Opinion
No. 15–P–1551.
10-31-2016
COMMONWEALTH v. Vilasone RATTANAVONG.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a District Court jury trial, the defendant was convicted of indecent assault and battery on a person fourteen years of age or older. See G.L. c. 265, § 13H. On appeal, he argues that the trial judge erred in denying his motion for a required finding of not guilty. We affirm.
Background. Taken in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the Commonwealth's evidence may be summarized as follows. On July 10, 2013, the victim had dinner and drinks out, and then went home. She later accepted an invitation to meet a friend at a bar, where her friend introduced her to the defendant; however, she did not engage with him socially. Later that night, she went home with her friend, entrusting her car to the defendant, who was to return the keys later by dropping them off at the friend's house.
The victim had a “good buzz” from alcohol. After consensual sex with her friend, she fell asleep in his upstairs bedroom at about 12:30 A. M., while her friend fell asleep elsewhere in the house. About two hours later, the victim woke up in pain and realized that a man was vaginally penetrating her with his penis. Initially believing it was her friend, she tried to push him off. She then turned around and saw it was the defendant. Only after making eye contact with him did she succeed in pushing him off. He gathered his clothes and left, telling her, “Don't move.” The victim experienced a surge of emotions including terror and anger, and was crying hysterically.
Discussion. The defendant's appeal concerns only the issue of consent. Citing cases involving a sexual assault victim's incapacity, e.g., Commonwealth v. Blache, 450 Mass. 583, 589–590 (2008), he argues that the Commonwealth must prove not only that the victim was so intoxicated as to be unable to consent, but also that he knew or reasonably should have known of her condition. The defendant fails to recognize that, intoxication aside, the evidence established that the victim was in a deep sleep when he began to penetrate her. The jury reasonably could conclude that she was unable to consent by reason of being asleep, and that the defendant knew or reasonably should have known that was the case.
We note in addition that the evidence would permit a rational jury to find that the defendant continued his assault after the victim attempted to push him away, from which the jury could infer lack of consent.