That on or about the 14th [sic]1 day of April 2006, at Betag, Municipality of La Trinidad, Province of Benguet, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then and there willfully, unlawfully and feloniously try and attempt to rape [AAA2] while the latter was sleeping and therefore unconscious, by removing the latter's pajama and panty, and thereafter holding her vagina and fondling her breasts, and endeavor to have sexual intercourse with her against her will and consent, thereby commencing in the execution of the crime of rape but did not perform all the acts of execution which should have produced the felony as a consequence by reason that the offended party was awakened, defended herself and escaped from him, which cause is not his spontaneous desistance, to the damage and prejudice of the said [AAA].
That the accused and [AAA] are relatives within the 3rd civil degree.3 (Underscoring supplied)
WHEREFORE, the accused must be, as he is hereby found guilty beyond reasonable doubt of the crime of attempted rape.
Applying the Indeterminate Sentence Law, there being no modifying circumstance established, he is hereby imposed a penalty of imprisonment ranging from three (3) years and four (4) months of prision correccional medium, as minimum, to eight (8) years and six (6) months of prision mayor medium, as maximum.
The accused is hereby ordered to pay the private complainant moral damages in the amount of Twenty Five Thousand Pesos (P25,000.00) and to pay the costs.
SO ORDERED.13
Petitioner's acts of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the complainant's sexual organ. Rather, these acts constitute acts of lasciviousness. x x x.15 (Emphasis and underscoring supplied)
Any person who shall commit any act of lasciviousness upon the other person of either sex, under any of the circumstances mentioned in the preceding article [referring to Article 335 on rape], shall be punished by prision correccional.
Petitioner's acts, as narrated by AAA, far from being mere obscene or lewd, indisputably show that he intended to have, and was bent on consummating, carnal knowledge of AAA.
Atty. Santos [defense counsel, to witness AAA]: x x x x Q He did not try to insert his penis into your vagina, Madam Witness? A He was trying to force it on me butI covered my vagina. Q Is it not a fact that when he put down your pajama and underwear down to your knee, he was still wearing his brief? A Sir, his brief was already lowered down to the middle of his upper leg (witness was illustrating by touching the middle of her upper legs). Q When he tried to lie on top of you, you wrestled and you tried to run out from your room. Is that correct? A Yes, sir. x x x x Q And that was the time that when he opened the CD player, you took your cell phone and ran out from your room? A Yes, sir. Q So in other words, Mr. Jaren Tibong had no chance of inserting his penis in your vagina because you ran out of your room already. Correct? A Yes, sir.18 (Emphasis and underscoring supplied)
Endnotes:
* Additional member per Special Order No. 879 dated August 13, 2010.
1 Should be 17th.
2 The real name of the private complainant is withheld per Republic Act (R.A.) No. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act); R.A. 9262 (Anti-Violence Against Women and Their Children Act of 2004); and A.M. No. 04-10-11-SC effective November 15, 2004 (Rule on Violence Against Women and Their Children). Vide: People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 421-423.
3 Information, records, pp. 1-2.
4 TSN, January 17, 2007, pp. 2-3, 5.
5 The trial court noted in its decision that the Information wrongly alleged the date of the incident complained of as April 14, 2006, when the sworn complaint of private complainant AAA and her testimony in court indicate that the incident happened about 12:00 midnight of April 17, 2006. It ruled that such defect is not fatal as "the date of commission is not an essential element of the crime of rape, what is material being the occurrence of the rape," citing People v. Lozano (G.R. No. 127122, July 20, 1999, 310 SCRA 707, 716-717). Besides, the defense never objected to such error.
6 TSN, March 20, 2007, p. 6.
7 Id. at 6-7, 12.
8 Id. at 7.
9 Id. at 7-8.
10 His real name is withheld per note 2.
11 Exhibits "A" and "A-1," records, p. 5.
12 TSN, July 25, 2007, pp. 4-8, 14-15, 19.
13 Decision dated April 4, 2008, records, p. 173.
14 G.R. No. 143838, May 9, 2002, 382 SCRA 182.
15 Id. at 190.
16 Petition, rollo, p. 19.
17 Aquino, The Revised Penal Code, Vol. III, 1997 ed., p. 430.
18 TSN, May 16, 2007, pp. 3-4.
19 Penned by Associate Justice Priscilla J. Baltazar-Padilla, with Associate Justices Fernanda Lampas Peralta and Celia C. Librea-Leagogo concurring; rollo, pp. 30-50.