NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: August 26, 2025
S25A0868. FOSTER v. THE STATE.
PINSON, Justice.
Trever Andre Foster was convicted of felony murder and cru-
elty to children in connection with the death of Elisha Jones, a child.1
1 Elisha died on May 3, 2012. On May 18, 2012, a Wayne County grand
jury indicted Foster for felony murder predicated on cruelty to children in the first degree (Count 1) and cruelty to children in the first degree (Count 2). Fos- ter was tried before a jury from May 20 to 21, 2013. He was found guilty of both counts. Foster was sentenced to life in prison without the possibility of parole for felony murder, and the other count merged for sentencing. Foster filed a timely motion for new trial through trial counsel, and also filed a timely pro se motion for new trial. (It is unclear whether the trial court recognized the pro se filing. In any event, the only claims of error that the trial court ulti- mately addressed were those that Foster asserted in his brief in support of his last amended motion for new trial.) On October 2, 2019, Foster filed an amended motion for new trial through new counsel. He later obtained different appellate counsel and filed a second amended motion for new trial on May 20, 2021, and then obtained a third appellate counsel and filed a third and a fourth amended motion for new trial on August 12, 2022 and June 13, 2023, respec- tively. Foster waived a hearing, and the trial court denied the motion for new trial, as amended, on February 15, 2024. Foster filed a timely notice of appeal. The case was docketed to the April 2025 term of this Court and submitted for a decision on the briefs. On appeal, he contends that insufficient evidence supported his con-
victions and that the trial court erred by refusing to grant a contin-
uance so that Foster could obtain a new attorney.
Those claims fail. The evidence was sufficient for a rational
jury to find that Foster inflicted injuries on Elisha that caused his
death, and to reject as unreasonable any hypothesis that Elisha’s
fatal injuries happened some other way. And the trial court acted
within its discretion in denying Foster’s request for a continuance,
because there was no evidence that his counsel was unprepared for
trial and Foster did not show any reason that a different counsel
should be appointed. So Foster’s convictions are affirmed.
1. Elisha was three years old. On May 2, 2012, he was living
with his mother, Brittany Jones, and Jones’s boyfriend, Foster. Eli-
sha went to school that morning, and he came home in the afternoon,
just as usual. Neither his teachers nor his mother noticed any unu-
sual behavior or serious injuries.
That evening, Elisha stayed home with Foster while Jones
worked an evening shift at her job. Midway through her shift, Jones
2 called home to check on Elisha. Foster said that everything was fine
and that Elisha was in the bathtub, and Jones heard water splash-
ing in the background. But about an hour later, at 9:30 p.m., Foster
called Jones at work to report that Elisha’s breathing was “sounding
kind of funny.” Elisha had asthma, and Foster did not know how to
give him home treatment for an attack. Jones asked if she should
come home to administer the treatment. But Foster said Elisha was
“fine,” so Jones stayed at work until her shift ended.
At 10:00 p.m., Foster picked up Jones from work. Foster had
not brought Elisha with him in the car, and Jones was upset that
Foster had left him home alone. When Foster and Jones got home,
less than 20 minutes later, Elisha appeared to be asleep. Jones be-
gan to give him an asthma treatment. But after several minutes of
treatment, Elisha did not wake up.
Jones took Elisha to the local hospital. Foster did not come with
them. As Jones was on the way to the hospital, Foster called and
told her that, while Jones was at work, Elisha had tripped and fallen
as he was playing with the dog.
3 Jones arrived at the emergency room. Elisha was in critical
condition, not breathing, and was rushed to treatment. While the
hospital staff were working on him, they noticed bruising on his
body. The staff told Jones what they had seen, and they called the
police to report suspected child abuse.
Officers went to the family home. Foster was there, along with
two friends. He was in the process of cleaning something that he said
had spilled on the floor. Foster told the officers that Elisha had
tripped while chasing the dog and had fallen down the steps outside
the back door. The officers gave Foster permission to get a ride to
the hospital with his two friends.
Meanwhile, another deputy had been dispatched to the hospi-
tal. The deputy saw that Elisha had what appeared to be “fresh” in-
juries to his body. The deputy and a detective then spoke with Jones,
who relayed what she had heard from Foster about Elisha tripping
while playing with the dog. While the officers were speaking with
Jones, Foster arrived at the hospital, driven by the two friends. The
officers heard Foster tell the friends not to leave, because, “I don’t
4 trust this b**ch. I may be in handcuffs.” The officers interviewed
Foster, who repeated that Elisha had fallen while playing with the
dog.
Elisha died the next day, at a different hospital to which he had
been airlifted. A medical examiner did an autopsy and testified at
trial about Elisha’s injuries. Elisha had 81 separate bruises, cuts,
and abrasions to his head, face, chest, abdomen, back, and limbs,
including at least one that was consistent with being struck by
“something long and narrow, like a stick.” Some of these injuries
were older and in some stage of healing, but many were acute. Eli-
sha also had swelling of his brain and bleeding inside his skull,
which the medical examiner testified was consistent with the head
hitting a wall or being struck with a blunt instrument, although it
could also be consistent with a fall. The medical examiner concluded
that Elisha died from “battered child syndrome”: he had “undergone
a severe beating” and had died from acute injuries, primarily the
injuries to his head.
5 Foster was arrested. He waived his Miranda 2 rights and gave
an interview to police. In that interview, he told the same story
again about Elisha falling while playing with the dog. But a little
over a week later, Foster, from jail, asked to speak with a detective
again. This time, Foster’s story changed. Foster admitted that he
had lied about Elisha tripping over the dog. Instead, Foster told the
detective that some of Elisha’s injuries were inflicted when Foster
hit Elisha with a belt to punish him for defecating on himself. Foster
said, “I beat that child and I’ll take that charge,” referring to the
charge of cruelty to children. But Foster maintained that the fatal
injuries to Elisha’s head were “accidental.” He said that Elisha had
been jumping on the couch and “came off the couch and hit the living
room floor.”
Foster testified at trial, and there his story changed again. Fos-
ter said at trial that Elisha’s fatal injuries were the accidental result
of “horse playing.” He said that he was picking up Elisha and
2 Miranda v. Arizona, 384 US 436 (1966).
6 “throw[ing]” him playfully on the bed, and that when he threw Eli-
sha on the couch, Elisha “bounce[d] off and hit[ ] the floor,” face first.
Elisha seemed “in a daze” afterward, so Foster put him under a luke-
warm shower. But Elisha did not like the water running over his
face, so he scratched at his face, injuring himself further. Elisha
then defecated on himself. Foster took Elisha to the other bathroom
to clean him up further in the tub, but then Elisha defecated again
in the tub. So Foster got Elisha out of the tub, cleaned him up,
dressed him in his pajamas, and laid him down in his bed. At that
point, Elisha was “acting like regular,” so Foster thought the emer-
gency was over. Once Elisha was asleep, Foster went to pick up
Jones from her job. But after they returned home, Elisha was not
responsive, and at that point Jones took Elisha to the hospital.
With respect to the extensive bruising on Elisha’s body, Foster
denied inflicting any of the injuries. He testified that he did not
know how the bruising got there, but he said he had seen Jones use
physical discipline with Elisha, and he intimated that Jones caused
the bruising, saying, “only one other person could have done that.”
7 Foster also explained at trial why his story had changed. He
said that Jones had been the one to come up with the “tripping over
the dog” story. According to Foster, Jones called him from the hos-
pital and told him that police were “asking questions,” and further
told him that she had told police that Elisha had fallen down the
back porch stairs. Foster said that he initially repeated that story to
police, because he knew that “if I was to tell my story, that every-
thing would be pointing at me.” But he changed his account when
he was charged with murder. Foster said that a detective told him
he was “going to have to take” a charge. Foster had seen the bruising
on Elisha’s body — although, again, he denied inflicting any of it —
so he told the detective that he had disciplined Elisha with a belt,
hoping that his story would fit the bruising and that he would be
charged only with cruelty to children. Foster said that his trial tes-
timony was, at last, the real truth, which “should have been heard
from the beginning.”
2. Foster claims that the evidence was not sufficient to sustain
his convictions, either as a matter of constitutional due process or
8 under Georgia statutory law. He contends that the State did not
prove beyond a reasonable doubt that Elisha died from injuries in-
flicted by Foster on May 2, 2012, and not from injuries inflicted by
someone else on or before that day.
We evaluate a due process challenge to the sufficiency of the
evidence by “viewing the evidence presented at trial in the light most
favorable to the verdicts, and asking whether any rational trier of
fact could have found the defendant guilty beyond a reasonable
doubt.” Henderson v. State, 317 Ga. 66, 72 (2023). “[C]onflicts or in-
consistencies in the evidence, credibility of witnesses, and reasona-
ble inferences to be derived from the facts” are for the jury to resolve.
Perkins v. State, 313 Ga. 885, 891 (2022). And as a matter of Georgia
statutory law, a conviction that rests only on circumstantial evi-
dence cannot stand unless the evidence “exclude[s] every other rea-
sonable hypothesis save that of the guilt of the accused.” OCGA § 24-
14-6. Importantly, though, the evidence need not exclude every other
“conceivable inference or hypothesis” — only every reasonable one.
See Bates v. State, 317 Ga. 809, 814 (2023). Whether an alternative
9 hypothesis is “reasonable,” and whether the circumstantial evidence
excludes any such hypotheses, are questions for the jury, see id., and
we will not disturb the jury’s findings unless they are “insupportable
as a matter of law,” Graves v. State, 306 Ga. 485, 487 (2019).
Under those standards, the evidence was sufficient to support
Foster’s convictions. Foster was charged with felony murder predi-
cated on cruelty to children in the first degree. To secure a convic-
tion, the State had to prove beyond a reasonable doubt that Foster
“maliciously cause[d] a child under the age of 18 cruel or excessive
physical or mental pain,” see OCGA § 16-5-70(b) (defining cruelty to
children in the first degree), and that, “in the commission of” that
felony act, Foster “cause[d] the death of” Elisha, see OCGA § 16-5-
1(c) (defining felony murder). The evidence here authorized a ra-
tional jury to conclude that the State had met that burden. The evi-
dence showed that Elisha had no serious injuries on the morning of
May 2, 2012. But after he was alone with Foster for a few hours that
evening, Elisha had dozens of bruises, scrapes, and abrasions, along
with significant head trauma, all of which the medical examiner
10 characterized as a “severe beating” that caused Elisha’s death. A
jury could reasonably conclude that Foster must have inflicted those
injuries, and it could reasonably disbelieve Foster’s self-serving tes-
timony that he did not. See Snipes v. State, 309 Ga. 785, 788–89
(2020) (jury could conclude that defendant was responsible, at least
as a party to the crime, for the death of a child when the child suf-
fered fatal injuries while in the care of the defendant and another
person); Walker v. State, 308 Ga. 33, 35–36 (2020) (jury could con-
clude that the defendant was responsible for the death of a child
when the child suffered fatal injuries while solely in the care of the
defendant). And the jury could credit the medical examiner’s opinion
that those acute injuries “cause[d] the death of” Elisha. See Eubanks
v. State, 317 Ga. 563, 569–71 (2023) (a predicate felony “causes the
death” of a person for felony murder purposes if, among other things,
the death is a “probable or natural consequence” of the felony).
Foster also contends that the evidence does not satisfy the cir-
cumstantial-evidence statute. But the statute does not apply here,
because there was direct evidence of Foster’s guilt: he admitted in
11 his interview from jail that “I beat that child.” See Walker v. State,
314 Ga. 390, 394 (2022) (defendant’s admissions are direct evidence
of guilt). If any direct evidence of guilt is presented, the circumstan-
tial-evidence statute does not apply. See Bates v. State, 317 Ga. 809,
815 (2023). Foster contends that his admission should be discounted
because, under OCGA § 24-8-823, “[a] confession alone, uncorrobo-
rated by any other evidence, shall not justify a conviction.” But as-
suming without deciding that Foster’s statement was indeed a con-
fession that required corroboration, and not a mere incriminating
statement that would not require corroboration, see, e.g., Davis v.
State, 316 Ga. 418, 422 (2023), Foster’s admission was corroborated,
both by the circumstantial evidence discussed above — the fact that
Elisha had no serious injuries until he was left alone with Foster,
and that the injuries he suffered under Foster’s care were deter-
mined to be the cause of death — and by the fact that Foster changed
his story several times to law enforcement, which could reasonably
be understood as an attempt to conceal the truth. Evidence that is
12 circumstantial, or that merely indicates the defendant’s conscious-
ness of guilt, is sufficient to corroborate a confession under OCGA
§ 24-8-823. See Baker v. State, 319 Ga. 456, 460–61 (2024) (confes-
sion was corroborated by evidence including “the circumstances un-
der which the victims were discovered and the various evidence of
[the defendant’s] consciousness of guilt”); Hooper v. State, 313 Ga.
451, 455–56 (2022) (“[N]o specific manner of corroboration of the
confession is required, and corroboration in any particular is suffi-
cient.” (quotation marks omitted)).
3. Foster also contends that the trial court wrongfully denied
his motion for a continuance so that he could have a different lawyer
appointed for trial. In a related claim of error, he contends that the
trial court violated his constitutional right to be appointed the coun-
sel of his choice. We address these contentions in turn.
(a) On the first day of trial, Foster asked to fire his attorney,
J.D. Blevins. Blevins, a public defender with the Brunswick Judicial
Circuit Defender, had been involved with the case for only 10 days,
since he had replaced Foster’s original attorney, who was also with
13 the public defender’s office. Foster said he did not believe Blevins
had had enough time to prepare. But Foster’s second-chair attorney,
Jason Nix, who was also with the public defender’s office, explained
to the court that he had worked with Foster’s original attorney in
preparing for trial, and that Blevins had “received the prepared . . .
case” from the original attorney. Nix also explained that Foster had
been represented by the public defender’s office all along, and that
“the actual attorney who handles his case is determined by the chief
public defender.” Neither Blevins nor Nix said they were not pre-
pared for trial. The trial court noted that the case had already been
delayed by a week to give the attorneys time to prepare. Ultimately,
the court denied the motion for continuance.
The decision whether to grant a continuance is committed to
the sound discretion of the trial court, and the court may grant or
deny a continuance “as the ends of justice may require.” See Blalock
v. State, 316 Ga. 330, 338 (2023). Such a decision will not be dis-
turbed without a clear showing that the court abused its discretion.
See Kimbro v. State, 317 Ga. 442, 446–47 (2023). And a defendant is
14 not entitled to a new trial based on the denial of a continuance un-
less he can show that he was harmed by that denial. See Blalock,
316 Ga. at 339.
The trial court here had discretion to find that the “ends of jus-
tice” did not require a continuance. The court heard that Blevins had
received a “prepared” case from Foster’s previous counsel, and that
Nix was already very familiar with the case. Counsel did not say
that they were unprepared. And Foster himself did not tell the court
that he was dissatisfied with counsel, see Greene v. State, 274 Ga.
220, 221 (2001) (trial court had discretion to refuse to allow the de-
fendant to obtain new counsel when, among other things, the de-
fendant never expressed dissatisfaction with his attorney), or that
there was any specific reason that a continuance would be helpful,
such as to allow more time to retain an expert or subpoena a witness.
He said only that he “[didn’t] feel like [ten days was] enough for
[Blevins] to be ready for a trial.” We have upheld the denials of con-
tinuances against better-articulated reasons than that for granting
one. See, e.g., Reed v. State, 314 Ga. 534, 549–51 (2022) (trial court
15 had discretion to deny continuance when defense stated that it
needed time to “fully investigate” a “surprise” witness for the prose-
cution); Harris v. State, 314 Ga. 370, 373–74 (2022) (court had dis-
cretion to deny continuance when defense asked for more time to
locate witnesses); Keller v. State, 308 Ga. 492, 501–02 (2020) (court
had discretion to deny continuance when defense requested more
time to retain a medical expert). And in any event, Foster has not
shown on appeal how a continuance would have helped his case —
as he must do to have his convictions reversed on that basis. See
Blalock, 316 Ga. at 339. See also Anglin v. State, 312 Ga. 503, 510
(2021) (defendant who had been denied a continuance was not enti-
tled to a new trial because he “fail[ed] to show how the lack of addi-
tional time harmed him”). This claim therefore fails.
(b) Foster also contends that the denial of a continuance de-
prived him of his right under the Sixth Amendment to the United
States Constitution “to be represented by counsel of one’s own
choice.”
The Sixth Amendment guarantees a criminal defendant the
16 right to “have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. Applying that right, the United States Supreme Court
has held that a defendant is entitled to a “fair opportunity to secure
counsel of his own choice.” Luis v. United States, 578 US 5, 11 (2016)
(quoting Powell v. State of Alabama, 287 US 45, 53 (1932)). But a
defendant who relies on counsel provided by the State, as Foster did
at trial, is not entitled to have the counsel of his choice appointed.
See id. at 12 (“[A]n indigent defendant, while entitled to adequate
representation, has no right to have the Government pay for his pre-
ferred representational choice.”). That said, it may be an abuse of
discretion to deprive a defendant of the appointed counsel of his
choice if there are “objective considerations favoring the appoint-
ment of the preferred counsel” and no “countervailing considerations
of comparable weight.” Davis v. State, 261 Ga. 221, 222 (1991).
Here, Foster relied on counsel provided by the State, so he had
no constitutional right “to have the Government pay for his pre-
ferred representational choice.” Luis, 578 US at 12. And no “objec-
tive considerations” favored appointing another counsel instead of
17 Blevins. See Davis, 261 Ga. at 222. But that is almost beside the
point, because in any event, Foster did not ask for different counsel.
He merely suggested that his current counsel, Blevins, may not have
had enough time to prepare for trial. It is hard to see how a claim
that one was deprived of one’s counsel of choice could prevail when
one did not even specify a counsel of choice. And as discussed above,
Foster’s suggestion that Blevins may have needed more time to pre-
pare did not require the trial court to grant a continuance. This
claim therefore fails.
Judgment affirmed. All the Justices concur.