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Final Copy 288 Ga. 98 S10A1004. FOSTER v. THE STATE. HINES, Justice. Robert Dwight Foster appeals his convictions for malice murder, aggravated assault, burglary, and criminal damage to property in the second degree, in connection with the death of Tacara Judon and the injury of Ronald Porter. For the reasons that follow, we affirm.1 Construed to support the verdicts, the evidence showed that Foster and Octavia Robinson (formerly Octavia Judon) were involved in a romantic relationship. Robinson ended the relationship in July 2003 because Foster

The crimes occurred on February 6 or 7, 2004. On October 6, 2004, a Clayton County grand jury indicted Foster for malice murder, felony murder while in the commission of aggravated assault, felony murder while in the commission of burglary, the aggravated assault of Tacara Judon with the intent to murder her, the aggravated assault of Tacara Judon with a deadly weapon, the aggravated assault of Ronald Porter with the intent to murder him, the aggravated assault of Ronald Porter with a deadly weapon, burglary, and criminal damage to property in the second degree. On November 1, 2004, the State filed a notice of its intent to seek the death penalty. Foster was tried August 20-26, 2007, and was found guilty on all counts. On August 27, 2007, Foster was sentenced to life in prison without the possibility of parole for the malice murder, separate terms of twenty years in prison for the aggravated assault of Ronald Porter with the intent to murder him and the burglary, and five years for criminal damage to property in the second degree, all to be served consecutively to the life term and to each other; the remaining convictions were either merged into other crimes or stood vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-374 (4) (5) (434 SE2d 479) (1993). Foster moved for a new trial on August 29, 2007, and amended the motion on August 19, 2008. The motion was denied on May 28, 2009, and Foster filed a notice of appeal on June 29, 2009. His appeal was docketed in this Court for the April 2010 Term, and argued on June 14, 2010.

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was jealous and possessive. The pair reestablished contact in January 2004, but did not date again. On February 6, 2004, Robinson turned down Foster's request for a date and said that she had plans. Robinson and her friend Kwantez Dennis spent some time that evening with Robinson's two children, daughter Tacara Judon, aged five, and son Ronald Porter, aged ten. Foster telephoned Robinson during dinner and she told him she would return his call. Robinson and Dennis later left the children at home alone while they went to a nearby movie theater to see if there were enough seats for the four to see a movie; at the time they left, the children were asleep. Shortly after midnight, while Dennis was inside the theater, Robinson received a phone call from Foster that originated from her home phone. Foster was angry that Robinson was not with him and, in a profanity-laced tirade, said that he had damaged her garage, Dennis's truck, and her bedroom; he then said "your kids are home and they're going to die." Robinson rushed home in her car and found that Dennis's vehicle had been rammed through a garage door of the house; the front door to the house was open. She went to Ronald's room; he was lying on the floor severely
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beaten. Robinson went to Tacara's room; she was lying in a pool of blood in her bed, beaten, and had no pulse. Tacara died of multiple blunt force trauma injuries to the head; her death was not instantaneous. Ronald suffered similar injuries resulting in brain damage that required extensive hospitalization, surgery, and physical rehabilitation; he remains deaf in one ear. He also suffered a broken hand and other defensive injuries during the attack. When police officers arrived at Robinson's residence, they found the mailbox knocked over, and a cordless telephone from the house attached to it. A bloody tire lug wrench was lying on the kitchen floor, the picture tube of the television in the master bedroom was broken, and blood was on the 9 and 1 keys of the telephone. A second garage door, next to the one rammed by Dennis's truck, had also been broken inwards. Very early on February 7, 2004, law enforcement personnel received a 911 call from Foster; he identified himself, said he was at Robinson's address, reported that he had just tried to kill two children with a tire lug wrench he had taken from his car, and asked the police to come for him as he waited around the corner. He was found in his car; it had extensive front-end damage, his boots were bloodstained, and there was blood on one of his
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hands. At trial, the parties stipulated that the DNA from the blood on the tire lug wrench and Foster's boots matched Ronald Porter's blood, and potentially matched that of Tacara Judon. When interviewed by detectives, Foster initially asked for an attorney, and the detectives said the interview would end, and began to leave. Foster stopped them and asked how the children were doing; he was told that the girl had died and that the boy was badly injured. Foster asked what he was going to be charged with and the detectives told him murder. After a brief conversation, Foster stated "most people don't kill kids, most people don't do that," and he was certain the State would request that the death penalty be imposed. The State sought the death penalty, and after his convictions, Foster was sentenced to life without the possibility of parole for the malice murder charge. 1. Foster contends that the evidence was insufficient to convict him of malice murder and aggravated assault as the indictment alleged that those crimes were committed on February 6, 2004, when the evidence did not establish that the crimes took place on that date, but rather after midnight and
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during the early moments of February 7, 2004. "The State is not required to prove beyond a reasonable doubt that the crimes occurred on the date alleged in the indictment where, as here the indictment does not specifically state that the date of the offense is material." (Citation and punctuation omitted.) Waits v. State, 282 Ga. 1, 3 (2) (644 SE2d 127) (2007). Foster also asserts that the evidence was insufficient to convict him of the crime of burglary because the State failed to prove that he entered or remained in Robinson's house with the intent to commit a felony therein.2 However, intent "may be inferred from conduct before, during and after the commission of the crime." Parks v. State, 272 Ga. 353, 354 (529 SE2d 127) (2000). Foster committed physical violence both outside and inside the house, entered it armed with a tire lug wrench he had taken from his car, and

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As set forth in OCGA

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