404 Phil. 542

FIRST DIVISION

[ G.R. No. 136394, February 15, 2001 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HERSON NAAG Y LOBAS, ACCUSED-APPELLANT.

D E C I S I O N

PUNO, J.:

One of the more interesting conceptual exercises in the field of Criminal Law is the characterization of a crime. The challenge is not only to prove existence of its elements. The challenge is to correctly categorize it. In the case at bar, a man sexually defiled then immediately divested his woman-victim of her belongings. Is he guilty of the special complex crime of Robbery with Rape or the separate crimes of Robbery and Rape? The answer lies in his intent.

The accused in this case is a certain Herson Naag y Lobas. He was indicted for Robbery with Rape under an Information which reads:
"That on or about the 8th day of January, 1996 at Daraga, Albay x x x the above named accused, armed with a screw driver, by means of violence and intimidation, did then and there willfully, unlawfully and feloniously, have carnal knowledge of the complainant Desiree Gollena, against her will, by inflicting upon her with the use of said screw multiple serious physical injuries, and thereafter said accused, having been fully satisfied of his carnal lust over said Desiree Gollena and believing her to be dead, with intent of gain, divested and took her personal belongings, to wit: (1) one bag containing clothes worth P500.00 (2) one gold bracelet worth P1,500.00 (3) wallet containing P1,800.00 and (4) ladies wristwatch valued at P600.00 to the damage and prejudice of said Desiree Gollena.

ACTS CONTRARY TO LAW."[1]
He pleaded "not guilty" during arraignment and the action proceeded to trial.

The evidence for the prosecution shows that Desiree was a singer in a band which regularly plays at the Gloss and Glitters Disco located in Tabaco, Albay. On the morning of January 8, 1996, she went home to Sipi, Daraga, Albay, to visit her family. She took the bus and by about 4 o'clock in the morning, she alighted at the town's Freedom Park in Daraga. She crossed a street where two tricycles were parked. She woke up one of the drivers and inquired whether she could be brought to Sipi. Getting a positive response, she boarded it. Upon reaching her place, she told him to stop and handed to him her fare. To her surprise, what she received in return was not loose change, but a slap.

The driver then began to maul her. Desiree fought back as hard as she could, but this made the driver more ferocious in his assault. She was strangled, boxed and kicked. She was repeatedly stabbed with a screw driver on her face, head, and different parts of her body. Her head was banged against the sidecar. She realized that her struggle was in vain and would only put her life in greater danger. She stopped resisting and pretended to be dead.

He then transported her to another place. He lifted her from the tricycle and she thought she would be thrown to a ravine or cliff beside what appeared to be an abandoned house. Instead, she was tossed to the ground. The driver removed her pants and panties. She could not resist, fearing death. After her garments were removed, her legs were spread apart and he copulated with her.

After satisfying his lust, the driver took her wristwatch worth P600.00, a bracelet worth P1,500.00 and fled with her bag containing her clothes, wallet containing P1,800.00 in cash, and some loose change. When Desiree sensed that he has left the premises, she rolled down the ravine. She did not have the energy to stand and walk and so she crawled until she reached a house, which turned out to be the dwelling place of witness Engineer Antonio Balacano located at Sybil Subdivision, Sipi, Daraga. She cried for help.

Engr. Balacano responded to Desiree's call for assistance. He saw Desiree, a bloodied girl, cold and torn, squatting by the gate with her pants down and hanging on one leg. It was already 5 o'clock in the morning. The wife of the engineer telephoned local police authorities for assistance. In the meantime, Desiree was brought to the Albay Provincial Hospital where she was given medical treatment. Dr. Jose Solano testified that the girl was in pain when he examined her and that she sustained multiple lacerations and stab wounds on different parts of her body, and had blackening of her left and right eyes. Dr. Aileen Francis Bartilet examined Desiree's genitalia and noted the absence of any sign of injury: there was no bleeding, no laceration of the hymen, no contusion in the vulvar wall of the vagina, and no abrasion.

Later that morning of January 8, 1996, policemen came to the hospital to investigate the incident. Desiree gave a description of the suspect as well as the tricycle. The next day, on January 9, SPO1 Pastor Perena Jr. and SPO2 Domingo Mabini happened to apprehend one Herson Naag y Lobas, a tricycle driver, for driving a public utility tricycle without the necessary license. Naag and the vehicle were brought to the police station of Daraga. Perena and Mabini realized that Naag fit the description of the malefactor given by Desiree. They brought the confiscated student driver's permit of Naag (which contains his photograph) to the hospital for identification. Their hunch was confirmed when Desiree, upon being shown the permit, identified the man in the picture as the one who raped and robbed her.

When the policemen returned to the station, Naag was already gone, but not without leaving his tricycle behind. They brought the tricycle to the hospital for identification. Desiree did not have any difficulty in identifying the tricycle as the same vehicle she boarded on the morning of January 8. A criminal complaint was then filed against Naag. On February 25, 1996, he was arrested by the NBI agents of Naga City at Tagkawayan, Quezon.

The accused alleged, in his defense, that it was impossible for him to be the author of the crime at bar. He claimed that at the time and date of the incident, he was sleeping in their house approximately seven kilometers away from where it happened. His tricycle was not in a serviceable condition then, and he was repairing it the night before. It was fixed only on January 9 since he was able to buy the spare part that he needed at about 8:30 a.m. of January 8. The previous day was a Sunday and almost all of the motor shops were closed. Hence, he alleged that he could not have operated on the Sipi route on the 8th as his tricycle was not in running condition. He explained that he was in Tagkawayan when he was arrested because he had undergone hospitalization and was on an errand.

The defense also called two other witnesses to the stand who backstopped the testimony of the accused. It presented his wife who basically reiterated the story of her husband. She said that he was with her from the night of January 7 up to the morning of January 8, at about 8:30, when he had to buy the spare part that he needed for his tricycle. Similarly, it presented a certain Lino Era, a next-door neighbor who recalled seeing the accused at about 10 o'clock in the evening of January 7 doing some repairs on his tricycle.

In the end, the trial court chose not to believe Naag. It held:
"The accused in his defense put up alibi, a shabby excuse, a defense indicties never seem to tire of. (People vs. Bracamonte, 257 SCRA 380) This defense of the accused cannot prevail over the positive identification by the victim Desiree of the accused and of the tricycle. This defense of alibi is worthless in the face of his being positively identified by the victim Desiree. (People vs. Rivera, 242 SCRA 26)"[2]
However, the trial court did not convict him of the crime he was originally charged with, which is Robbery with Rape. Instead he was meted out two different sentences for the separate crimes of Robbery and Rape, viz:
"WHEREFORE, premises considered, the accused Herson Naag y Lobas is hereby found GUILTY beyond reasonable doubt of the crime of Rape under Art. 335 (1) of the Revised Penal Code as amended, and he is hereby sentenced to suffer the penalty of imprisonment of Reclusion Perpetua with all the accessory penalties thereto appertaining, to pay Desiree Gollena P50,000.00 as Indemnity and P50,000.00 as moral damages.

The accused Herson Naag y Lobas is also found GUILTY beyond reasonable doubt of the separate crime of Robbery under Art. 294 (4) of the Revised Penal Code, and taking into consideration the Indeterminate Sentence Law he is hereby sentenced to suffer the penalty of imprisonment of ten (10) years of Prision mayor medium in its maximum period as the minimum to fourteen (14) years, ten months and twenty (20) days of Reclusion Temporal medium period in its medium period as the maximum and to return the ladies wrist watch worth P600.00, bracelet worth P1,500.00, bag of clothes worth P500.00 or their total value of P2,600.00 if return cannot be had and the cash of P1,800.00. Costs against the accused.

SO ORDERED."[3]
Dissatisfied with the verdict, the accused interposed this appeal. In his brief, he made this lone assignment of error: "The Lower Court erred in finding the accused guilty of the separate crimes of Robbery and Rape."[4]

We affirm the conviction.

There is no cogent reason to disturb the findings of the lower court. Well-entrenched is the rule that an appellate court will generally not disturb the assessment of the trial court on factual matters considering that the latter, as a trier of fact, is in a better position to appreciate the same. The only exceptions allowed are when the trial court has plainly overlooked certain facts of substance which, if considered, may affect the result of the case, or in instances where the evidence fails to support or substantiate the lower court's findings and conclusions, or where the disputed decision is based on a misapprehension of facts.[5] This case does not fall under any of the exceptions. Hence, there is no reason for us to modify the factual findings of the lower court.

Even then, the appellant raises two points in support of his assignment of error designed to sow in our minds seeds of doubt. The first relates to the medical evidence on record while the second deals with his identity.

The appellant capitalizes, firstly, on Dr. Bartilet's testimony on the absence of fresh injury on the private part of the offended party although she was examined almost immediately after the assault. According to him, the findings of said medical expert negate the charge of rape. On the other hand, the prosecution contends that the lack of injury and the healed laceration could be attributed to the sexual intercourse she had with her boyfriend.

The appellant's argument fails to impress. It is to be noted that Dr. Bartilet herself explained that her findings did not eliminate the possibility of sexual intercourse. She opined that it must have been done "only outside the vagina but within the external vulva by merely pushing and giving some force to it."[6] She added that the appellant could have ejaculated and discharged semen on the external genitalia even without penetrating into the vagina.

In rape cases, what is material is that there is penetration of the female organ no matter how slight.[7]7 In a long line of decisions, we have ruled that the only essential point is to prove the entrance or at least the introduction of the male organ into the labia of the pudendum.[8] Hence, the moment the accused's penis knocks at the door of the pudenda it suffices to constitute the crime of rape.[9]

The appellant next assails the identification made by Desiree. He contends that it was still dark at the time of the incident. He argues that when people board a tricycle, they do not usually focus their attention on the driver. He states that the identity of the driver could be the least of Desiree's concern for at 4 o'clock in the morning, she would have just wanted to go home and rest in the comfort of her bed.

We are not persuaded. Desiree could not have failed to recognize the appellant because she was the victim of the assault. A truism founded on ordinary experience is that victims of criminal violence often strive hard to recognize their assailants.[10] Furthermore, a victim has a natural knack in remembering the face of an assailant for she, more than anybody else, would be interested in bringing the malefactor to justice.[11] On the other hand, it would be unnatural for someone who is interested in vindicating the crime to accuse somebody other than the real culprit.[12]

To be sure, Desiree was very emphatic in her identification of the appellant as her assailant, thus:
"Court:
Now that person Herson Naag, how is he related to the accused in this case?
Desiree:
He is the one and same person who raped and robbed me.


Q:
You said it was the first time you saw the accused on January 8, 1996. It was still dark is (sic) it not?
A:
It was bright at the centro.


Q:
But it was not in park (sic) he was sleeping at that time in his tricycle. Is it not? (sic)
A:
It was bright because there were lights.


Q:
But you saw him only once on Jan. 8, 1996. How were you able to recognize him in the Municipal building when you were asked to identify him after one month, being detained?
A:
As I have said, I can never forget his face."[13]
Moreover, Desiree should have no difficulty in identifying the appellant because when she first approached him at the centro to hire his services, the place was bright and well-lighted.

The appellant further argues that Desiree's initial identification of him through his picture is unreliable considering the physical and emotional state she was in at that time. It is urged that due to her physical and mental instability, the showing of the student permit must have generated a prejudice in her mind that "the person shown in the picture of the driver's ID is the one who assaulted her."[14]

The argument proceeds from a wrong assumption. It assumes that the picture was shown before the victim gave the description to the police. It was the other way around. Thus:
"Court:Have you seen him in that parking area before January 8, 1996?
Desiree:No, your honor.


Q:
Now, while you were in the Hospital you said that an ID was shown to you and the picture of a person and whose picture you recognize to be that of a person who raped you. Who showed you that picture?
A:The Police Officer.


Q:How come that the Policeman was able to go to Albay Provincial Hospital with that ID?
A:
Because when they interviewed me in the hospital, I gave them the description of the accused and his tricycle."[15]
The point is made more explicit during Desiree's cross-examination:
"Atty. Gomez (continuing on cross-examination)


Q:
Now, on that date Jan. 9, 1996 were you told by the policemen that the person whose ID was shown to you was one of their suspects?
A:

The policeman told me to identify the person in the ID.



Q:Were you told that the owner of the ID was apprehended for violation of traffic law?
A:No, Sir. I was just asked to identify him.


Q:
After the ID was shown to you that was the time when you also gave them the description of the person, is (sic) it not?
A:
No, Sir. It was on Jan. 8, 1996 when I gave the description of the tricycle driver."[16]
We shall now ascertain the nature and extent of the criminal responsibility of the appellant. The issue is whether the crime committed by him is Robbery with Rape or the two separate felonies of Robbery and Rape.

In the special complex crime of robbery with rape, the true intent of the accused must first be determined because it is his intent that determines the offense he has committed. This Court in People vs. Dinola,[17] citing the cases of People vs. Canastre[18] and People vs. Faigano,[19] held:
"x x x if the intention of the accused was to rob, but rape was committed even before the asportation, the crime is robbery with rape. But if the original plan was to rape but the accused after committing the rape also committed the robbery when the opportunity presented itself, the offense should be viewed as separate and distinct. To be liable for the complex crime of robbery with rape the intent to take personal property of another must precede the rape."
We must ascertain the force which moved the appellant when he employed violence and intimidation against the person of Desiree. It is true that the appellant raped Desiree before she was dispossessed of her personal properties. This, however, is not decisive. Article 294 of the Revised Penal Code does not distinguish whether the rape was committed before, during or after the robbery. It suffices that the robbery was accompanied by rape.[20]

We agree with the conclusion of the trial court that rape was the primary intent of the appellant and his taking away of the belongings of the victim was only a mere afterthought. Although the trial court did not state the reasons for its ruling, there exists sufficient evidence on record from where such deduction can be made.

First. It is obvious from the degree and character of the violence and intimidation which the appellant employed (and when he employed it) upon Desiree that his intent was to rape her. He applied such force as to render her resistance to his lust inutile. The kind of force used was unnecessary if he only planned to rob Desiree. On the other hand, the excessive force was clearly meant to attain his lustful scheme. Resultantly, when he finally forced his bestial desire on her, he was able to traverse, in a manner of speaking, the path of least resistance.

Second. The appellant transported Desiree from where he first mauled her to an abandoned place. All the time that Desiree was helpless after her mauling, appellant did not concern himself with robbing Desiree even if he could have done so with ease if not with impunity. Instead, he preoccupied himself in finding a location more suited, nay, comfortable, for his plan of lying with her. Needless to say, an abandoned house fits well.

Lastly, at no time did the appellant ask for the belongings of Desiree. Neither did he search her for valuables, except for the wallet in her pants. What is apparent is that he only: (1) took her watch and bracelet, both easily seen and noticeable, and (2) fled with her bag which was already in the tricycle. These overt acts only indicate that he decided to take Desiree's belongings as an afterthought and only when the opportunity presented itself.

We disagree, however, on the ruling of the trial court that the appellant is guilty of robbery. He should only be convicted of theft because when he took the personal properties of Desiree, the element of violence and intimidation was no longer present. While it is true that he inflicted force upon her person, that was with the view and in pursuance of the rape, not of the taking. When the asportation happened, Desiree was near lifeless, incapable of putting any form of opposition.

The penalty for theft is determined by the value of the property taken. Under Article 309 of the Revised Penal Code, any person guilty of theft shall be punished by "the penalty of prision correccional in its minimum and medium periods, if the value of the thing stolen is more than 200 pesos but does not exceed 6,000 pesos." Applying the Indeterminate Sentence Law, the minimum penalty to be meted out on the appellant Naag should be anywhere within the range of 2 months and 1 day to 6 months of arresto mayor; and the maximum should be within the range of 6 months and 1 day to 4 years and 2 months of prision correccional. Considering that no aggravating or mitigating circumstance attended the commission of the crime, the appellant should be sentenced to an indeterminate prison term of 4 months and 21 days of arresto mayor maximum as the minimum, to 1 year, 8 months and 21 days of prision correccional as the maximum.

IN VIEW WHEREOF, the impugned decision is hereby MODIFIED. The accused-appellant Herson Naag y Lobas is found GUILTY beyond reasonable doubt of the crime of RAPE under Article 335 (1) of the Revised Penal Code as amended, and he is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua with all the accessory penalties thereto appertaining, to pay Desiree Gollena P50,000.00 as indemnity and P50,000.00 as moral damages.

The accused-appellant Herson Naag y Lobas is also found GUILTY beyond reasonable doubt of the separate crime of THEFT under Article 308 of the Revised Penal Code, and taking into consideration the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment of 4 months and 21 days of arresto mayor maximum as the minimum, to 1 year, 8 months and 21 days of prision correccional as the maximum, and to return the ladies wristwatch worth P600.00, bracelet worth P1,500.00, bag of clothes worth P500.00 or their total value of P2,600.00 if return cannot be made and the cash of P1,800.00. Costs against the accused.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago JJ., concur.



[1] Information; Rollo, p.10.

[2] Judgment, p.5; Rollo, p.25.

[3] Decision penned by Judge Vladimir B. Brusola, Br. 6, Legazpi City.

[4] Brief for Accused-Appellant, p.3; Rollo, p. 40.

[5] People vs. Limon, 306 SCRA 367 (1999).

[6] TSN, June 4, 1996, p.14.

[7] People vs. Faigano, 254 SCRA 10 (1996).

[8] People vs. Lazaro, 249 SCRA 235 (1995).

[9] People vs. Echegaray, 257 SCRA 561 (1996).

[10] People vs. Melendres, 106 SCRA 575 (1981).

[11] See People vs. Bundang, 272 SCRA 241 (1997).

[12] See People vs. Panganiban, 241 SCRA 91 (1995).

[13] TSN, September 10, 1996, p. 14.

[14] Brief for Accused-Appellant, p.6; Rollo, p. 43.

[15] TSN, November 10, 1996, p.10.

[16] Ibid.

[17] 183 SCRA 493 (1990).

[18] 82 Phil 480 (1948).

[19] 254 SCRA 10 (1996).

[20] Aquino, Revised Penal Code, vol. III, 1988 ed., p. 127.



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