13 Mass. App. Ct. 903

January 5, 1982

In the early hours of the morning of June 28, 1980, a fifty-two year old woman was awakened by a strange man in her bedroom who had his hands on her shoulders. Struck with fear, she screamed. The man told her not to scream and said, "I'm a nice man. I'm going to be nice to you." The woman, not knowing what the intruder would do next and fearing that he would kill her, told him she would not scream. The man then performed an act of cunnilingus.

Page 904

The evidence warranted the judge to whom the case was tried to find the foregoing to be fact. Those facts in turn warranted his finding the defendant guilty of unnatural rape. G. L. c. 265, Section 22, as amended by St. 1974, c. 474, Section 1. We need not summarize or discuss what occurred after the acts above described. The trial judge was not required to believe all the testimony concerning such events, or that it showed any consent by the woman to what had previously taken place.

We are not at all impressed with the defendant's argument that he had made no threats and had not acted in a menacing manner, that the only touching prior to the act of cunnilingus was to awaken the victim and that his only words were of reassurance. He submits that he did nothing positive or affirmative to create fear, with the exception of his being there, and argues that as there was no force or threat of bodily injury, as is required to violate G. L. c. 265, Section 22, his motion for a required finding of not guilty should have been allowed.

It does not strain rationality for the judge to have found, as he apparently did, that the carnal act he had heard described was without the consent of the victim and that the acts of the defendant in breaking into the victim's apartment, entering her bedroom, awakening her and indicating his intent to do some unspecified act placed him in a threatening or menacing posture which caused the victim to fear for her life and thus compelled her to submit to the deed. See Commonwealth v. Burke, 105 Mass. 376 , 377 (1870); People v. St. Andrew, 101 Cal. App. 3d 450, 465-466 (1980); People v. LaSalle, 103 Cal. App. 3d 139, 147-148 (1980); Jenkins v. State, 267 Ind. 543, 544-545 (1978); State v. Harvell, 45 N.C. App. 243, 248 (1980).

Judgment affirmed.