That sometimes (sic) in the year 2001, at Barangay XXX, municipality of YYY, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, while armed with a knife, taking advantage of the youthfulness of the victim and his moral ascendancy over her, with lewd designs, did then and there, willfully, unlawfully and feloniously inserted his two (2) fingers to the sex organ of AAA, a minor, 9 years of age, against her will and without her consent, to her damage and prejudice.
The generic aggravating circumstance of relationship is present considering that the accused is the grandfather of the victim being the brother of the mother of the victim's father.
That on or about July 12, 2002, in the afternoon, at Barangay XXX, municipality of YYY, province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, taking advantage of the youthfulness of the victim and his moral ascendancy over her, did then and there, willfully, unlawfully and feloniously inserted his fingers to the sex organ of victim and then have carnal knowledge of the victim, AAA, a minor, 10 years of age, against her will and without her consent, to her damage and prejudice.
The generic aggravating circumstance of relationship is present considering that the accused is the grandfather of the victim being the brother of the mother of the victim's father.
That on or about June 15, 2000, at more or less 10:00 o'clock (sic) in the morning at barangay XXX, municipality of YYY, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation and taking advantage of the youthfulness of the victim and also his moral ascendancy over the latter, did then and there, willfully, unlawfully and feloniously had carnal knowledge of BBB, a minor, 12 years of age, against her will and without her consent, which acts likewise constitute child abuse and exploitation, as it demeans, debases and degrades the integrity of the child as a person, to her damage and prejudice.
The generic aggravating circumstance of relationship is present, the accused being the brother of the other of the victim's father.
That on or about midnight of April 20, 2001, at barangay XXX, municipality of YYY, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence and intimidation, taking advantage of the youthfulness and his moral ascendancy over the victim did then and there, willfully, unlawfully and feloniously with lewd designs inserted his fingers to the sex organ of the victim BBB, a minor, 13 years of age, against her will and without her consent, which acts likewise constitute child abuse and exploitation as it debases, demeans and degrades the integrity of the victim as a person, to her damage and prejudice.
The generic aggravating circumstance of relationship is present, the accused is the grandfather of the victim being the brother of the mother of the victim's father.
WHEREFORE, premises considered, accused JONIE DOMINGUEZ having been found GUILTY of two (2) counts of Statutory Rape under par. (2) of Article 266-A in relation to Article III, Sec. 5(b) of RA 7610 and six (6) other counts of Simple Rape under pars. (1) and (2) pf Article 266-A in relation to Article III, Sec. 5(b) of RA 7610, is hereby sentenced as follows:
1) In Criminal Case No. 92-582 (Statutory Rape), he is sentenced to suffer the indeterminate penalty of 4 years 2 months and 1 day of Prision Correccional Maximum, as minimum, to 10 years of Prision Mayor medium, as maximum; to indemnify the offended party AAA in the amounts of Php50,000.00 as civil indemnity and another Php50,000.00 as moral damages;
2) In Criminal Case No. 02-583 (Statutory Rape), he is sentenced to suffer the indeterminate penalty of 4 years 2 months and 1 day of Prision Correccional Maximum, as minimum, to 12 years of Prision Mayor maximum as maximum, present the generic aggravating circumstance of USE OF DEADLY WEAPON (Article 266-B in relation to par. (2) of Article 266-A); to indemnify AAA the amounts of Php50,000.00 as civil indemnity, another Php50,000.00 as moral damages and Php20,000.00 as exemplary damages;
3) In Criminal Case No. 02-584 (Rape), he is sentenced to suffer the indivisible penalty of RECLUSION PERPETUA (Article 266-B in relation to par. (1) of Article 266-A, RPC as amended); to indemnify BBB the amounts of Php50,000.00 as civil indemnity and another Php50,000.00 as moral damages;
4) In Criminal Cases Nos. 02-585; 586; 587; 588 and 590 (Rape), he is sentenced to suffer the indeterminate penalty of 4 years 2 months and 1 day of Prision Correccional maximum, as minimum, to 10 years or Prision Mayor medium, as maximum, for EACH COUNT of RAPE; to indemnify BBB the amounts of Php50,000.00 civil indemnity and another Php50,000.00 as moral damages; and to pay the costs;
5) In Criminal Case No. 02-589 (Rape), accused is ACQUITTED for insufficiency of evidence and for failure of the prosecution to establish his GUILT beyond reasonable doubt.
The period of preventive imprisonment already served by the accused shall be credited in the service of his sentence pursuant to Article 29 of the Revised Penal Code as amended.
In the service of the sentences above-mentioned, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible pursuant to the provision of Article 70 of the Revised Penal Code as amended.
SO ORDERED. 17
WHEREFORE, premises considered, the appeal interposed by Jonie Dominguez is DENIED, and accordingly his convictions as pronounced under the herein assailed November 5, 2007 Decision of the trial court is AFFIRMED together with the appropriate prison penalty, but with modification only as to the awards for civil indemnity and moral damages, for which appellant is hereby ordered to pay:1) Php75,000.00 for civil indemnity, and Php75,000.00 by way of moral damages in Crim. Case No. 02-584.SO ORDERED. 18
2) Php30,000.00 for civil indemnity and Php30,000.00 by way of moral damages for each of appellant's convictions in Crim. Case Nos. 02-582, 02-583, 02-585, 02-586, 02-587, 02-588, and 02-590.
3) Php20,000.00 as exemplary damages in Crim. Case No. 02-583.
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIMES CHARGED DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT. 21
Accused-appellant draws attention to the fact that based on the medico-legal findings, there is no showing that his daughter's hymen was penetrated, nor there was any evidence of injuries inflicted. However, jurisprudence is well-settled to the effect that for rape to be consummated, rupture of the hymen is not necessary, nor it is necessary that the vagina sustained a laceration especially if the complainant is a young girl. ... The fact that there was no deep penetration of the victim's vagina and that her hymen was intact does not negate rape, since this crime is committed even with the slightest penetration of a woman's sex organ. Presence of a laceration in the vagina is not (sic) essential prerequisite to prove that a victim has been raped. Research in medicine even points out that negative findings are of no significance, since the hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have been reported in women with unruptured hymen.(emphasis supplied)24
Q: AAA, during the last time that you were here in court, you declared that you were sexually molested by Jonie Dominguez at the house of your uncle Rogelio, is that correct? A: Yes, Ma'am. Q: And the other sexual molestation happened at the back of your school in Butag Elementary School, is that also correct? A: No, Ma'am. Q: What do you mean no, Ma'am? A: At the house of Uncle Rogelio and at our house. Q:But during the last time when you were asked by Atty. Gojar, you said that you were also molested at the back of the elementary school, Barangay XXX, so which is correct now?
A: The truth is that I was sexually molested at the house of my Uncle Rogelio and at our house. Q: And why did you say that you were molested at the back of the elementary school in Barangay XXX, if not true? A: I was confused thinking that the question of Atty. Gojar is the location of our house and our house is situated at the back of the elementary school."
Ample margin of error and understanding is accorded to young witnesses who, much more than adults, would naturally be gripped with tension due to the novelty of the experience of testifying before a court.30
It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States vs. Buncad, this Court stated:
Professor Wigmore, after referring to the common-law precedents upon this point, says: "But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated." (Wigmore on Evidence, vol. I, p. 638)
While on the same subject, Underhill declares:
257. Children on the witness stand. - Under the common law, competency of a child under the age of fourteen years to testify must be shown to the satisfaction of the court. He is presumptively incompetent, but if he is shown to be competent it is immaterial how young he may be when he testifies. He is competent if he possesses mental capacity and memory sufficient to enable him to give a reasonable and intelligible account of the transaction he has seen, if he understands and has a just appreciation of the difference between right and wrong, and comprehends the character, meaning and obligation of an oath. If the witness fulfills these requirements, it is immaterial as bearing upon his competency that he is unable to define the oath or to define testimony. In the wise discretion of the court, a child four, five, six and for such ages as seven, eight, nine, ten, eleven, twelve, thirteen or fifteen years of age may be shown competent to testify. It may not be said that there is any particular age at which as a matter of law all children are competent or incompetent. x x x
The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing requirements, it is settled that the trial court is called upon to make such determination. As held in United States vs. Buncad, quoting from Wheeler vs. United States, and reiterated in People vs. Raptus and People vs. Libungan:
The decision of (sic) this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous. (citations omitted). 31
To establish alibi, the accused must prove (a) that he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.Physical impossibility "refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places." 35
Art. 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 otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
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 person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.
In much the same way as Article 2230 prescribes an instance when exemplary damages may be awarded, Article 2229, the main provision, lays down the very basis of the award. Thus, in People v. Matrimonio, the Court imposed exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters. Also, in People v. Cristobal, the Court awarded exemplary damages on account of the moral corruption, perversity and wickedness of the accused in sexually assaulting a pregnant married woman. Recently, in People of the Philippines v. Cristino Cañada, People of the Philippines v. Pepito Neverio and The People of the Philippines v. Lorenzo Layco, Sr., the Court awarded exemplary damages to set a public example, to serve as deterrent to elders who abuse and corrupt the youth, and to protect the latter from sexual abuse.
It must be noted that, in the said cases, the Court used as basis Article 2229, rather than Article 2230, to justify the award of exemplary damages. Indeed, to borrow Justice Carpio Morales' words in her separate opinion in People of the Philippines v. Dante Gragasin y Par, "[t]he application of Article 2230 of the Civil Code strictissimi juris in such cases, as in the present one, defeats the underlying public policy behind the award of exemplary damages -- to set a public example or correction for the public good." 45
Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
... ... ...
Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.
Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal. ... ... ...
a) In Criminal Case No. 02-583, the indeterminate penalty of six (6) years of prision correccional as minimum, to fifteen (15) years and four (4) months of reclusion temporal as maximum.
b) In Criminal Case Nos. 02-582, 02-585, 02-586, 02-587, 02-588 and 02-590, the indeterminate penalty of four (4) years of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum for each count of rape; and
c) In Criminal Case No. 02-584, the indivisible penalty of reclusion perpetua.
a) | To AAA: | ||
1) | P30,000 as civil indemnity for each count of rape in Criminal Case Nos. 02-582 and 02-583; | ||
2) | P30,000 as moral damages for each count of rape in Criminal Case Nos. 02-582 and 02-583; and | ||
3) | P30,000.00 exemplary damages for each count of rape in Criminal Case Nos. 02-582 and 02-583. | ||
b) | To BBB: | ||
1) | P50,000 as civil indemnity in Criminal Case No. 02-584; | ||
2) | P50,000 as moral damages in Criminal Case No. 02-584; | ||
3) | P30,000 as civil indemnity for each count of rape in Criminal Case Nos. 02-585, 02-586, 02-587, 02-588 and 02-590; | ||
4) | P30,000 as moral damages for each count of rape in Criminal Case Nos. 02-585, 02-586, 02-587, 02-588 and 02-590; | ||
5) | P30,000 as exemplary damages for each count of rape in Criminal Case Nos. 02-584, 02-585, 02-586, 02-587, 02-588 and 02-590. |
Endnotes:
1 Penned by Associate Justice Rosmari D. Carandang and concurred in by Associate Justices Arturo G. Tayag and Michael P. Elbinias.
2 The accused signed as "Diony Dominguez" in the RTC Decision.
3 The proper nomenclature is "granduncle" instead of "grandfather".
4 Records (Criminal Case 02-583) at 1.
5 Id.
6 Records (Criminal Case 02-582) at 1.
7 Records (Criminal Case No. 02-584) at 1.
8 Supra note 6 at 3-8.
9 Supra note 7.
10 Records (Criminal Case No. 02-585) at 1.
11 TSN, 13 December 2004, at 5-6.
12 TSN, 13 May 2003, at 9-13.
13 Id. at 5-8.
14 TSN, 15 July 2003, at 6-10; TSN, 3 August 2004, at 3-5.
15 TSN, 3 August 2004, at 2-6; TSN, 16 November 2004, at 5-8.
16 TSN, 11 July 2006, pp 3-5; TSN, 4 September 2006, at 4-6.
17 Supra note 6 at 274-275.
18 CA rollo, at 358-359.
19 Rollo at 35-36.
20 Id. at 31-32.
21 Supra note 18 at 232.
22 Id. at 242-252.
23 People v. Gabayron, G.R. No. 102018, 21 August 1997, 278 SCRA 78.
24 Id. at 92-93, citing People v. Lazaro, 249 SCRA 234 (1995) and People v. Sapurco, 245 SCRA 519 (1995).
25 Supra note 18, at 318-319.
26 TSN, 7 December 2004, at 3.
27 Supra note 18, at 244-245.
28 TSN, 16 November 2004, at 6.
29 Supra note 6, at 17-18.
30 People v. Lawa, G.R. Nos. 126147/143925-26, 28 January 2003, citing People v. dela Cruz, 276 SCRA 352, 357 (1997).
31 People v. Mendoza, G.R. No. 113791, 22 February 1996, 254 SCRA 18, 31-33.
32 People v. Barde, G.R. No. 183094, 22 September 2010, citing People v. Lalongisip, G.R. No. 188331, 16 June 2010.
33 Id. citing People v. Beltran, Jr., 503 SCRA 715, 730 (2006).
34 Supra note 18, at 308-315.
35 People v. Mosquerra, G.R. No. 129209, 9 August 2001, 362 SCRA 441, 450, citing People v. Saban, 319 SCRA 36, 46 (1999); People v. Reduca, 301 SCRA 516, 534 (1999), and People v. De Labajan, 317 SCRA 566, 575 (1999).
36 Revised Penal Code, Art. 266-B (1).
37 People v. Soriano, G.R. No. 142779-95, 29 August 2002, 388 SCRA 140; People v. Palma, G.R. No. 148869-74. 11 December 2003, 418 SCRA 365; People v. Olaybar, G.R. No. 15060-31, 1 October 2003, 412 SCRA 490; People v. Suyu, G.R. No. 170191, 16 August 2006, 499 SCRA 177; People v. Hermosilla, G.R. No. 175830, July 10, 2007, 527 SCRA 296; People v. Fetalino, G.R. No. 174472, 19 June 2007, 525 SCRA 170; People v. Senieres, G.R. No. 172226, 23 March 2007, 519 SCRA 13; Flordeliz v. People, G.R. No. 186441, 3 March 2010, 614 SCRA 225; People v. Alfonso, G.R. No. 182094, 18 August 2010.
38 People v. Velasquez, G.R. Nos. 132635 & 143872-75, 21 February 2001, 352 SCRA 445.
39 G.R. Nos. 132875-76, 16 November 2001, 369 SCRA 179.
40 Supra note 37.
41 G.R. No. 188560, 15 December 2010.
42 Id., citing People v. Dalisay, G.R. No. 188106, 25 November 2009, 605 SCRA 807.
43 G.R. No. 133823, 7 February 2001; see also People v Serrano, G.R. No. 137480, 28 February 2001.
44 Supra note 41.
45 Id.