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G.R. No. 179031 : People of the Philippines v. Benjamin Soria y Gomez

G.R. No. 179031 : People of the Philippines v. Benjamin Soria y Gomez

PHILIPPINE SUPREME COURT DECISIONS

SECOND DIVISION

G.R. No. 179031 : November 14, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BENJAMIN SORIA y GOMEZ, Accused-Appellant.

D E C I S I O N

DEL CASTILLO, J.:

This case involves a fathers detestable act of abusing his daughter through rape by sexual assault.

Factual Antecedents

Accused-appellant Benjamin Soria y Gomez (appellant) seeks a review of the December 29, 2006 Decision1ςrνll of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01442 which affirmed with modification the June 30, 2005 Judgment2ςrνll of the Regional Trial Court (RTC) of Quezon City, Branch 94, in Criminal Case No. Q-01-98692. Said RTC Judgment found appellant guilty beyond reasonable doubt of the crime of rape committed against his daughter "AAA",3ςrνll as described in an Information,4ςrνll the relevant portion of which reads:chanroblesvirtuallawlibrary

That on or about the 26th day of February, 2000, in Quezon City, Philippines, the said accused, who is the father of private complainant "AAA", did then and there willfully, unlawfully, and feloniously with force and intimidation commit an act of sexual assault upon the person of one "AAA", a minor, 7 years of age[,] by then and there inserting his penis into [the] genital of said complainant, all against her will and consent, which act debases, degrades, or demeans the intrinsic worth and dignity of said "AAA", as a human being, in violation of said law.

CONTRARY TO LAW.5ςrνll

Appellant pleaded not guilty to the crime charged. Pre-trial and trial thereafter ensued.

Version of the Prosecution

On February 26, 2000, "AAA" and her siblings enjoyed the spaghetti their father (appellant) brought home for merienda. After eating, "AAA" went to the bedroom to rest. Thereafter, appellant also entered the room and positioned himself on top of "AAA", took off her clothes and inserted his penis into her vagina. "AAA" felt intense pain from her breast down to her vagina and thus told her father that it was painful. At that point, appellant apologized to his daughter, stood up, and left the room. This whole incident was witnessed by "AAAs" brother, "BBB".

The pain persisted until "AAAs" vagina started to bleed. She thus told her aunt about it and they proceeded to a hospital for treatment. Her mother was also immediately informed of her ordeal. Subsequently, "AAA" was taken into the custody of the Department of Social Welfare and Development.

On March 15, 2000, Medico-Legal Officer Francisco A. Supe, Jr., M.D. (Dr. Supe) examined "AAA", which examination yielded the following results:chanroblesvirtuallawlibrary

GENERAL AND EXTRA-GENITAL: Fairly developed, fairly nourished and coherent female child. Breasts are undeveloped. Abdomen is flat and soft.

GENITAL: There is absent growth of pubic hair. Labia majora are full, convex, and coaptated with light brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy type, hyperemic and intact hymen. Posterior fourchette is sharp.

CONCLUSION: The subject is in virgin state physically. There are no external signs of application of any form of physical trauma.6ςrνll

Version of the Defense

Appellant admitted that he was at home on the day and time of "AAAs" alleged rape but denied committing the same. Instead, he claimed that the filing of the rape case against him was instigated by his wife, whom he confronted about her illicit affair with a man residing in their community. According to appellant, he could not have molested "AAA" because he treated her well. In fact, he was the only one sending his children to school since his wife already neglected them and seldom comes home.

Ruling of the Regional Trial Court

On June 30, 2005, the trial court rendered its Judgment7ςrνll finding appellant guilty beyond reasonable doubt of the crime of rape against "AAA", his daughter of minor age, as charged in the Information. It ruled that the lack of tenacious resistance on the part of "AAA" is immaterial considering that appellants moral ascendancy and influence over her substitute for violence and intimidation.8ςrνll It also held that his wife could not have instigated the filing of the rape case since as the mother of "AAA", it would not be natural for her to use her child as a tool to exact revenge especially if it will result in her embarrassment and stigma.9ςrνll The trial court gave credence to the testimony of "AAA" and her positive identification of appellant as her rapist, and rejected the latters defense of denial. The dispositive portion of the Judgment reads as follows:chanroblesvirtuallawlibrary

WHEREFORE, premises considered, judgment is hereby rendered finding the herein accused, BENJAMIN SORIA Y GOMEZ − GUILTY beyond reasonable doubt of the crime as charged and sentences him to suffer the supreme penalty of DEATH and to indemnify the offended party the amount of P75,000.00, to pay moral damages in the amount of P50,000.00, and the amount of P25,000.00 as exemplary damages to deter other fathers with perverse proclivities for aberrant sexual behavior for sexually abusing their own daughters.

SO ORDERED.10ςrνll

Ruling of the Court of Appeals

In its Decision11ςrνll dated December 29, 2006, the CA found partial merit in the appeal. While the appellate court was convinced that appellant raped "AAA", it nevertheless noted the prosecutions failure to present her birth certificate as competent proof of her minority. Thus, the CA concluded that the crime committed by appellant against his daughter was only simple rape and accordingly modified the penalty imposed by the trial court from death to reclusion perpetua and reduced the civil indemnity awarded from P75,000.00 to P50,000.00. The dispositive portion of the appellate courts Decision reads as follows:chanroblesvirtuallawlibrary

WHEREFORE, premises considered, the appeal is hereby GRANTED and the June 30, 2005 Decision of the Regional Trial Court of Quezon City, Branch 94, in Criminal Case No. Q-01-98692, is hereby MODIFIED, in that, the penalty imposed is reduced to reclusion perpetua instead of death and the civil indemnity to be paid by the offender to the victim is hereby reduced to the amount of P50,000.00 instead of P75,000.00 pursuant to prevailing jurisprudence as explained in this decision.

Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, this judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed with the Clerk of Court of the Court of Appeals.

SO ORDERED.12ςrνll

Still insisting on his innocence, appellant comes to this Court through this appeal.

Assignment of Errors

Appellant adopts the same assignment of errors he raised before the appellate court, viz:

I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME OF RAPE DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE X X X.

II. ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON HIM.13ςrνll

Appellant asserts that he should be acquitted of the crime of rape since there is no evidence that would establish the fact of sexual intercourse. Aside from the prosecutions failure to prove penile contact, "AAAs" testimony was also wanting in details as to how he took off her underwear or whether she saw his penis during the incident despite leading questions propounded on the matter by the prosecution. The medical report even revealed that "AAAs" hymen remained intact and that there were no notable lacerations or external physical injuries thereon. Appellant therefore surmises that his wife merely instigated "AAA" to file this baseless rape case against him in retaliation for his act of confronting her about her illicit relationship with a neighbor.

Our Ruling

The appeal lacks merit.

The crime of rape under Article 266-A of
the Revised Penal Code (RPC).

Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, classified the crime of rape as a crime against persons. It also amended Article 335 of the RPC and incorporated therein Article 266-A which reads:

Article 266-A. Rape, When and How Committed. Rape is committed

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or is otherwise unconscious,

c) By means of fraudulent machination or grave abuse of authority;

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present;

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

Thus, rape can now be committed either through sexual intercourse or by sexual assault. Rape under paragraph 1 of the above-cited article is referred to as rape through sexual intercourse. Carnal knowledge is the central element and it must be proven beyond reasonable doubt.14ςrνll It is commonly denominated as "organ rape" or "penile rape"15ςrνll and must be attended by any of the circumstances enumerated in subparagraphs (a) to (d) of paragraph 1.

On the other hand, rape under paragraph 2 of Article 266-A is commonly known as rape by sexual assault. The perpetrator, under any of the attendant circumstances mentioned in paragraph 1, commits this kind of rape by inserting his penis into another persons mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. It is also called "instrument or object rape", also "gender-free rape".16ςrνll

The Information did not specify whether
the crime of rape was committed through
sexual intercourse or by sexual assault.

The Information in this case did not specify with certainty whether appellant committed the rape through sexual intercourse under paragraph 1 of Article 266-A, or rape by sexual assault as described in paragraph 2 thereof. The Information stated that appellant inserted his penis into the genital of "AAA," which constituted rape by sexual intercourse under the first paragraph of Article 266-A. At the same time, the Information alleged that appellant used force and intimidation to commit an act of sexual assault. While these allegations cause ambiguity, they only pertain to the mode or manner of how the rape was committed and the same do not invalidate the Information or result in the automatic dismissal of the case. "[W]here an offense may be committed in any of the different modes and the offense is alleged to have been committed in two or more modes specified, the indictment is sufficient, notwithstanding the fact that the different means of committing the same offense are prohibited by separate sections of the statute. The allegation in the information of the various ways of committing the offense should be regarded as a description of only one offense and the information is not thereby rendered defective on the ground of multifariousness."17ςrνll Any objection from the appellant with respect to the Information is held to have been waived failing any effort to oppose the same before trial.18ςrνll He therefore can be convicted of rape through sexual intercourse or rape by sexual assault, depending on the evidence adduced during trial.

The findings of the RTC and the CA on the credibility of "AAA" deserve respect and great weight.

Both the trial court and the CA held that "AAA" was a credible witness. They ruled that her testimony deserved credence and is sufficient evidence that she was raped by appellant. We find no cogent reason to overturn these findings.

It would be highly inconceivable for "AAA" to impute to her own father the crime of raping her unless the imputation is true.19ςrνll In fact, it takes "a certain amount of psychological depravity for a young woman to concoct a story which would put her own father in jail for the rest of his remaining life and drag the rest of the family including herself to a lifetime of shame"20ςrνll unless the imputation is true.

When a rape victims testimony on the manner she was defiled is "straightforward and candid, and is corroborated by the medical findings of the examining physician as in this case, the same is sufficient to support a conviction for rape."21ςrνll

Appellant is guilty of rape by sexual assault and not through sexual intercourse.

The trial courts conviction of the appellant was for rape through sexual intercourse under paragraph 1(a) of Article 266-A. The CA sustained the trial courts finding that appellant had sexual intercourse with "AAA" against her will.

In determining whether appellant is indeed guilty of rape through sexual intercourse under paragraph 1 of Article 266-A, it is essential to establish beyond reasonable doubt that he had carnal knowledge of "AAA". There must be proof that his penis touched the labia of "AAA" or slid into her female organ, and not merely stroked the external surface thereof, to ensure his conviction of rape by sexual intercourse.22ςrνll

We reviewed the testimony of "AAA" and found nothing therein that would show that she was raped through sexual intercourse. While "AAA" categorically stated that she felt something inserted into her vagina, her testimony was sorely lacking in important details that would convince us with certainty that it was indeed the penis of appellant that was placed into her vagina.

When "AAA" was placed on the witness stand, she narrated that:chanroblesvirtuallawlibrary

Q - The earlier statement which you made when you said that you wanted to explain something about your father, is that true?

A - Yes, sir.

Q - So, you said that you wanted to explain something about your father, what was that?

A - What he did, sir.

Q - What was that?

A - I was raped, sir.

Q - What did he do when you said he raped you?

A - He laid on top of me, sir.23ςrνll

x x x

Q - So when you said he laid on top of you, did you feel anything? Did you feel any pain in any part of your body?

A - Yes, sir.

Q - In what part of your body did you feel pain?

A - I felt pain in my breast and my stomach.

Q - What about your private part?

A - Yes, sir.

Q - Did you know why your stomach as well as your body and your private part hurt or become painful?

A - I dont know, sir.

Q - Did you feel something inserted into your private part?

A - Yes, sir.

Q - What is that, if you know?

A - The bird of my papa.

Q - Why did you know that?

A - Because my brother, "BBB", told me.

Q - Why? Was "BBB", your brother, present when your father was on top of you?

A - Yes, sir.

Q - Why do you know that he was there?

A - He told me so, sir.

Q - Who?

A - "BBB".

Q - Okay, when you felt pain as something was inserted [into] your private part, what did you say to your father?

A - He left the room.

Q - Before he went away and left?

A - It was painful, sir.

Q - And what was the answer of your father?

A - He said sorry, sir.

Q - How long was he or how long were you in that position, you were lying down and your father was on top of you?

A - I do not know, sir.24ςrνll

x x x

Q - Earlier, you were making reference to your father whom you said abused you. I am asking you now to tell us if your father is around?

A - Yes, sir.

Q - Will you please point x x x to him?

A - Yes, sir. (Witness pointing to a man who is wearing yellow t-shirt and maong pants who when asked identified himself as Benjamin Soria.)

Q - Is he the same person who according to you laid on top of you and inserted something into your vagina or private part?

A - Yes, sir.25ςrνll

It is evident from the testimony of "AAA" that she was unsure whether it was indeed appellants penis which touched her labia and entered her organ since she was pinned down by the latters weight, her father having positioned himself on top of her while she was lying on her back. "AAA" stated that she only knew that it was the "bird" of her father which was inserted into her vagina after being told by her brother "BBB". Clearly, "AAA" has no personal knowledge that it was appellants penis which touched her labia and inserted into her vagina. Hence, it would be erroneous to conclude that there was penile contact based solely on the declaration of "AAAs" brother, "BBB", which declaration was hearsay due to "BBBs" failure to testify. Based on the foregoing, it was an error on the part of the RTC and the CA to conclude that appellant raped "AAA" through sexual intercourse.

Instead, we find appellant guilty of rape by sexual assault. It cannot be denied that appellant inserted an object into "AAAs" female organ. "AAA" categorically testified that appellant inserted something into her vagina. She claimed to have suffered tremendous pain during the insertion. The insertion even caused her vagina to bleed necessitating her examination at the hospital. Both the trial court and the CA found "AAAs" testimony to be credible. We find no compelling reason not to lend credence to the same.

This defilement constitutes rape under paragraph 2 of Article 266-A of the RPC, which provides that rape by sexual assault is committed "by any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting x x x any instrument or object, into the genital or anal orifice of another person."

Moreover, Dr. Supe corroborated her testimony as follows:chanroblesvirtuallawlibrary

Q - Doctor, with respect to Exhibit A, the Medico-Legal Report pertaining to the entry into the genital, which reads: On separating the hymen, disclosed was an elastic, fleshy type, hyperemic and intact hymen. Will you please tell us, Doctor, what is this hyperemic hymen?

A - Hyperemic hymen, sir, means that at the time of examination, I found out that it was reddish in color.

Q - Considering the age of the child or the patient, the victim whom you examined at that time who was about 6 years old, will you be able to tell us, Doctor, what could have caused this kind of injury, because this is an injury to the hymen?

A - Hyperemic, sir, is observed whenever there is friction applied to an area, such as in the form of scratching.

Q - What about insertion of object, would this result into hyperemic hymen?

A - If the object is being rubbed, sir, there is a possibility.

Q - A finger will produce this kind of injury?

A - Possible, sir.26ςrνll

According to Dr. Supe, it is possible that "AAAs" hyperemic hymen may be the result of the insertion of a finger or object. While Dr. Supe said that the injury could also be attributed to scratching, "AAAs" testimony is bereft of any showing that she scratched her genital organ thus causing the reddening. Appellant would also want to make it appear that the injury of "AAA" was the result of friction from playing or riding a bicycle since the doctor testified that this was also possible. However, there is likewise no evidence that friction was applied on "AAAs" female organ when she played hide and seek with her playmates or that she actually rode a bicycle. On the other hand, "AAA" was categorical in stating that in the afternoon of February 26, 2000, appellant removed her clothes, laid on top of her, and that she felt something being inserted into her vagina and that thereafter she experienced pain in her genitals. The foregoing thus proved that appellant inserted an object into "AAAs" vagina against her will and without consent. Simply put, appellant committed the crime of rape by sexual assault.

The following are the elements of rape by sexual assault:

(1) That the offender commits an act of sexual assault;

(2) That the act of sexual assault is committed by any of the following means:

(a) By inserting his penis into another persons mouth or anal orifice; or

(b) By inserting any instrument or object into the genital or anal orifice of another person;

(3) That the act of sexual assault is accomplished under any of the following circumstances:

(a) By using force and intimidation;

(b) When the woman is deprived of reason or otherwise unconscious; or

(c) By means of fraudulent machination or grave abuse of authority; or

(d) When the woman is under 12 years of age or demented.27ςrνll

In the instant case, it was clearly established that appellant committed an act of sexual assault on "AAA" by inserting an instrument or object into her genital. We find it inconsequential that "AAA" could not specifically identify the particular instrument or object that was inserted into her genital. What is important and relevant is that indeed something was inserted into her vagina. To require "AAA" to identify the instrument or object that was inserted into her vagina would be contrary to the fundamental tenets of due process. It would be akin to requiring "AAA" to establish something that is not even required by law. Moreover, it might create problems later on in the application of the law if the victim is blind or otherwise unconscious. Moreover, the prosecution satisfactorily established that appellant accomplished the act of sexual assault through his moral ascendancy and influence over "AAA" which substituted for violence and intimidation. Thus, there is no doubt that appellant raped "AAA" by sexual assault.

Appellants contentions are untenable.

The failure of "AAA" to mention that her panty was removed prior to the rape does not preclude sexual assault. We cannot likewise give credence to the assertion of appellant that the crime of rape was negated by the medical findings of an intact hymen or absence of lacerations in the vagina of "AAA". Hymenal rupture, vaginal laceration or genital injury is not indispensable because the same is not an element of the crime of rape.28ςrνll "An intact hymen does not negate a finding that the victim was raped."29ςrνll Here, the finding of reddish discoloration of the hymen of "AAA" during her medical examination and the intense pain she felt in her vagina during and after the sexual assault sufficiently corroborated her testimony that she was raped.

Likewise undeserving of credence is appellants contention that his wife merely instigated "AAA" to file the charge of rape against him in retaliation for his having confronted her about her illicit affair with another man. This imputation of ill motive is flimsy considering that it is unnatural for appellants wife to stoop so low as to subject her own daughter to the hardships and shame concomitant with a prosecution for rape, just to assuage her hurt feelings.30ςrνll It is also improbable for appellants wife to have dared encourage their daughter "AAA" to publicly expose the dishonor of the family unless the rape was indeed committed.31ςrνll

Penalty

Under Article 266-B of the RPC, the penalty for rape by sexual assault is prision mayor. However, the penalty is increased to reclusion temporal "if the rape is committed by any of the 10 aggravating/qualifying circumstances mentioned in this article". The Information alleged the qualifying circumstances of relationship and minority. It was alleged that appellant is the father of "AAA". During the pre-trial conference, the parties stipulated that "AAA" is the daughter of appellant.32ςrνll During trial, appellant admitted his filial bond with "AAA".33ςrνll "Admission in open court of relationship has been held to be sufficient and, hence, conclusive to prove relationship with the victim."34ςrνll

With respect to minority, however, the Information described "AAA" as a 7-year old daughter of appellant. While this also became the subject of stipulation during the pre-trial conference, same is insufficient evidence of "AAAs" age. Her minority must be "proved conclusively and indubitably as the crime itself".35ςrνll "There must be independent evidence proving the age of the victim, other than the testimonies of prosecution witnesses and the absence of denial by the accused."36ςrνll Documents such as her original or duly certified birth certificate, baptismal certificate or school records would suffice as competent evidence of her age.37ςrνll Here, there was nothing on record to prove the minority of "AAA" other than her testimony, appellants absence of denial, and their pre-trial stipulation.38ςrνll The prosecution also failed to establish that the documents referred to above were lost, destroyed, unavailable or otherwise totally absent.39ςrνll

It is settled that "when either one of the qualifying circumstances of relationship and minority is omitted or lacking, that which is pleaded in the information and proved by the evidence may be considered as an aggravating circumstance."40ςrνll As such, appellants relationship with "AAA" may be considered as an aggravating circumstance.

In view of these, the imposable penalty is reclusion temporal which ranges from twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the penalty next lower in degree is prision mayor which ranges from six (6) years and one (1) day to twelve (12) years. Hence, a penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, is imposed upon appellant.

Damages

In line with prevailing jurisprudence, the awards of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages are each modified to P30,000.00.41ςrνll "AAA" is also entitled to an interest on all the amounts of damages awarded at the legal rate of 6% per annum from the date of finality of this judgment until fully paid.42ςrνll

WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01442 is AFFIRMED with MODIFICATIONS. Accused-appellant Benjamin Soria y Gomez is found guilty beyond reasonable doubt of the crime of rape by sexual assault and is sentenced to suffer the penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum. He is also ordered to pay "AAA" the amounts of P30,000.00 as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages. "AAA" is entitled to an interest on all damages awarded at the legal rate of 6% per annum from the date of finality of this judgment until fully paid.ςrαlαωlιbrαr

SO ORDERED.

Endnotes:


1ςrνll CA rollo, pp. 83-96; penned by Associate Justice Vicente Q. Roxas and concurred in by Associate Justices Josefina Guevara Salonga and Apolinario D. Bruselas, Jr.

2ςrνll Records, pp. 76-81; penned by Judge Romeo F. Zamora.

3ςrνll "The identity of the victim or any information which could establish or compromise her identity, as well as those of her immediate family or household members, shall be withheld pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence And Special Protection Against Child Abuse, Exploitation And Discrimination, And for Other Purposes; Republic Act No. 9262, An Act Defining Violence Against Women And Their Children, Providing For Protective Measures for Victims, Prescribing Penalties Therefor, And for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC, known as the Rule on Violence against Women and Their Children, effective November 5, 2004." People v. Dumadag, G.R. No.176740, June 22, 2011, 652 SCRA 535, 538-539.

4ςrνll Records, p. 1.

5ςrνll Id.

6ςrνll Id. at 4.

7ςrνll Id. at 76-81.

8ςrνll Id. at 79.

9ςrνll Id. at 79-80.

10ςrνll Id. at 81.

11ςrνll CA rollo, pp. 83-96.

12ςrνll Id. at 95-96.

13ςrνll Id. at 21.

14ςrνll People v. Brioso, G.R. No. 182517, March 13, 2009, 581 SCRA 485, 493.

15ςrνll People v. Abulon, G.R. No. 174473, August 17, 2007, 530 SCRA 675, 702.

16ςrνll Id.

17ςrνll Jurado v. Suy Yan, 148 Phil. 677, 686 (1971).

18ςrνll Provincial Fiscal of Nueva Ecija v. Court of First Instance of Nueva Ecija, 79 Phil. 165, 168 (1947).

19ςrνll People v. Felan, G.R. No. 176631, February 2, 2011, 641 SCRA 449, 453-454.

20ςrνll Id. at 453-454, citing People v. Javier, 370 Phil. 128, 139 (1999).

21ςrνll People v. Sumingwa, G.R. No. 183619, October 13, 2009, 603 SCRA 638, 652.

22ςrνll People v. Brioso, supra note 14 at 495.

23ςrνll Records, unpaginated; TSN, February 10, 2003, pp. 3-4.

24ςrνll Id., id. at 4-5. Emphases supplied.

25ςrνll Id., id. at 8.

26ςrνll Id.; TSN, July 30, 2002, p. 5.

27ςrνll Reyes, Luis B., The Revised Penal Code, Book Two, Seventeenth Edition, p. 557.

28ςrνll People v. Valenzuela, G.R. No. 182057, February 6, 2009, 578 SCRA 157, 169-170.

29ςrνll People v. Tampos, 455 Phil. 844, 858 (2003).

30ςrνll People v. Palgan, G.R. No. 186234, December 21, 2009, 608 SCRA 725, 731.

31ςrνll Id. at 731-732.

32ςrνll Records, p. 14.

33ςrνll Id.; TSN, October 22, 2003, p. 3.

34ςrνll People v. Padilla, G.R. No. 167955, September 30, 2009, 601 SCRA 385, 397.

35ςrνll People v. Albalate, Jr., G.R. No. 174480, December 18, 2009, 608 SCRA 535, 546, citing People v. Manalili, G.R. No. 184598, June 23, 2009, 590 SCRA 695, 716.

36ςrνll Id., citing People v. Tabanggay, 390 Phil. 67, 91 (2000).

37ςrνll People v. Padilla, supra at 397-398.

38ςrνll Id. at 398.

39ςrνll Id.

40ςrνll People v. Hermocilla, G.R. No. 175830, July 10, 2007, 527 SCRA 296, 304-305, citing People v. Esperanza, 453 Phil. 54, 75-76 (2003).

41ςrνll People v. Alfonso, G.R. No. 182094, August 18, 2010, 628 SCRA 431, 452.

42ςrνll People v. Flores, G.R. No. 177355, December 15, 2010, 638 SCRA 631, 643.



DISSENTING OPINION

BRION, J.:

I DISSENT as I believe that the prosecution has not proven beyond reasonable doubt that appellant Benjamin Soria is guilty of rape through sexual assault under Article 266-A, paragraph 2 of the Revised Penal Code, as amended.

As my discussions below will show, the appellant should be acquitted of this crime on grounds of reasonable doubt, and should instead be convicted of the lesser crime and included crime of acts of lasciviousness -the crime that, under the available evidence, has been proven beyond reasonable doubt.

The Antecedents:chanroblesvirtuallawlibrary

The evidence for the prosecution showed that in the afternoon of February 26, 2000, AAA1ςrνll and her siblings ate the spaghetti that their father (the appellant) brought home for merienda. The records also show that after AAA finished eating, the appellant went on top of her and removed her clothes.2ςrνll AAA felt pain in her breasts and in her stomach; she also felt that "something" had been inserted into her private part. When AAA told the appellant that she felt pain in her private part, the latter apologized to her and then left the room. The incident was allegedly witnessed by BBB, who told AAA that it was the appellants "bird" that had been inserted into her vagina. AAA reported the incident to her aunt, CCC, who told her that the appellant was a bad person. CCC accompanied AAA to the hospital when AAAs vagina started to bleed. AAA also informed her mother what the appellant did to her. Thereafter, AAA was committed to the care and custody of the Department of Social Welfare and Development.

The prosecution charged the appellant with the crime of rape under Article 266-A of the Revised Penal Code, as amended, in relation to Republic Act No. 7610, before the Regional Trial Court (RTC), Branch 94, Quezon City. In its judgment3ςrνll of June 30, 2005, the RTC found the appellant guilty beyond reasonable doubt of the crime of rape by sexual intercourse,4ςrνll and it imposed the death penalty. It also ordered him to pay the victim the amounts of P75,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages.

On appeal, the Court of Appeals (CA) affirmed the RTC judgment with the following modifications: (1) the appellant was found guilty of simple rape only; (2) the death penalty was reduced to reclusion perpetua; and (3) the amount of civil indemnity was reduced to P50,000.00.5ςrνll

The ponencia affirmed the CA decision with the following modifications: (1) the appellant is found guilty of rape through sexual assault under Article 266-A, paragraph 2 of the Revised Penal Code, as amended; (2) he is sentenced to suffer the indeterminate penalty of twelve

(12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum; and (3) on his liability for damages (a) the amount of civil indemnity is reduced from P50,000.00 to P30,000.00; (b) the amount of moral damages is reduced from P50,000.00 to P30,000.00; (c) the amount of exemplary damages is increased from P25,000.00 to P30,000.00; and (d) the appellant is ordered to further pay the victim interest on all damages awarded at the legal rate of 6% per annum from the date of finality of the judgment until fully paid.

The Dissent:chanroblesvirtuallawlibrary

I clarify at the outset that I agree with the ponencias conclusion that the appellant cannot be convicted of rape by sexual intercourse under Article 266-A, paragraph 1 of the Revised Penal Code, as amended. The prosecution failed to establish beyond reasonable doubt the element of carnal knowledge.

My opposition stems from the ponencias finding that the appellant should be convicted of rape through sexual assault under Article 266-A, paragraph 2 of the Revised Penal Code, as amended.

Under Article 266-A, paragraph 2 of the Revised Penal Code, as amended, rape through sexual assault is committed "by any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person."6ςrνll

In the present case, there is no admissible evidence to show that the appellant inserted his penis into AAAs mouth or anal orifice, or any instrument or object into the victims genital or anal orifice. In her testimony, AAA merely "felt" that something had been inserted in her private part, as a result of which, she felt pain. To be sure, had there been any testimony that it was the appellants "bird" that had been inserted into her vagina, the appellants conviction for rape by sexual intercourse under Article 266-A, paragraph 1 should have followed. No such testimony, however, was ever given; AAA merely admitted that her brother BBB told her it was the appellants bird that had been inserted. This testimony, of course, is clearly hearsay; BBB was never presented in court to testify.

On the basis of this evidence, the ponencia holds that while it had not been clearly established that it was the appellants penis that had been inserted into AAAs vagina, it cannot be denied that the appellant "inserted an object" into the victims female organ. The ponencia based its conclusion on the following circumstances: (a) AAA "experienced pain when the appellant inserted something in her vagina";7ςrνll and (b) Dr. Francisco Supe, Jr. testified that the victims hyperemic hymen could have been caused by an object being "rubbed" on her private part.

I find the ponencias reasoning and conclusion seriously flawed.

First, it is a dangerous proposition to equate AAAs testimony of pain in her private part with rape; it is the insertion of an instrument or object into the victims genital or anal orifice, not pain, that constitutes rape through sexual assault. Thus, the victims testimony should, at the very least, have mentioned that the appellant inserted an object or instrument in her vagina or anal orifice or she should have testified on circumstances that would lead us to reasonably conclude that the appellant inserted an instrument or object into her genital or anal orifice. As earlier stated, AAA merely felt pain; it was BBB who told her that it was the appellants "bird" that had been inserted into her vagina. At most, AAA merely "assumed" that something had been inserted into her vagina. This is what the totality of her testimony implied.

Significantly, the records bear out that the appellant removed only AAAs clothes, and not her underwear, during the incident. To directly quote from the records:

FISCAL BEN DELA CRUZ:

Q: So you said you wanted to explain something about your father, what was that?

AAA:

A: What he did, sir.

Q: What is that?

A: I was raped, sir.

Q: What did he do when you said he raped you?

A: He laid on top of me, sir.

Q: Did you have your dress on when he did that?

A: Yes, sir.

Q: What about your underwear? Did you have your underwear on?

A: Yes, sir.

Q: He did not remove any of your clothes?

A: Only my clothes, sir.8ςrνll (emphasis ours)

This circumstance makes the insertion of an object or instrument into the victims genital highly improbable. Considering that AAA also testified that she felt pain in her breasts and stomach when the appellant went on top of her, it is not far-fetched that the pain she felt in her private part could have been caused by the appellants weight being pressed against her whole body, and it was not due to the insertion of an object into her vagina.

Second, Dr. Supes Medico-Legal Report and court testimony did not support the ponencias conclusion that the appellant inserted an object or even his penis into AAAs vagina. Dr. Supe testified that he conducted a medical examination on AAA on March 3, 2000, and made the following findings:chanroblesvirtuallawlibrary

GENERAL AND EXTRA-GENITAL: Fairly developed, fairly nourished and coherent female child. Breasts are undeveloped. Abdomen is flat and soft.

GENITAL: There is absent growth of pubic hair. Labia majora are full, convex, and coaptated with light brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy type, hyperemic and intact hymen. Posterior fourchette is sharp.

CONCLUSION: The subject is in virgin state physically. There are no external signs of application of any form of physical trauma.9ςrνll (emphasis ours)

According to Dr. Supe, a hyperemic hymen is the result of the application of friction, such as scratching, on the hymen. Dr. Supe further stated that the insertion of an object could result to a hyperemic hymen if this object was "rubbed." For clarity and precision, I quote the relevant portions of Dr. Supes testimony:chanroblesvirtuallawlibrary

ASSISTANT CITY PROSECUTOR BEN DELA CRUZ:chanroblesvirtuallawlibrary

Q: Doctor, with respect to Exhibit A, the Medico-Legal Report pertaining to the entry on the genital, which reads: On separating the hymen, disclosed an elastic, fleshy-type, hyperemic and intact hymen. Will you please tell us, Doctor, what is this hyperemic hymen?

DR. FRANCISCO SUPE, JR.:chanroblesvirtuallawlibrary

A: Hyperemic hymen, sir, means that at the time of the examination, I found out that it was reddish in color.

Q: Considering that the age of the child or the patient, the victim whom you examined at that time which was about 6 years old, will you be able to tell us, Doctor, what could have caused this type of injury, because this is an injury to the hymen?

A: Hyperemic, sir, is observed whenever there is friction applied to an area, such as in the form of scratching.

Q: What about insertion of an object, would this result into hyperemic hymen?

A: If the object is being rubbed, sir, there is a possibility.

Q: A finger would produce that kind of injury?

A: Possible, sir.

x x x

ATTY. JOSEPH SIA:chanroblesvirtuallawlibrary

Q: The friction that caused the hyperemic hymen would be caused by other activities of the child, like for example playing or bicycle riding?

DR. SUPE, JR:chanroblesvirtuallawlibrary

A: If there is a friction, it is possible.10ςrνll (emphases ours)

Clearly, there was no categorical declaration by Dr. Supe that an instrument or object had been inserted into the victims private part. Notably, Dr. Supe also declared that the victims other activities, like playing of riding a bicycle, could lead to a hyperemic hymen if friction had been applied on the area. The prosecution thus failed to establish the medical basis for a finding of rape through sexual assault.

Finally, I point out that Dr. Supe found AAA to be in a "virgin state physically";11ςrνll he also found her hymen to be intact. I am not unmindful of the oft-repeated doctrine that an intact hymen does not necessarily preclude a finding that the victim had been raped. However, when the prosecutions evidence fails to establish with moral certainty all the elements necessary to consummate the crime of rape, a finding by the medico-legal officer that the victim is in a "virgin state," and that her hymen is intact, suffices to cast doubt on the appellants culpability.

In rape cases, the prosecution bears the primary duty to present its evidence with clarity and persuasion, to the end that conviction becomes the only logical and inevitable conclusion. "The freedom of the accused is forfeited only if the requisite quantum of proof necessary for conviction be in existence. This, of course, requires the most careful scrutiny of the evidence for the State, both oral and documentary, independent of whatever defense is offered by the accused. Every circumstance favoring the accused's innocence must be duly taken into account. The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged."12ςrνll

Lewd or Lascivious Conduct Proven

Notwithstanding the prosecution's failure to prove the appellant's guilt for rape, I take the view that sufficient evidence exists to convict him of acts of lasciviousness under Article 336 of the Revised Penal Code. A charge of acts of lasciviousness is necessarily included in a complaint for rape. "The elements of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done under any of the following circumstances: (a) by using force or intimidation, (b) when the offended woman is deprived of reason or otherwise unconscious; or (c) when the offended party is under twelve (12) years of age; and (3) that the offended party is another person of either sex."13ςrνll

"Lewd is defined as obscene, lustful, indecent, or lecherous. It signifies that form of immorality related to moral impurity, or that which is carried on a wanton manner."14ςrνll In Sombilon, Jr. v. People,15ςrνll the Court explained this concept as follows:chanroblesvirtuallawlibrary

The term "lewd" is commonly defined as something indecent or obscene; it is characterized by or intended to excite crude sexual desire. That an accused is entertaining a lewd or unchaste design is necessarily a mental process the existence of which can be inferred by overt acts carrying out such intention, i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances.

The evidence in the present case established that the appellant went on top of AAA, and removed her clothes. The appellant only stopped when the victim told him that she felt pain in her private part. To my mind, the appellants acts of mounting her very own daughter, and then removing her clothes, showed lewdness that constitutes acts of lasciviousness. These acts are clearly indecent and inappropriate; it undeniably demonstrates the appellants gross moral depravity.

In light of these considerations, I maintain that - on grounds of reasonable doubt - the appellant should be acquitted of the crime of rape through sexual assault unde1 Article 266-A, paragraph 2 of the Revised Penal Code, as amended. He should instead be convicted of the lesser and included crime of acts of lasciviousness as the evidence on record shows the presence of all the elements of this crime.


Endnotes:


1ςrνll See our ruling in People v. Cabalquinto, 533 Phil. 703 (2006).

2ςrνll There is nothing in the transcript of stenographic notes that supports the ponencia's narration that AAA went in the bedroom to rest after eating.

3ςrνll Penned by Judge Romeo F. Zamora; CA rollo, pp. 39-44.

4ςrνll Qualified by relationship and minority.

5ςrνll Penned by Associate Justice Vicente Q. Roxas, and concurred in by Associate Justices Josefina Guevara Salonga and Apolinario D. Bruselas, Jr.; rollo, pp. 2-15.

6ςrνll Underscoring ours.

7ςrνll Ponencia, p. 11.

8ςrνll TSN, February 10, 2003, pp. 3-4.

9ςrνll Ponencia, p. 3.

10ςrνll TSN, July 30, 2002, pp. 5-6.

11ςrνll Records, p. 4.

12ςrνll See People v. Fabito, G.R. No. 179933, April 16, 2009, 585 SCRA 591, 614.

13ςrνll People v. Poras, G.R. No. 177747, February 16, 2010, 612 SCRA 624, 645, citing People v. Mingming, G.R. No. 174195, December 10, 2008, 573 SCRA 509, 534-535.

14ςrνll Ibid., citing People v. Lizada, 444 Phil. 67 (2003).

15ςrνll G.R. No. 175528, September 30, 2009, 601 SCRA 405, 414.

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