THIRD DIVISION
G.R. No. 209032, August 03, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. VIVENCIO AUSA, Accused-Appellant.
D E C I S I O N
PEREZ, J.:
For review is the appeal filed by appellant Vivencio Ausa from the 27 September 2012 Decision1 of the Court of Appeals in CA-G.R. CEB-CR-H.C. No. 00984 which affirmed with modification the Judgment2 dated 3 September 2008, of the Regional Trial Court (RTC), Branch 2, Borongan City, Eastern Samar, in Criminal Case No. 11297, finding appellant guilty beyond reasonable doubt of the crime of Simple Rape.
In accordance with the ruling of this Court in People v. Cabalquinto,3 the real name and identity of the rape victim, as well as the members of her immediate family, are not disclosed. The rape victim shall herein be referred to as AAA, and her mother, BBB. AAA's personal circumstances as well as other information tending to establish her identity, and that of her immediate family or household members, are not disclosed in this decision.
Appellant was charged before the RTC with the crime of rape, to wit:ChanRoblesVirtualawlibrary
That at about 7:30 in the evening of June 22, 2001 at Bgy. x x x, Llorente, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with force and violence and with lewd design, willfully, unlawfully and feloniously have carnal knowledge with [AAA], a 10 year old girl, against her will and consent, to the damage and prejudice of the victim.4chanroblesvirtuallawlibraryOn arraignment, appellant pleaded not guilty to the crime charged. AAA testified on the details of the crime in the trial that followed. AAA's mother, BBB, and the examining physician, Dr. Mario D. Baconawa (Dr. Baconawa), likewise testified.
-Fresh lacerations of the hymen at 12:00 o'clock, 3:00 o'clock, 6:00 o'clock, 7:00 o'clock & 9:00 o'clock positionsDr. Baconawa explained during trial that AAA's lacerations could have been caused by the insertion of a male organ and that such number of lacerations are attributable to the weakness of the hymen.7chanrobleslaw
-Abrasion about .5 - 1 cm in diameter at the posterior commissure
-Circular abrasions around the labia minora
-Vaginal canal admits one finger without resistance and with blood oozing from the vaginal canal
-Vaginal smear for the presence of spermatozoa (no result available) -No other pertinent physical examination finding6chanroblesvirtuallawlibrary
WHEREFORE, in view of the foregoing, accused Vivencio Ausa @ "Beben" is hereby found GUILTY of the crime of simple RAPE and is sentenced to suffer the penalty of reclusion perpetua and is ordered to pay the private offended party the amounts of Fifty Thousand (Php50,000.00) pesos as civil indemnity and Fifty Thousand pesos (Php50,000.00) as moral damages.The Court of Appeals affirmed the RTC Decision and rendered the assailed decision affirming with modification the trial court's judgment, to wit:ChanRoblesVirtualawlibrary
Accused having been under detention during the course of the trial is credited in the service of his sentence, with the full time that he have undergone preventive imprisonment, if he had voluntarily agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise he shall be credited with four-fifths thereof.
With costs."11chanroblesvirtuallawlibrary
WHEREFORE, the Decision September 3, 2008 of the Regional Trial Court ("RTC"), 8th Judicial Region, Branch 2, Borongan City, Eastern Samar, in Criminal Case No. 11297, finding appellant Vivencio Ausa guilty beyond reasonable doubt of the crime of simple rape is hereby AFFIRMED with modifications. Aside from moral damages and civil indemnity, appellant is ORDERED to pay the victim exemplary damages of Php30,000.00 and 6% interest per annum on all the civil damages from the date of the finality of this decision.12Thus, the instant appeal.13 In a Resolution14 dated 11 November 2013, appellant and the Office of the Solicitor General (OSG) were asked to file their respective supplemental briefs if they so desired. Both parties dispensed with the filing of supplemental briefs.15chanrobleslaw
Article 266-A. Rape; When and How committed. - Rape is committed -Statutory rape under paragraph 1 (d) of Article 266-A of the RPC, as amended by R.A. No. 8353, is committed by sexual intercourse with a woman below twelve (12) years of age regardless of her consent, or the lack of it to the sexual act. Proof of force, intimidation, or consent is unnecessary as the absence of free consent is conclusively presumed when the victim is below the age of twelve (12). However, the prosecution carries the burden of proving: (1) the age of the complainant; (2) the identity of the accused; and (3) the sexual intercourse between the accused and the complainant.17 The age of the victim is an essential element of statutory rape; thus, it must be proved by clear and convincing evidence.18chanrobleslaw
1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:x x x x
- Through force, threat or intimidation;
- When the offended party is deprived of reason or otherwise unconscious;
- By means of fraudulent machination or grave abuse of authority; and cralawlawlibrary
- When the woman is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
Article 266-B. Penalties- Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
x x x x
1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.Herein, the age of AAA at the time of the commission of the crime was not sufficiently established. Other than bare testimonial evidence insufficient to meet the legal requirement, no other evidence was presented to prove AAA's age. Thus, appellant cannot be convicted of statutory rape but of simple rape under Article 266-A, paragraph 1 (a) of the RPC, as amended by R.A. No. 8353, the gravamen of which is carnal knowledge of a woman using force, violence, intimidation or threat alleged in the information.
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show
the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:ChanRoblesVirtualawlibrarya. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.
and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.
6. The trial court should always make a categorical finding as to the age of the victim.
Q: | AAA, do you know the accused in this case, Vivencio Ausa? |
A: | Yes, sir. |
Q: | Why do you know him? |
A: | Because he is my neighbor. |
Q: | If he is around, will you please point to Vivencio Ausa? |
INTERPRETER TAVERA: chanRoblesvirtualLawlibrary | |
Witness pointing to a person seated at the front bench alone, and when asked his name, he answered, Vivencio Ausa. | |
x x x x | |
Q: | What did Vivencio Ausa do to you if any? |
A : | He dragged me to a place behind the school building. |
x x x x | |
Q: | And while at the place behind the school building, what happened? |
A: | He pulled out my panty. |
Q: | While he was pulling out your panty, what were you doing then? A: I was struggling to free myself, but he was stronger than me. |
x x x x | |
Q: | After he succeeded in removing your panty what did he do with your panty? (sic) |
A: | He undressed himself, his pant, shirt and brief. |
Q: | After he undress himself with his pant and brief, what happened? |
A: | He raped me, sir. |
Q: | You said, you were raped, will you describe how did it happened (sic) that you were raped? |
A: | He inserted his private part to my private part also. |
x x x x | |
Q: | And what did you feel when his penis was inserted into your vagina? |
A: | I felt the pain, sir.20 |
Endnotes:
* Additional Member per Raffle dated 1 August 2016.
1Rollo, pp. 3-15; Penned by Associate Justice Zenaida T. Galapate Laguilles with Associate Justices
Edgardo L. De los Santos and Pamela Ann Abella Maxino concurring.
2 Records, pp. 256-275; Presided by Judge Leandro C. Catalo.
3 533 Phil. 703 (2006).
4 Records, p. 1.
5 TSN, 17 June 2002, pp. 2-9; TSN, 28 May 2002, pp. 4-9.
6 Records, p. 6; The Medical Certificate was issued on 3 July 2001.
7 TSN, 27 May 2002, pp. 8-10.
8 TSN, 7 May 2004, pp. 4-9.
9 TSN, 23 February 2005, pp. 2-4.
10 TSN, 14 May 2008, pp. 2-15; TSN, 10 July 2008, pp. 2-10.
11 Records, pp. 274-275.
12Rollo, p. 14.
13 Id. at 16-17.
14 Id. at 22-23.
15 Id. at 24-25 and 28-29.
16 Effective 22 October 1997.
17People v. Mingming, 594 Phil. 170, 185-186 (2008).
18 People v. Ramos, 577 Phil. 297, 304 (2008) citing People v. Vargas, 327 Phil. 387, 397 (1996).
19 439 Phil. 440, 470-471 (2002) as cited in People v. Ramos, supra note 18 at 304-305.
20 TSN, 17 June 2002, pp. 3-6.
21People v. Salazar, 648 Phil. 520, 531 (2010) citing People v. Monies, 461 Phil. 563, 578 (2003).
22] People v. Aguilar, 643 Phil. 643, 654 (2010) citing People v. Corpuz, 517 Phil. 622, 636-63] (2006).
23People v. Pascua, 462 Phil. 245, 252 (2003).
24People v. Perez, 595 Phil. 1232, 1258 (2008).
25cralawred See People v. Tagana, 468 Phil. 784, 807 (2004).
26 Id. at 808.
27 TSN, 7 May 2004, pp. 11-12; TSN, 23 February 2005, pp. 4-5; TSN, 14 May 2008, p. 7.
28People v. Jugueta, G.R. No. 202124, 5 April 2016.
29People v. Vitero, G.R. No. 175327, 3 April 2013, 695 SCRA 54, 69.