Sanders v. State

529 P.2d 206 (1974)

Ellis SANDERS, Appellant,
v.
The STATE of Nevada, Respondent.

No. 7505.

Supreme Court of Nevada.

December 23, 1974.

Morgan D. Harris, Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty., and Dan M. Seaton, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Ellis Sanders, the appellant, was found guilty of rape. The sole issue raised on appeal is the sufficiency of the evidence as to the victim's identification of Sanders as the perpetrator of the crime.

The defendant, Sanders, contends that due to an inconsistency in the victim's description of her assailant made shortly after the attack upon her and testimony offered by Sanders as to his appearance on the date the criminal act took place, and the nature of the circumstances of the attack, in that the victim only observed her assailant momentarily after just awakening from a nap and only having observed his hand and facial profile, there was not sufficient evidence of identification.

The evidence shows that the victim had an opportunity to observe her assailant clearly while he was standing under a light, even though only for a short period of time, and that the assailant spoke to her several times during the course of the commission of the crime. Based on this, the victim made an unequivocal and positive lineup identification and voice identification of Sanders as her assailant prior to trial and again at trial positively identified him as the culprit. Testimony offered at trial indicated that the description given by the victim shortly after the crime fit Sanders except for the discrepancy as to the assailant being clean shaven and the testimony offered by Sanders to show that on the date in question he had a goatee and a slight mustache. As to this, the evidence showed that Sanders' facial coloring and goatee and mustache were of such nature that the goatee and mustache could be missed under the circumstances that the victim observed Sanders, in that he was approximately 15 feet from her when she observed him, she observed him for only a short time, and the goatee was short and the mustache slight.

Where there is substantial evidence to support a verdict in a criminal case, as the record indicates exists in this case, the reviewing court will not disturb the verdict nor set aside the judgment. Henry v. State, 83 Nev. 194, 196, 426 P.2d 791 (1967).

Affirmed.