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Lawskills.com Georgia Caselaw
WEBSTER v. THE STATE.
75898.
DEEN, Presiding Judge.
Burglary, etc. Tift Superior Court. Before Judge Gray, Senior Judge.
Ed Webster was convicted of burglary and rape. On appeal he asserts the general grounds. Held:
A witness from the crime lab testified that a vaginal smear taken from the victim revealed the presence of sperm. A detective recovered a pair of boots and a ten-speed bicycle a few steps from the point of entry which were identified as belonging to the defendant.
On appeal, the defendant attempts to cast doubt upon the identification by claiming that he cannot be distinguished from his twin brother, Ned Webster. While two witnesses did admit that they had difficulty in telling the brothers apart, the neighbor at whose home the victim had seen Ed Webster testified that she knew Ed Webster as Ed Smith and that his brother had not been to her home in October of 1985, and that she had not seen him for a long time. The witness' testimony as to which brother wore the boots found near the crime scene is contradictory. A detective testified that he stopped Ned Webster approximately twenty days after the incident in question while investigating another matter and learned that he had just returned from Texas. A man who identified Ed Webster as a man who was dating his mother during the time period in question, identified the bicycle as the one that the defendant rode, but admitted he had difficulty telling the brothers apart and could not really tell if it was Ed or Ned on the bicycle.
This court cannot consider the credibility of witnesses; any discrepancy in a witness' testimony is a matter for jury resolution. Overton v. State, 230 Ga. 830 (199 SE2d 205) (1973). Questions of identity and credibility of the witnesses are for the trier of fact. Smallwood v. State, 114 Ga. App. 459 (151 SE2d 789) (1966). The trial transcript shows that the jury was adequately instructed as to the state's burden of proof as to identity, that the victim positively identified the defendant as her attacker and there was evidence that his brother was outside the state when the crime was committed. We therefore find that there was both direct and circumstantial evidence identifying the defendant as the perpetrator of the crime. Construing the evidence in favor of the prosecution, we find that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Larry B. Mims, for appellant.
DECIDED FEBRUARY 1, 1988.
Thursday May 21 13:07 EDT


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