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871 Phil. 457
THIRD DIVISION
[ G.R. No. 233463, February 19, 2020 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. XXX, ACCUSED-APPELLANT.
D E C I S I O N
ZALAMEDA, J.:
This appeal[1] seeks the reversal of the 14 February 2017 Decision[2] rendered by the Court of Appeals (CA) in CA-G.R. CR-HC No. 07296, which affirmed with modifications the 28 November 2014 Joint Judgment[3] of Branch 33. Regional Trial Court of xxxxxxxxxxx, Camarines Sur (RTC), in Criminal Case Nos. P-4356 and P-4357, finding XXX (accused-appellant) guilty beyond reasonable doubt of two (2) counts of Rape, as defined and penalized under Article (Art.) 266-A in relation to Art. 266-B of the Revised Penal Code (RPC).
Antecedents
On 02 March 2010, accused-appellant was indicted for the crime of Rape, in relation to Section 5(b) of Republic Act No. (RA) 7610,[4] in separate Informations, the accusatory portions of which state:
Criminal Case No. P-4356 Version of the Prosecution
In May 2009, private complainant AAA (AAA), then a thirteen (13)-year-old minor,[7] and her younger sister, BBB, went to live with accused-appellant, their father's cousin, to fulfill his promise to send the children to school. Accused-appellant treated the siblings kindly at first, but merely a week after, accused-appellant began to sexually abuse AAA.[8]
The first incident happened on the first Saturday of June 2009. Accused-appellant called AAA to his room to pluck his gray hair strands. Once inside, he locked the door, made AAA lie down, and ordered her to remove her shirt and shorts. She fearfully obeyed him and did not cry for help because accused-appellant angrily threatened to kill her and her family.[9] Feeling powerless, she covered her face with a pillow as accused-appellant fondled and sucked her breasts, and licked her private part. Still unsatisfied, accused-appellant inserted his finger into AAA's private part but withdrew the same after AAA pleaded that it was painful.[10] Thereafter, AAA dressed up and left.[11]
The following Saturday, accused-appellant called AAA again to his room. This time, he wanted her to give him a massage. Upon AAA's entry, he locked the door and kissed her lips. When she said, "[y]ou said, I will just massage,"[12] he got angry but did not persist, and allowed her to massage him. She left the room once he fell asleep.[13]
AAA lost count of the instances accused-appellant sexually molested her but remembered that it happened almost every Saturday.[14]
On 02 January 2010, accused-appellant summoned AAA into his store. She fearfully complied and went inside the store. There, accused-appellant kissed her lips, breasts and vagina, then inserted his penis in/into her vagina. AAA felt both pain and anger.[15] Moments later, accused-appellant's 18-year-old daughter, CCC, arrived and saw them both naked. When CCC asked his father about what happened, the latter got a knife and warned her against reporting the incident to anyone.[16] AAA, thereafter, went home and kept the incidents to herself. CCC, on the other hand, mentioned the incident to DDD, another cousin of AAA, which information ultimately led to FFF, AAA's mother.[17]
FFF immediately fetched her daughters from accused-appellant's house,[18] and reported the incident to the barangay officials, and police authorities.[19] FFF also had AAA undergo medical examination.[20]
Dr. Angelina Celzo (Dr. Celzo) found positive healed lacerations at the 1, 3, 5 and 7 o'clock positions on AAA's hymen and noted that her vagina admitted one (1) finger-breadth with ease. Dr. Celzo opined that the four (4) lacerations were possibly caused by the insertion of a hard, blunt object.[21]
Version of the Defense
Accused-appellant denied the charges against him. Although he admitted that AAA and BBB stayed with him and his family, he claimed that he could not have raped AAA in June 2009 as she was no longer staying with them at that time. Also, the alleged rape on 02 January 2010 could not be true because the day before that, he had a drinking session with his friends until 3:00 A.M. the following day. Later that morning, AAA woke him up and prepared him a cup of coffee. She then cuddled with him and sat on his lap when CCC arrived and saw them in that position.[22]
Ruling of the RTC
On 28 November 2014, the RTC rendered its Joint Judgment,[23] the dispositive portion of which reads:
Ruling of the CA
On 14 February 2017, the CA promulgated its Decision, affirming accused-appellant's conviction but modified the awards of damages, thus:
Issues
Accused-appellant claims that:
I.
Simply stated, the issue is whether or not the CA rightly affirmed accused-appellant's conviction for two (2) counts of rape.
Ruling of the Court
We sustain accused-appellant's conviction with modification.
Accused-appellant is liable for
lascivious conduct under Section 5(b)
of Republic Act No. 7610
In Criminal Case No. P-4356, the RTC, as affirmed by the CA, convicted accused-appellant of the crime of rape through sexual intercourse under Art. 266-A in relation to Art. 266-B of the RPC.
We find the disposition of the RTC and the CA to be erroneous.
Rape via sexual intercourse is committed only by a man through the penile penetration of the woman victim's vagina. On the other hand, sexual assault[28] may be committed by either a man or a woman against a man or a woman through the insertion of the penis into another person's mouth or anal orifice, or the insertion of any instrument or object into the genital or anal orifice of another person.[29]
In this case, the Information charged accused-appellant with rape through carnal knowledge. However, the pieces of evidence disclose that accused-appellant inserted his finger, not his penis, into the vagina of AAA, without her consent. He achieved this by threatening to kill AAA and her family if she did not submit to his bestial desires. It would thus appear that the incident constituted sexual assault as it involved the insertion of an object into AAA's genital orifice. However, accused-appellant cannot be convicted of sexual assault considering that the latter crime has been held not to be included in rape via sexual intercourse given the essential difference in the means of commission (penile penetration v. object penetration).[30]
The foregoing notwithstanding, the Court finds that based on the facts established, accused-appellant may still be convicted of lascivious conduct under Section 5(b) of RA 7610.
As a rule, an accused can only be convicted of the crime with which he or she is charged. This rule proceeds from the constitutional guarantee that an accused shall always be informed of the nature and cause of the accusation against him or her. An exception to this is the rule on variance[31] under Sections 4 and 5, Rule 120 of the Rules of Court, which states:
RULE 120
Judgment
While the Information in Criminal Case No. P-4356 alleges the elements of rape through sexual intercourse, the prosecution was able to prove during trial that accused-appellant committed lascivious acts against AAA. The kissing of a minor victim's lips, mashing of her breasts and insertion of the offender's finger into the victim's vagina, have been held to constitute lascivious conduct[33] within the purview of Section 2(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, in relation to Section 5(b) of RA 7610, which defines lascivious conduct as:
Corollary to this, the case of People v. Tulagan,[35] which reconciled the provisions of acts of lasciviousness, rape via carnal knowledge and sexual assault in the RPC, as amended by RA 8353, vis-a-vis RA 7610, this Court reiterated the guidelines it set forth in People v. Caoili[36] in designating or charging the proper offense in case lascivious conduct is committed under Section 5(b) of RA 7610, and in determining the proper penalty, viz:
The finding of guilt beyond
reasonable doubt for the crime of
rape under Art. 266-A, in relation to
Art. 266-B of the RPC, in Criminal
Case No. P-4357 is proper
To obtain a conviction for a charge of rape under Article 266-A (1) of the RPC, as amended by RA 8353,[38] the prosecution must establish that: (a) the offender had carnal knowledge of a woman; and (b) he accomplished this act under the circumstances mentioned in the provision, e.g., through force, threat or intimidation. The gravamen of rape is sexual intercourse with a woman against her will.[39]
The Court agrees that the prosecution had adequately proven accused-appellant's guilt beyond reasonable doubt for rape committed on 02 January 2010. AAA's testimony, corroborated by Dr. Celzo's medical findings, clearly established that accused-appellant had sexual intercourse with AAA, without the latter's consent. Having instilled fear of physical harm against AAA's person and her family, accused-appellant successfully cowed AAA and led her to believe that she had no choice but to do accused-appellant's bidding.
The credibility of AAA is unaffected
by trivial inconsistencies and
discrepancies in her Sinumpaang
Salaysay and testimony in court
We likewise affirm the factual findings and the evaluation of AAA's credibility and testimony in the absence of showing that the lower courts may have overlooked, misapprehended, or misapplied any fact or circumstance of weight and substance.[40] When a woman, especially a minor, alleges rape, she says in effect all that is necessary to mean that she has been raped. Further, youth and immaturity are generally badges of truth and sincerity. A young girl's revelation that she had been raped, coupled with her voluntary submission to medical examination and willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity, cannot be so easily dismissed as mere fabrication.[41]
Accused-appellant faults the RTC and the CA for giving credence to AAA's testimony, contending that there were discrepancies between AAA's sinumpaang salaysay and testimony, and that her testimony itself also bore inconsistencies and absurdities. He points to the discrepancies given by AAA about the details of her residence at the time of the first incident, the site of second incident, and the exact number of times he allegedly molested her.[42]
The Court is not persuaded.
The claimed discrepancies refer to trivial matters which neither negate nor disprove the commission of the alleged offenses. Accused-appellant himself admitted that his store is merely 15 meters away from AAA's house.[43] Meanwhile, accused-appellant's house is approximately 70 to 100 meters away from AAA's house per AAA and FFF's estimate.[44] Hence, the distance between accused-appellant's house and AAA's house, as well as his store and AAA's house, was not of such nature as to render it impossible for him to commit the subject offenses. Meanwhile, there is no discrepancy as to the exact number of instances accused-appellant raped AAA since the latter candidly admitted in her testimony the fact that she could not remember the precise number of times she was molested but it always happened on a Saturday.
At any rate, it has been held that discrepancies or inconsistencies between a witness' affidavit and testimony do not necessarily impair the latter's credibility as affidavits are taken ex parte and are often incomplete or inaccurate for lack or absence of searching inquiries by the investigating officer.[45] In the event of any inconsistency between a witness' affidavit and testimony in court, as in this case, the latter shall prevail.[46]
Accused-appellant also argues that even AAA's testimony is not credible for being riddled with inconsistencies as to where the second incident occurred, whether penetration took place, his reaction when she refused to massage him, and whether AAA indeed feared him.[47]
The argument must fail. The inconsistencies pointed out by accused-appellant refer to minor details only, which do not touch upon the central fact of the crime and do not impair AAA's credibility. If at all, they serve as proof that AAA was not coached or rehearsed.[48]
AAA's failure to resist or flee from
accused-appellant's clutches, and to
immediately seek help or report the
incident to the authorities, does not
impair the truthfulness of her
testimony
Lastly, accused-appellant brands as absurd AAA's claim of molestation because she failed to escape from accused-appellant's house after the first rape incident and immediately inform her mother thereof.[49]
It has been held that the failure of the victims to shout for help or escape during the incident does not impair their credibility. It is not also fatal to the prosecution's case. No standard form of behavior can be anticipated of a rape victim following her defilement, particularly a child who could not be expected to fully comprehend the ways of an adult. People react differently to emotional stress, and rape victims are no different from them.[50] In this case, AAA was only a 13-year[-]old minor at the time of the incidents. Given her tender age, her failure to immediately flee from accused-appellant, by itself, cannot taint her credibility as a rape victim.
Neither can the delay in reporting the incidents to the proper authorities taint her trustworthiness. A rape charge becomes doubtful only when the delay in revealing its commission is unreasonable and unexplained.[51] Here, AAA did not immediately report the incidents to her mother considering the moral ascendancy and influence exerted upon her by accused-appellant, whom she relied on for support of her educational needs, as well as accused-appellant's threats of bodily harm against her and her family.
All the foregoing considered, this Court affirms accused-appellant's conviction for rape through sexual intercourse under Art. 266-A in relation to Art. 266-B of the RPC, amended by RA 8353.
The penalty and awards of damages
must be modified in accordance with
the recent jurisprudence
The imposable penalty for lascivious conduct under Section 5(b) of RA 7610, in Criminal Case No. P-4356, is reclusion temporal medium to reclusion perpetua. The Indeterminate Sentence Law (ISL) provides that if the crime is punished under a special law, as in this case, the maximum term shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Nonetheless, when the crime is defined in a special law but the penalty therefor is taken from the technical nomenclature in the RPC, the legal effects under the system of penalties native to the Code would necessarily apply to the special law.[52] Applying the ISL, accused-appellant is hereby sentenced to suffer an indeterminate penalty often (10) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. Accused-appellant is further ordered to pay AAA the amounts of Php 50,000.00 as civil indemnity, Php 50,000.00 as moral damages, and Php 50,000.00 as exemplary damages.[53]
In Criminal Case No. P-4357, the Court finds the penalty of reclusion perpetua in order. The award of Php 75,000.00 each in civil indemnity, moral damages and exemplary damages is likewise sustained being in accordance with current jurisprudence.[54]
Finally, the imposed interest at the rate of six percent (6%) per annum on all damages awarded from date of finality of this Decision until fully paid by the CA is likewise sustained.[55]
WHEREFORE, the instant appeal is hereby DISMISSED. Accordingly, the Decision dated 14 February 2017 of the Court of Appeals is AFFIRMED with MODIFICATIONS. Accused-appellant is found GUILTY beyond reasonable doubt:
SO ORDERED.
Leonen, (Chairperson), Gesmundo, Carandang, and Gaerlan, JJ., concur.
[*] The identity of the victim or any information which could establish or compromise her identity, including the names of her immediate family or household members, and the barangay and town of the incident, are withheld pursuant to SC Amended Administrative Circular No. 83-2015. The real name of the accused-appellant is also replaced with fictitious initials by reason of his relationship to the minor victim.
[1] Rollo, pp. 18-20.
[2] Id at. 02-17; penned by CA Associate Justice Ramon Paul L. Hernando (now a Member of this Court), and concurred in by Associate Justices Stephen C. Cruz and Elihu A. Ybanez of the Special 5th Division, Court of Appeals, Manila.
[3] CA rollo, pp. 82-87; penned by RTC Presiding Judge Marvel C. Clavecilla.
[4] An Act Providing for a Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes.
[5] Records, Criminal Case No. P-4356, p. 01.
[6] Records, Criminal Case No. P-4357, p. 01.
[7] Records, Criminal Case No. P-4356, p. 09. AAA's Birth Certificate indicate her birth date as 29 December 1993.
[8] TSN dated 15 May 2012, pp. 06-07.
[9] Id at 08-11.
[10] Id at 13.
[11] TSN dated 15 May 2012, pp. 11-13.
[12] TSN dated 19 June 2012, p. 05.
[13] Id at 04-06.
[14] Id. at 06.
[15] Id at 08-10.
[16] Id. at 10-11.
[17] Id. at 11-13.
[18] TSN dated 24 September 2013, pp. 03-08.
[19] Id. at 09-10.
[20] Records, Criminal Case No. P-4356. p. 11.
[21] Id. TSN dated 25 April 2013, pp. 05-06.
[22] TSN dated 31 July 2014, pp. 04-08.
[23] CA rollo, pp. 82-87.
[24] Id. at 86-87.
[25] Rollo, p. 16.
[26] Id. at 18-20.
[27] CA rollo, p. 62.
[28] People v Tulagan, G.R. No. 227363, 12 March 20! 9.
[29] People v. Caoili, 815 Phil. 839-954 (2017); G.R. Nos. 196342 and 196848, 08 August 2017; 835 SCRA 107, 141-142.
[30] Peoplev. Pareja, 724 Phil. 759-788 (2014); G.R. No. 202122, 15 January 2014; 714 SCRA 131, 158.
[31] Osorio v. People, G.R. No. 207711, 02 July 2018; 869 SCRA 274, 392-393.
[32] People v. Manansala, 708 Phil. 66-80 (2013), G.R. No. 175939, 03 April 2013; 695 SCRA 70, 72.
[33] People v. Caoili, supra at note 29, p. 169.
[34] Id. at 150.
[35] Supra at note 28.
[36] Supra at note 29, p. 153.
[37] Records, Criminal Case No. P-4356, p. 9.
[38] An Act Expanding the Definition of the Crime of Rape, Reclassifying the Same as a Crime Against Persons, Amending for the Purpose Act No. 3815, as amended, Otherwise known as the Revised Penal Code, and for Other Purposes, otherwise known as "The Anti-Rape Law of 1997."
[39] People v Ejercito, G.R. No. 229861, 02 July 2018.
[40] People v. Divinagracia, Sr., 814 Phil. 730-757 (2017); G.R. No. 207765, 26 July 2017; 833 SCRA 53, 71.
[41] People v. Descartin, Jr., 810 Phil. 881-895 (2017); G.R. No. 215195, 07 June 2017; 826 SCRA 650, 661.
[42] CA rollo, pp. 68-70.
[43] TSN dated 31 July 2014, pp. 12-13.
[44] TSN dated 15 May 2012, p. 05; TSN dated 05 August 2013, p. 3.
[45] Peoplev. Gomales,Jr., 781 Phil. 149-163 (2016); G.R. No. 192233, 17 February 2016; 784 SCRA 235, 245.
[46] People v. Amarela and Racho, G.R. No. 225642-43, 17 January 2018; 852 SCRA 54.
[47] CA rollo, pp. 70-74.
[48] People v. Gersamio, 763 Phil. 523-541 (2015); G.R. No. 207098, 08 July 2015; 762 SCRA 390, 403.
[49] CA rollo, pp. 15-18 and 74-77.
[50] People v. Nuyte, G.R. No. 219111, 12 March 2018; 858 SCRA 250, 262-263.
[51] People v. Bejim, G.R. No. 208835, 19 January 2018; 852 SCRA 130.
[52] People v. Padlan, 817 Phil. 1008-1029 (2017); G.R. No. 214880, 06 September 2017; 839 SCRA 153, 174.
[53] Supra at note 28.
[54] Id
[55] People v. De Chavez. G.R. No. 218427, 31 January 2018; 853 SCRA 543, 552.
On 02 March 2010, accused-appellant was indicted for the crime of Rape, in relation to Section 5(b) of Republic Act No. (RA) 7610,[4] in separate Informations, the accusatory portions of which state:
That sometime in the year 2009 and the days thereafter at Barangay xxxxxxxxxxx, Province of Camarines Sur, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, through force, intimidation and influence, did then and there, willfully, unlawfully and knowingly, undress and succeed in having carnal knowledge with xxx, a thirteen (13) years old minor, without her consent and against her will, an act by deed which debases, degrades or demeans the intrinsic worth and dignity of the said victim as a human being, to her damage and prejudice in such amount as may be proven in court.
ACTS CONTRARY TO LAW.[5]Criminal Case No. P-4357
That on January 2, 2010 at Barangay xxxxxxxxxxx, Province of Camarines Sur, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, through force, intimidation and influence, did then and there, willfully, unlawfully and knowingly, undress and succeed in having carnal knowledge with xxx, a thirteen (13) years old minor, without her consent and against her will, an act by deed which debases, degrades or demeans the intrinsic worth and dignity of the said victim as a human being, to her damage and prejudice in such amount as may be proven in court.
ACTS CONTRARY TO LAW.[6]
In May 2009, private complainant AAA (AAA), then a thirteen (13)-year-old minor,[7] and her younger sister, BBB, went to live with accused-appellant, their father's cousin, to fulfill his promise to send the children to school. Accused-appellant treated the siblings kindly at first, but merely a week after, accused-appellant began to sexually abuse AAA.[8]
The first incident happened on the first Saturday of June 2009. Accused-appellant called AAA to his room to pluck his gray hair strands. Once inside, he locked the door, made AAA lie down, and ordered her to remove her shirt and shorts. She fearfully obeyed him and did not cry for help because accused-appellant angrily threatened to kill her and her family.[9] Feeling powerless, she covered her face with a pillow as accused-appellant fondled and sucked her breasts, and licked her private part. Still unsatisfied, accused-appellant inserted his finger into AAA's private part but withdrew the same after AAA pleaded that it was painful.[10] Thereafter, AAA dressed up and left.[11]
The following Saturday, accused-appellant called AAA again to his room. This time, he wanted her to give him a massage. Upon AAA's entry, he locked the door and kissed her lips. When she said, "[y]ou said, I will just massage,"[12] he got angry but did not persist, and allowed her to massage him. She left the room once he fell asleep.[13]
AAA lost count of the instances accused-appellant sexually molested her but remembered that it happened almost every Saturday.[14]
On 02 January 2010, accused-appellant summoned AAA into his store. She fearfully complied and went inside the store. There, accused-appellant kissed her lips, breasts and vagina, then inserted his penis in/into her vagina. AAA felt both pain and anger.[15] Moments later, accused-appellant's 18-year-old daughter, CCC, arrived and saw them both naked. When CCC asked his father about what happened, the latter got a knife and warned her against reporting the incident to anyone.[16] AAA, thereafter, went home and kept the incidents to herself. CCC, on the other hand, mentioned the incident to DDD, another cousin of AAA, which information ultimately led to FFF, AAA's mother.[17]
FFF immediately fetched her daughters from accused-appellant's house,[18] and reported the incident to the barangay officials, and police authorities.[19] FFF also had AAA undergo medical examination.[20]
Dr. Angelina Celzo (Dr. Celzo) found positive healed lacerations at the 1, 3, 5 and 7 o'clock positions on AAA's hymen and noted that her vagina admitted one (1) finger-breadth with ease. Dr. Celzo opined that the four (4) lacerations were possibly caused by the insertion of a hard, blunt object.[21]
Accused-appellant denied the charges against him. Although he admitted that AAA and BBB stayed with him and his family, he claimed that he could not have raped AAA in June 2009 as she was no longer staying with them at that time. Also, the alleged rape on 02 January 2010 could not be true because the day before that, he had a drinking session with his friends until 3:00 A.M. the following day. Later that morning, AAA woke him up and prepared him a cup of coffee. She then cuddled with him and sat on his lap when CCC arrived and saw them in that position.[22]
On 28 November 2014, the RTC rendered its Joint Judgment,[23] the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered as follows:
1. In Crim. Case No. P-4356, finding the accused XXX, GUILTY beyond reasonable doubt of the crime of Rape defined and penalized under Article 266-A and Art. 266-B of the Revised Penal Code and he is hereby sentenced to suffer the penalty of Reclusion Perpetua; and
2. In Crim. Case No. P-4357, finding the accused XXX, GUILTY beyond reasonable doubt of the crime of Rape defined and penalized under Article 266-A and Art. 266-B of the Revised Penal Code and he is hereby sentenced to suffer the penalty of Reclusion Perpetua.
He is also directed to pay the victim in each case the amount of Fifty Thousand Pesos (P50,000.00) as moral damages and Twenty-five thousand pesos (P25,000.00) as exemplary damages.
The accused is credited in full for the period of his preventive imprisonment if he agreed voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, with four-fifths only.
SO ORDERED.[24]
On 14 February 2017, the CA promulgated its Decision, affirming accused-appellant's conviction but modified the awards of damages, thus:
WHEREFORE, in view of the foregoing, the instant appeal is DENIED. The Joint Judgment of the Regional Trial Court, Branch 33, of xxxxxxxxxxx. Camarines Sur in Criminal Case Nos. P-4356 and P-4357 dated November 28, 2014 is hereby AFFIRMED with MODIFICATIONS in that the amount of exemplary damages shall be increased to PhP 75,000.00 for each count of rape; that the amount of moral damages shall be increased to PhP 75,000.00 for each count of rape; that the victim shall be awarded the amount of Php 75,000.00 as civil indemnity for each count of rape; and that all the monetary awards shall have an interest rate of 6% per annum from the finality of this Decision until fully paid.Hence, this appeal.[26]
SO ORDERED.[25]
Accused-appellant claims that:
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE HIGHLY INCREDIBLE AND INCONSISTENT TESTIMONY OF THE PRIVATE COMPLAINANT.II.
THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE ACCUSED-APPELLANT'S DEFENSE.[27]
Simply stated, the issue is whether or not the CA rightly affirmed accused-appellant's conviction for two (2) counts of rape.
We sustain accused-appellant's conviction with modification.
Accused-appellant is liable for
lascivious conduct under Section 5(b)
of Republic Act No. 7610
In Criminal Case No. P-4356, the RTC, as affirmed by the CA, convicted accused-appellant of the crime of rape through sexual intercourse under Art. 266-A in relation to Art. 266-B of the RPC.
We find the disposition of the RTC and the CA to be erroneous.
Rape via sexual intercourse is committed only by a man through the penile penetration of the woman victim's vagina. On the other hand, sexual assault[28] may be committed by either a man or a woman against a man or a woman through the insertion of the penis into another person's mouth or anal orifice, or the insertion of any instrument or object into the genital or anal orifice of another person.[29]
In this case, the Information charged accused-appellant with rape through carnal knowledge. However, the pieces of evidence disclose that accused-appellant inserted his finger, not his penis, into the vagina of AAA, without her consent. He achieved this by threatening to kill AAA and her family if she did not submit to his bestial desires. It would thus appear that the incident constituted sexual assault as it involved the insertion of an object into AAA's genital orifice. However, accused-appellant cannot be convicted of sexual assault considering that the latter crime has been held not to be included in rape via sexual intercourse given the essential difference in the means of commission (penile penetration v. object penetration).[30]
The foregoing notwithstanding, the Court finds that based on the facts established, accused-appellant may still be convicted of lascivious conduct under Section 5(b) of RA 7610.
As a rule, an accused can only be convicted of the crime with which he or she is charged. This rule proceeds from the constitutional guarantee that an accused shall always be informed of the nature and cause of the accusation against him or her. An exception to this is the rule on variance[31] under Sections 4 and 5, Rule 120 of the Rules of Court, which states:
Judgment
Section 4. Judgment in Case of Variance between Allegation and Proof. - When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.The due recognition of the constitutional right of an accused to be informed of the nature and cause of the accusation through the criminal complaint or information is decisive of whether his or her prosecution for a crime stands or not. The right is not transgressed if the information sufficiently alleges facts and omissions constituting an offense that includes the offense established to have been committed by the accused,[32] as in this case.
Sec. 5. When an offense includes or is included in another. — An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter. (Emphases supplied)
While the Information in Criminal Case No. P-4356 alleges the elements of rape through sexual intercourse, the prosecution was able to prove during trial that accused-appellant committed lascivious acts against AAA. The kissing of a minor victim's lips, mashing of her breasts and insertion of the offender's finger into the victim's vagina, have been held to constitute lascivious conduct[33] within the purview of Section 2(h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, in relation to Section 5(b) of RA 7610, which defines lascivious conduct as:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of an person, bestiality, masturbation, lascivious exhibition of the genitals or public area of a person. (Emphasis supplied)In People v. Caoili[34] the Court held that an accused may be held guilty of acts of lasciviousness performed on a child, i.e., lascivious conduct under Section 5(b) of RA 7610, which was the offense proved, because it is included in rape, the offense charged.
Corollary to this, the case of People v. Tulagan,[35] which reconciled the provisions of acts of lasciviousness, rape via carnal knowledge and sexual assault in the RPC, as amended by RA 8353, vis-a-vis RA 7610, this Court reiterated the guidelines it set forth in People v. Caoili[36] in designating or charging the proper offense in case lascivious conduct is committed under Section 5(b) of RA 7610, and in determining the proper penalty, viz:
Since AAA was 13 years old at the time of the commission of the crime, as shown by her birth certificate,[37] the proper designation of the crime committed is lascivious conduct under Section 5(b) of RA 7610. Thus, in Criminal Case No. P-4356, this Court finds accused-appellant guilty beyond reasonable doubt of the said offense.
- The age of the victim is taken into consideration in designating or charging the offense, and in determining the imposable penalty.
- If the victim is under twelve (12) years of age, the nomenclature of the crime should be "Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5(b) of R.A. No. 7610." Pursuant to the second proviso in Section 5(b) of R.A. No. 7610, the imposable penalty is reclusion temporal in its medium period.
- If the victim is exactly twelve (12) years of age, or more than twelve (12) but below eighteen (18) years of age, or is eighteen (18) years old or older but is unable to fully take care of herself/himself or protect herself/himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition, the crime should be designated as "Lascivious Conduct under Section 5(b) of R.A. No. 7610," and the imposable penalty is reclusion temporal in its medium period to redusion perpetua. (Emphasis supplied)
The finding of guilt beyond
reasonable doubt for the crime of
rape under Art. 266-A, in relation to
Art. 266-B of the RPC, in Criminal
Case No. P-4357 is proper
To obtain a conviction for a charge of rape under Article 266-A (1) of the RPC, as amended by RA 8353,[38] the prosecution must establish that: (a) the offender had carnal knowledge of a woman; and (b) he accomplished this act under the circumstances mentioned in the provision, e.g., through force, threat or intimidation. The gravamen of rape is sexual intercourse with a woman against her will.[39]
The Court agrees that the prosecution had adequately proven accused-appellant's guilt beyond reasonable doubt for rape committed on 02 January 2010. AAA's testimony, corroborated by Dr. Celzo's medical findings, clearly established that accused-appellant had sexual intercourse with AAA, without the latter's consent. Having instilled fear of physical harm against AAA's person and her family, accused-appellant successfully cowed AAA and led her to believe that she had no choice but to do accused-appellant's bidding.
The credibility of AAA is unaffected
by trivial inconsistencies and
discrepancies in her Sinumpaang
Salaysay and testimony in court
We likewise affirm the factual findings and the evaluation of AAA's credibility and testimony in the absence of showing that the lower courts may have overlooked, misapprehended, or misapplied any fact or circumstance of weight and substance.[40] When a woman, especially a minor, alleges rape, she says in effect all that is necessary to mean that she has been raped. Further, youth and immaturity are generally badges of truth and sincerity. A young girl's revelation that she had been raped, coupled with her voluntary submission to medical examination and willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity, cannot be so easily dismissed as mere fabrication.[41]
Accused-appellant faults the RTC and the CA for giving credence to AAA's testimony, contending that there were discrepancies between AAA's sinumpaang salaysay and testimony, and that her testimony itself also bore inconsistencies and absurdities. He points to the discrepancies given by AAA about the details of her residence at the time of the first incident, the site of second incident, and the exact number of times he allegedly molested her.[42]
The Court is not persuaded.
The claimed discrepancies refer to trivial matters which neither negate nor disprove the commission of the alleged offenses. Accused-appellant himself admitted that his store is merely 15 meters away from AAA's house.[43] Meanwhile, accused-appellant's house is approximately 70 to 100 meters away from AAA's house per AAA and FFF's estimate.[44] Hence, the distance between accused-appellant's house and AAA's house, as well as his store and AAA's house, was not of such nature as to render it impossible for him to commit the subject offenses. Meanwhile, there is no discrepancy as to the exact number of instances accused-appellant raped AAA since the latter candidly admitted in her testimony the fact that she could not remember the precise number of times she was molested but it always happened on a Saturday.
At any rate, it has been held that discrepancies or inconsistencies between a witness' affidavit and testimony do not necessarily impair the latter's credibility as affidavits are taken ex parte and are often incomplete or inaccurate for lack or absence of searching inquiries by the investigating officer.[45] In the event of any inconsistency between a witness' affidavit and testimony in court, as in this case, the latter shall prevail.[46]
Accused-appellant also argues that even AAA's testimony is not credible for being riddled with inconsistencies as to where the second incident occurred, whether penetration took place, his reaction when she refused to massage him, and whether AAA indeed feared him.[47]
The argument must fail. The inconsistencies pointed out by accused-appellant refer to minor details only, which do not touch upon the central fact of the crime and do not impair AAA's credibility. If at all, they serve as proof that AAA was not coached or rehearsed.[48]
AAA's failure to resist or flee from
accused-appellant's clutches, and to
immediately seek help or report the
incident to the authorities, does not
impair the truthfulness of her
testimony
Lastly, accused-appellant brands as absurd AAA's claim of molestation because she failed to escape from accused-appellant's house after the first rape incident and immediately inform her mother thereof.[49]
It has been held that the failure of the victims to shout for help or escape during the incident does not impair their credibility. It is not also fatal to the prosecution's case. No standard form of behavior can be anticipated of a rape victim following her defilement, particularly a child who could not be expected to fully comprehend the ways of an adult. People react differently to emotional stress, and rape victims are no different from them.[50] In this case, AAA was only a 13-year[-]old minor at the time of the incidents. Given her tender age, her failure to immediately flee from accused-appellant, by itself, cannot taint her credibility as a rape victim.
Neither can the delay in reporting the incidents to the proper authorities taint her trustworthiness. A rape charge becomes doubtful only when the delay in revealing its commission is unreasonable and unexplained.[51] Here, AAA did not immediately report the incidents to her mother considering the moral ascendancy and influence exerted upon her by accused-appellant, whom she relied on for support of her educational needs, as well as accused-appellant's threats of bodily harm against her and her family.
All the foregoing considered, this Court affirms accused-appellant's conviction for rape through sexual intercourse under Art. 266-A in relation to Art. 266-B of the RPC, amended by RA 8353.
The penalty and awards of damages
must be modified in accordance with
the recent jurisprudence
The imposable penalty for lascivious conduct under Section 5(b) of RA 7610, in Criminal Case No. P-4356, is reclusion temporal medium to reclusion perpetua. The Indeterminate Sentence Law (ISL) provides that if the crime is punished under a special law, as in this case, the maximum term shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Nonetheless, when the crime is defined in a special law but the penalty therefor is taken from the technical nomenclature in the RPC, the legal effects under the system of penalties native to the Code would necessarily apply to the special law.[52] Applying the ISL, accused-appellant is hereby sentenced to suffer an indeterminate penalty often (10) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. Accused-appellant is further ordered to pay AAA the amounts of Php 50,000.00 as civil indemnity, Php 50,000.00 as moral damages, and Php 50,000.00 as exemplary damages.[53]
In Criminal Case No. P-4357, the Court finds the penalty of reclusion perpetua in order. The award of Php 75,000.00 each in civil indemnity, moral damages and exemplary damages is likewise sustained being in accordance with current jurisprudence.[54]
Finally, the imposed interest at the rate of six percent (6%) per annum on all damages awarded from date of finality of this Decision until fully paid by the CA is likewise sustained.[55]
WHEREFORE, the instant appeal is hereby DISMISSED. Accordingly, the Decision dated 14 February 2017 of the Court of Appeals is AFFIRMED with MODIFICATIONS. Accused-appellant is found GUILTY beyond reasonable doubt:
Legal interest of six percent (6%) per annum, is imposed on all damages awarded from the date of finality of this Decision until fully paid.
1) 2)
SO ORDERED.
Leonen, (Chairperson), Gesmundo, Carandang, and Gaerlan, JJ., concur.
[*] The identity of the victim or any information which could establish or compromise her identity, including the names of her immediate family or household members, and the barangay and town of the incident, are withheld pursuant to SC Amended Administrative Circular No. 83-2015. The real name of the accused-appellant is also replaced with fictitious initials by reason of his relationship to the minor victim.
[1] Rollo, pp. 18-20.
[2] Id at. 02-17; penned by CA Associate Justice Ramon Paul L. Hernando (now a Member of this Court), and concurred in by Associate Justices Stephen C. Cruz and Elihu A. Ybanez of the Special 5th Division, Court of Appeals, Manila.
[3] CA rollo, pp. 82-87; penned by RTC Presiding Judge Marvel C. Clavecilla.
[4] An Act Providing for a Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes.
[5] Records, Criminal Case No. P-4356, p. 01.
[6] Records, Criminal Case No. P-4357, p. 01.
[7] Records, Criminal Case No. P-4356, p. 09. AAA's Birth Certificate indicate her birth date as 29 December 1993.
[8] TSN dated 15 May 2012, pp. 06-07.
[9] Id at 08-11.
[10] Id at 13.
[11] TSN dated 15 May 2012, pp. 11-13.
[12] TSN dated 19 June 2012, p. 05.
[13] Id at 04-06.
[14] Id. at 06.
[15] Id at 08-10.
[16] Id. at 10-11.
[17] Id. at 11-13.
[18] TSN dated 24 September 2013, pp. 03-08.
[19] Id. at 09-10.
[20] Records, Criminal Case No. P-4356. p. 11.
[21] Id. TSN dated 25 April 2013, pp. 05-06.
[22] TSN dated 31 July 2014, pp. 04-08.
[23] CA rollo, pp. 82-87.
[24] Id. at 86-87.
[25] Rollo, p. 16.
[26] Id. at 18-20.
[27] CA rollo, p. 62.
[28] People v Tulagan, G.R. No. 227363, 12 March 20! 9.
[29] People v. Caoili, 815 Phil. 839-954 (2017); G.R. Nos. 196342 and 196848, 08 August 2017; 835 SCRA 107, 141-142.
[30] Peoplev. Pareja, 724 Phil. 759-788 (2014); G.R. No. 202122, 15 January 2014; 714 SCRA 131, 158.
[31] Osorio v. People, G.R. No. 207711, 02 July 2018; 869 SCRA 274, 392-393.
[32] People v. Manansala, 708 Phil. 66-80 (2013), G.R. No. 175939, 03 April 2013; 695 SCRA 70, 72.
[33] People v. Caoili, supra at note 29, p. 169.
[34] Id. at 150.
[35] Supra at note 28.
[36] Supra at note 29, p. 153.
[37] Records, Criminal Case No. P-4356, p. 9.
[38] An Act Expanding the Definition of the Crime of Rape, Reclassifying the Same as a Crime Against Persons, Amending for the Purpose Act No. 3815, as amended, Otherwise known as the Revised Penal Code, and for Other Purposes, otherwise known as "The Anti-Rape Law of 1997."
[39] People v Ejercito, G.R. No. 229861, 02 July 2018.
[40] People v. Divinagracia, Sr., 814 Phil. 730-757 (2017); G.R. No. 207765, 26 July 2017; 833 SCRA 53, 71.
[41] People v. Descartin, Jr., 810 Phil. 881-895 (2017); G.R. No. 215195, 07 June 2017; 826 SCRA 650, 661.
[42] CA rollo, pp. 68-70.
[43] TSN dated 31 July 2014, pp. 12-13.
[44] TSN dated 15 May 2012, p. 05; TSN dated 05 August 2013, p. 3.
[45] Peoplev. Gomales,Jr., 781 Phil. 149-163 (2016); G.R. No. 192233, 17 February 2016; 784 SCRA 235, 245.
[46] People v. Amarela and Racho, G.R. No. 225642-43, 17 January 2018; 852 SCRA 54.
[47] CA rollo, pp. 70-74.
[48] People v. Gersamio, 763 Phil. 523-541 (2015); G.R. No. 207098, 08 July 2015; 762 SCRA 390, 403.
[49] CA rollo, pp. 15-18 and 74-77.
[50] People v. Nuyte, G.R. No. 219111, 12 March 2018; 858 SCRA 250, 262-263.
[51] People v. Bejim, G.R. No. 208835, 19 January 2018; 852 SCRA 130.
[52] People v. Padlan, 817 Phil. 1008-1029 (2017); G.R. No. 214880, 06 September 2017; 839 SCRA 153, 174.
[53] Supra at note 28.
[54] Id
[55] People v. De Chavez. G.R. No. 218427, 31 January 2018; 853 SCRA 543, 552.