did not remember firing the gun.
Immediately after the shooting two men disarmed appellant and restrained her until the police arrived. Appellant was unruly and had to be carried up the stairs in the police station. In the station she cried and called for her “mama”. She continued to cry and remained non-communicative. Appellant’s husband contacted an attorney. The attorney testified that he arrived at the jail at eight o’clock, about forty-five minutes after the shooting. He observed the appellant on the floor of her cell, up against the back wall, in a fetal position. She made no acknowledgement of his presence until he reached down and touched her shoulder; she then tucked into a tighter ball. After fifteen minutes she started mewing like a cat and calling for her mama. She was so deranged and incoherent that the attorney could not communicate with her.
Appellant raised insanity as her defense. Expert testimony indicated that appellant had developed a belief system that she was the only one who could protect her son. In testimony the expert explained that appellant had become pregnant with Robbie and that appellant’s mother had tried to force her to get an abortion. Appellant finally agreed, and in a very crude way tried to abort. Once Robbie was born appellant never got over her feelings of guilt for having tried to kill him. Her guilt was intensified by Robbie’s emotional problems. Appellant was diagnosed as paranoid with persecution delusions, a schizophrenic psychosis. Robbie was the trigger for her psychotic episodes.
Appellant asserts the State failed to produce sufficient evidence proving beyond a reasonable doubt that appellant was sane at the time of the offense.
The standard of review for sufficiency of the evidence in criminal cases applied by this Court in the past has been whether the State has established a prima facie case. Jetton v. State, 632 P.2d 432 (Okl.Cr.1981). Such an approach does not put before the Court the issue of whether the State has met its burden of proof beyond a reasonable doubt.
The United States Supreme Court held that proof beyond a reasonable doubt is vital to due process because it gives “concrete substance” to the presumption of innocence and because it reduces the risk of factual error. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Based on this finding the Court decided in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that due process requires a more stringent appellate *380review, a determination of “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789. Joining the majority of other states1 this Court adopted this standard of review in Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985).
Turning to review of the sufficiency of the evidence in a case where appellant’s sanity at the time of the offense is at issue, this Court has traditionally determined whether there was sufficient evidence to raise a reasonable doubt as to the issue. Ingram v. State, 620 P.2d 406 (Okl.Cr.1980). If the evidence was sufficient to shift the burden of proof to the State this Court then applied the following test: “[T]he question of insanity at the time of the commission of the crime, presents a question of fact for the sole determination of the jury, and where there is any evidence tending to support the finding it is not the province of the appellate court to weight the same.” Nauni v. State, 670 P.2d 126, 133 (Okl.Cr.1983) (emphasis added); see also Dare v. State, 378 P.2d 339 (Okl.Cr.1963).
Although the first step should remain the same, in light of Jackson v. Virginia and Spuehler v. State, the second step of review should be whether any rational trier of fact could have found beyond a reasonable doubt proof of sanity at the time of the offense. Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979). This Court still reviews the evidence and inferences which may be reasonably drawn therefrom in the light most favorable to the State, at both levels of this two step determination.
The presumption of sanity prevails until the defendant establishes a reasonable doubt as to her sanity. Once the defendant establishes a reasonable doubt as to her sanity, the presumption of sanity vanishes, and the State must prove beyond a reasonable doubt that the defendant could distinguish between right and wrong. Munn v. State, 658 P.2d 482 (Okl.Cr.1983).
In this case I believe that the appellant raised a reasonable doubt as to her sanity at the time of the commission of the crime. Testimony of appellant’s abnormal and bizarre behavior before, during, and after the offense came from witnesses from both sides. Appellant’s family had a history of psychosis, and her father had been institutionalized. Appellant presented the testimony of a clinical psychologist who had tested her extensively and diagnosed her as psychotic. The expert testified that appellant could not distinguish between right and wrong at the time of the offense as a result of her psychosis.
Given that the State had the burden of proving the appellant’s sanity beyond a reasonable doubt, this Court has the duty to determine whether, in the light most favorable to the State, any rational trier of fact could have found sanity beyond a reasonable doubt.
The M’Naghten Rule is the test for insanity in Oklahoma. Richardson v. State, 569 P.2d 1018 (Okl.Cr.1977). It states that a person is insane when that person is suffering from such a disability of reason or disease of the mind that he does not know that his acts are wrong and is unable to distinguish right from wrong with respect to his acts, or does not understand the nature and consequences of his acts.2 OUJI-CR 729.
The State presented the testimony of a clinical psychologist, Dr. Tuel, who did not examine the appellant and did not have access to testimony regarding appellant’s behavior at the scene of the crime. He misstated in testimony that “the M'Naghten Rule states that it must be clearly proven that the person was suffering from mental disorder at the time of the alleged act so as to be unable to distinguish be*381tween right and wrong to prevent one from doing the act” (emphasis added); he believed that the defense had the burden of proving insanity. Based on this belief he concluded that he could not assert without a doubt that the defendant was mentally ill. He testified that based on the same test results he did not have sufficient information to make an accurate determination; to make such a diagnosis he personally would require more tests. Such testimony succeeded only to undermine testimony offered by Dr. Quijano, the expert for the defense. Nowhere did Dr. Tuel testify that there was any reason to believe that the appellant was legally sane at the time of the offense.
Dr. Tuel further testified that there is a great danger that insanity may be faked. Evidence was offered to prove that appellant had taken several child psychology courses in preparation for a Masters in Education which she received in 1980. Without anything more, evidence that appellant may have the education to fake insanity is not proof that appellant did fake insanity.
The only evidence present in this case which could possibly tend to prove that the appellant appreciated the wrongfulness of her acts is testimony describing a statement made by appellant at the scene of the crime. After the appellant shot Ms. Quinton, appellant exclaimed, “Oh damn, I shot the wrong bitch!” In the light most favorable to the State it is possible that a rational trier of fact could interpret such a statement as a realization of the wrongfulness of the act on the part of the appellant. From the statements which followed, however, no rational trier of fact could believe that the appellant appreciated the wrongfulness or the consequences of her act. Witnesses heard appellant say, “I don’t even know who she was, hut go ahead and die, bitch.” When the young daughter of the victim said, “You killed my mommie,” the appellant retorted, “I will shoot you too.” These comments, even when viewed in the light most favorable to the State, do not prove that appellant could distinguish between right and wrong or understood the nature and consequences of her act.
In my view, the evidence that appellant was legally sane at the time of the offense is practically nonexistent. The State had the burden of proving legal sanity beyond a reasonable doubt. At best the State introduced some evidence of sanity, but failed to introduce enough evidence such that a rational trier of fact could find legal sanity beyond a reasonable doubt. Therefore, I respectfully dissent to this decision.
. Note, Criminal Law: Sufficiency of the Evidence: The Search for A Constitutional Test in Oklahoma, 38 Okla.L.Rev. 159 (1985).
. This was adequately paraphrased in the instructions to the jury.