In re Vinson

252 S.E.2d 854, 40 N.C. App. 423, 1979 N.C. App. LEXIS 2272

• Court: Court of Appeals of North Carolina
• Decided: March 20, 1979
• Docket: No. 7818DC1096
• Status: Published

Opinions

MARTIN (Robert M.), Judge.

The question dispositive of this case is whether the court erred in denying defendant’s motion for judgment of nonsuit. Defendant does not contest the proof of a crime against Mrs. Vaden. He argues that Mrs. Vaden’s testimony identifying him as her robber and assailant was insufficient to survive his motion for nonsuit. On such motion the evidence is taken in the light most favorable to the State. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967); State v. Hewitt, 34 N.C. App. 109, 237 S.E. 2d 311 (1977).

The State’s evidence shows that Mrs. Vaden identified the defendant as the person who assaulted her and took her money. Mrs. Vaden’s evidence further shows that the defendant used a gun during the robbery. On cross-examination, Mrs. Vaden said, “[In] the face [appellant], looks just like the boy [that robbed me]. Well, it [appellant] looks just like him [the robber] in the face . . .; I could be wrong, but in the face, that’s [appellant is] the boy.” On redirect examination, Mrs. Vaden said, “Yes, he [appellant] looks the same in the face as the boy that I saw that day.” This evidence will survive a motion for nonsuit.

In the trial we find no prejudicial error.

No error.

Judge Mitchell concurs. Judge Webb dissents.