Prefatory
This appeal assails the Decision
[1] dated August 11, 2016 of the Court of Appeals in CA-G.R. CR HC No. 01915 entitled "
People of the Philippines v. xxxxxxxxxxxxxx," affirming appellant's conviction for two (2) counts of statutory rape.
The Proceedings Before the Trial Court
The ChargesAppellant
xxxxxxxxxxx was indicted for violation of Section 266-A in relation to 266-B of the Revised Penal Code in forty-two (42) separate Informations docketed Criminal Case Nos. DNO-3393 through DNO-3434. Except for the material dates, the Informations alleged, thus:
That on or about (date of commission) in xxxxxxxxxxx, Danao City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being a step-father of AAA, and by means of force and intimidation, as well as his moral ascendancy, did then and there willfully, unlawfully and feloniously have sexual intercourse with AAA, a virgin under 12 years of age against the latter's will.
CONTRARY TO LAW.[2]
Additionally, in eleven (11) separate Informations docketed Criminal Case Nos. DNO-3435 through DNO-3445, appellant was indicted for simple rape. Again, except for the material dates, the Informations uniformly alleged:
That sometime in (date of commission) xxxxxxxxxxx, Danao City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being a step-father of AAA, and by means of force and intimidation, and as well as his moral ascendancy, did then and there willfully, unlawfully and feloniously have sexual intercourse with AAA, a virgin over 12 years old but under 18 years of age against the latter's will.
CONTRARY TO LAW.[3]
All fifty-three (53) cases got consolidated before the Regional Trial Court, Branch 25, Danao City, Cebu.
On arraignment, appellant pleaded not guilty to all fifty-three (53) counts of rape.
[4]During the pre-trial, the parties stipulated on the following: 1) AAA was still a minor in January 2000; 2) AAA is the daughter of BBB; and 3) BBB was the live-in partner of appellant.
[5] The cases were, thereafter, jointly tried.
Prosecution's EvidenceAAA testified that since 1995, she had been living with her mother BBB and appellant in a rented house in Danao City. From 1999, when she was only eight (8) years old, to 2004 when she was already thirteen (13) years old, appellant had sexually ravished her several times over.
[6]As charged in Criminal Case No. DNO-3393,
[7] the first rape incident happened in 1999 when her mother had left for work. At noontime, she was taking a nap when she felt appellant had come up to her. He removed her underwear, kissed and touched her, and made her touch his penis. He, thereafter, inserted his penis in her vagina. She got so scared and felt so much pain in her vagina. After it was over, appellant warned her to keep silent about the incident, then, left her alone in the house. When BBB came home, she tried to tell her what happened but BBB did not believe her.
[8]Then, the second rape, as charged in Criminal Case No. DNO-3394,
[9] happened three (3) days later. He did the same things to her and, afterwards, inserted his penis into her vagina. She was scared and again felt pain in her vagina. The same sexual abuse happened once or twice a day from 1999 to 2004. When the sexual abuse thereafter became even more frequent than before, she could bear it no longer.
[10]She wanted to report the rape incidents to the police but shame and fear restrained her from doing so. In July 2004, appellant threatened to shave off her hair if she went out with her friends. Then one day, she finally mustered the courage to narrate her ordeal to her friend Portia, who in turn, told her aunt Lucia Lawas. She later on recounted her ordeal to Lucia Lawas.
[11]Lucia Lawas took her first to a priest for confession and then to a social worker at the Department of Social Welfare and Development (DSWD). The social worker recommended that she undergo physical examination at the Danao General Hospital, after the doctor in the Danao General Hospital found hymenal lacerations on her vagina, she was advised to go to the "Pink Room" of the Vicente Sotto Memorial Medical Center (VSMMC), Cebu City. There, she was again examined by Dr. Liwayway Reyes who confirmed that she did sustain hymenal lacerations. She stayed with DSWD for ten (10) months.
[12]The Defense's EvidenceAppellant denied the charges. He professed to love AAA very much, she being the daughter of his live-in partner. He was saddened when the DSWD took AAA from his custody. Lucia Lawas orchestrated the whole thing to get back at him when he stopped working for her.
[13]The Trial Court's Ruling
By Decision
[14] dated May 28, 2012, the trial court ruled that the prosecution was only able to prove two (2) counts of statutory rape, i.e. the first one (Criminal Case No. DNO-3393) which happened sometime in 1999 when AAA was only eight (8) years old; and the second one (Criminal Case No. DNO-3394), which happened three (3) days later. But as for the remaining fifty-one (51) counts, the trial court found that the prosecution utterly failed to prove how each of these supposed rape incidents was committed. Thus, the trial court decreed:
WHEREFORE, FOR ALL THE FOREGOING CONSIDERATIONS, this Court finds accused xxxxxxxxxxxxxxxxxx GUILTY of two (2) counts of statutory rape under Criminal Cases (sic) No. DNO-3393 and DNO-3394 and hereby sentences him to suffer the penalty of RECLUSION PERPETUA under paragraph 3, Article 335 of the Revised Penal Code, as amended by R.A. 7659 for each of the two (2) counts of rape committed.
The accused is hereby directed to pay the victim the amount of P50,000.00 as civil indemnity ex delicto and the amount of P50,000.00 as moral damages, conformably to current jurisprudence for each of the two (2) crimes of rape committed.
For lack of proof beyond reasonable doubt, accused xxxxxxxxxxx is hereby ACQUITTED of the charges against him in Criminal Cases (sic) No. DNO-3395 through DNO-3445.
SO ORDERED.[15]
The Proceedings before the Court of Appeals
On appeal, appellant faulted the trial court for giving credence to AAA's testimony despite its alleged inconsistencies and improbabilities: 1) on direct, she testified that in 1999, appellant raped her in the afternoon, but on cross, she claimed it happened in the morning; and 2) her allegation that appellant did not remove his penis from her vagina for about an hour was impossible. Further, the date and time when the two (2) rape incidents supposedly occurred were not proven by the prosecution, thus, creating serious doubt as to their occurrence.
[16]On the other hand, the Office of the Solicitor General (OSG), through Assistant Solicitor General Herman Cimafranca and State Solicitor Sharon Millan-Decano riposted that the trial court's assessment of the credibility of AAA's testimony should be given much weight. Too, the exact dates and time of the rape incidents are not essential elements of rape. Besides, a victim of tender age is not expected to recall the exact date and time when her traumatic experience took place. Lastly, AAA gave positive and categorical testimony on how the two (2) rape incidents occurred and who the perpetrator was.
[17]The Court of Appeals' Ruling
By its assailed Decision
[18] dated August 11, 2016, the Court of Appeals affirmed with modification, thus:
WHEREFORE, premises considered, the instant appeal is DENIED. The assailed 28 May 2012 Decision of the Regional Trial Court, Branch 25, of Danao City is AFFIRMED WITH THE MODIFICATIONS that:
(1) Accused-appellant is hereby ordered to pay AAA PhP30,000.00 as exemplary damages for each count of Statutory Rape; and
(2) All monetary awards for damages shall earn interest at the legal rate of 6% per annum from the date of finality of this Decision until fully paid.
SO ORDERED.[19]
The Present Appeal
Appellant now seeks affirmative relief from the Court and prays anew for his acquittal. For the purpose of this appeal, the OSG
[20] and appellant
[21] both manifested that in lieu of supplemental briefs, they were adopting their respective briefs in the Court of Appeals.
Issue
Did the Court of Appeals err in affirming the trial court's verdict of conviction against appellant for two (2) counts of statutory rape?
Ruling
We affirm appellant's conviction in Criminal Case Nos. DNO-3393 and DNO-3394 but for qualified rape, not for statutory rape.
When she took the witness stand in 2011, AAA recalled the following details on how appellant sexually ravished her way back sometime in 1999 (Criminal Case No. DNO-3393), thus:
Q: Can you describe before this court what are you referring to us he was molesting you while you were still young?
A: I was still in grade one, eight years old.
Q: The question is what did he do when you said he was molesting you?
A: I was sleeping at that time and he removed my panty.
Q: Can you still recall what date wherein you were first molested by your stepfather?
A: What I can remember is that I was still eight years old at that time.
Q: Now you said you were born in the year 1991, will you please add eight years to 1991 and inform this court what is the year?
A: 1999.
x x x
Q: Can you still remember the exact time by which you were molested the first time in the year 1999?
x x x
A: Perhaps it's 2:00 o'clock in the afternoon because at 5:00 o'clock my mother would arrive.
Q: Now, aside from undressing yourself during that time, what else did accused xxxxxxxxxxx do?
A: That's then he kissed me and touched me.
Q: Aside from those things, what else did he do?
A: That's then he raped or molested me.
x x x
Q: Can you tell the court and elaborate what do you mean by he raped you?
A: He caused me to touch his sex organ.
Q: Aside from that what other else did he do?
A: He inserted his penis into my vagina.
Q: What have you felt when his penis was inserted in your vagina?
A: Pain.
Q: For how long in terms of minutes did he insert his penis into your vagina?
A: For a long time.
Q: Can you estimate before this court that long time you are mentioning?
A: Around one hour.
Q: During that one hour period, what have you felt when he was then in the act of inserting his penis in your womanhood?
A: I was afraid.
Q: Aside from fear, what other else have you felt?
A: Pain.
Q: What part of your body have you felt pain?
A: My vagina sir.[22]
AAA recounted that sometime in 1999 appellant woke her up, undressed her, and proceeded to touch and kiss her. He made her touch his penis then inserted it in her vagina. She was so scared when appellant was about to penetrate her vagina. She endured the pain in her vagina because appellant was inside her for a long time. She spoke of appellant's carnal knowledge of her when she was only eight (8) years old.
On the second rape incident (Criminal Case No. DNO-3394), AAA recalled:
Q: Now, going back to those rape instances, now after the first incident in the year 1999, can you still recall how many days had elapsed before the second rape incident happened?
A: Around three days later.
Q: And what have you felt when that second incident happened?
A: I was then sick.
Q: The question is what have you feel (sic) when the second rape happened?
A: I was also afraid sir.
Q: And again describe before this court of what do you mean you were rape (sic) the second time, what action did he do towards you?
A: The same thing happened sir he inserted his penis (in) my organ.
Q: What have you felt when that organ of him was placed inside to (sic) your organ?
A: I felt also pain sir.[23]
AAA stated that the second rape incident happened three (3) days after the first. She said appellant did the same things to her. As in the first, she was scared and felt pain when appellant entered her. She specifically said appellant "
inserted his penis (in) my organ."
Indeed, the spontaneity and consistency by which AAA had detailed out the incident dispel any insinuation of a rehearsed testimony. Her eloquent testimony should be enough to confirm the veracity of the charge.
[24] After all, the nature of the crime of rape entails reliance on the lone, yet clear, convincing and consistent testimonies
[25] of the victim herself.
Notably, AAA was only eight (8) years old when the first and second rape incidents occurred. She took the stand twelve (12) years later. Surely, she is not expected to recount with exactitude every detail of the incidents which happened twelve (12) years ago. Errorless recollection of a harrowing incident cannot be expected of a witness, especially when she is recounting details of an experience so humiliating and so painful as rape. What is important is that the victim's declarations are consistent on basic matters constituting the elements of rape and her positive identification of the person who did it to her.
[26]Also, the alleged inconsistency in AAA's testimony pertaining to whether the first rape incident happened in the morning or in the afternoon refers to a trivial matter which does not affect AAA's credibility as a witness. The fact remains that the first rape incident occurred on the day AAA testified it happened. Surely, if the testimonial inconsistencies do not hinge on any essential element of the crime, such inconsistencies are deemed insignificant and will not have any bearing on the essential fact or facts testified to. These inconsistencies, if at all, even indicate that the witness was not rehearsed.
[27]As for AAA's supposed improbable statement that appellant's penis was in her vagina for about an hour, we keenly note that she was only eight (8) years old at the time of the incident. A child's perception of time is different from that of an adult. Besides, since human memory is fickle and prone to the stresses of emotions, accuracy in one's testimonial account has never been used as a standard in testing the credibility of a witness.
[28]AAA's failure to specify the exact time and date when the first rape occurred does not, standing alone, cast doubt on appellant's guilt. Neither date nor time of the commission of rape is a material element of the crime. The essence of rape is carnal knowledge of a female through force or intimidation against her will. Precision as to the time when the rape is committed has no bearing on its commission.
[29]We also note that the respective Informations in Criminal Case Nos. DNO-3393 and DNO-3394 allege that the dates of commission of the two rape incidents were "
on or about January 4, 2000" and "
sometime in the month of February, 2000," respectively. Yet, the discrepancy of the dates of commission in the twin Informations and AAA's testimony that both rape incidents happened in 1999, is not fatal.
People v. Nazareno[30] teaches:
The argument is specious. An information is intended to inform an accused of the accusations against him in order that he could adequately prepare his defense. Verily, an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. Thus, to ensure that the constitutional right of the accused to be informed of the nature and cause of the accusation against him is not violated, the information should state the name of the accused; the designation given to the offense by the statute; a statement of the acts or omissions so complained of as constituting the offense; the name of the offended party; the approximate time and date of the commission of the offense; and the place where the offense has been committed. Further, it must embody the essential elements of the crime charged by setting forth the facts and circumstances that have a bearing on the culpability and liability of the accused, so that he can properly prepare for and undertake his defense.
However, it is not necessary for the information to allege the date and time of the commission of the crime with exactitude unless time is an essential ingredient of the offense. In People v. Bugayong, the Court held that when the time given in the information is not the essence of the offense, the time need not be proven as alleged; and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action. (Emphasis supplied)
More, AAA was physically examined twice: first by a doctor at Danao General Hospital, and second by Dr. Liwayway Reyes of VSMMC. Dr. Reyes found that AAA sustained deep notches at 3, 7, 10, and 12 o'clock positions. Medical expert Dr. Naomi Poca of VSMMC testified that a finding of 7 o'clock notch is suggestive of an injury caused by a blunt instrument. Dr. Poca further opined that if the subject had no history of operation or accident, said notch could have been caused by sexual abuse.
[31]Verily, therefore, AAA's assertion that she had been sexually ravished at least twice in 1999, as charged in Criminal Case Nos. DNO-3393 and DNO-3394, solidly conforms with the medical certificate and Dr. Poca's expert testimony. Indeed, where the victim's testimony is corroborated by physical findings of penetration, there is sufficient basis for concluding that sexual intercourse did take place.
[32]As against AAA's positive and categorical testimony, appellant only interposes denial and alibi. But denial is the weakest of all defenses. It easily crumbles in the face of positive identification by accused as the perpetrator of the crime.
[33] Appellant's claim that the complaints against him were orchestrated by Lucia Lawas out of spite, deserves scant consideration. Alleged motive of family feud, resentment, or revenge is not an uncommon defense, the same has never swayed the Court from lending full credence to the testimony of a complainant who remained steadfast throughout her direct and cross-examinations.
[34]We hold, however, that appellant is guilty of two (2) counts of qualified rape, not statutory rape in Criminal Case Nos. DNO-3393 and DNO-3394.
Statutory rape 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 they are not elements of statutory rape. For the absence of free consent is conclusively presumed when the victim is below the age of twelve (12). At that age, the law presumes that the victim does not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, to convict an accused of the crime of statutory rape, the prosecution carries the burden of proving: (a) the age of the complainant; (b) the identity of the accused; and (c) the sexual intercourse between the accused and the complainant.
[35]Here, the prosecution offered AAA's testimony that she was born on July 1, 1991
[36] and an unauthenticated photocopy of her certificate of live birth
[37] to prove she was below twelve (12) years old when appellant, by asserting his moral ascendancy, succeeded in having carnal knowledge of her against her will in 1999.
People v. Pruna[38] enumerates the guidelines in proving the victim's age:
In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance.
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.
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:
a. 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;
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.
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 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.
On the basis of
Pruna, we hold that AAA's testimony on her date of birth and the unauthenticated photocopy of her birth certificate do not constitute sufficient proof of her exact age during the two rape incidents. In
People v. Lastrollo,
[39] the victim's testimony on her age was considered insufficient since it was not clearly and expressly admitted by the accused, as in this case. Also, in
People v. Belen,
[40] a photocopy of the victim's birth certificate was not accorded probative weight.
To recall, the prosecution and the defense stipulated that AAA was still a minor in January 2000. But was she below twelve (12) years old when the twin counts of rape happened? The evidence on record do not say so. Surely, minority does not mean one is below twelve (12) years old. It only means one has not reached the age of majority (eighteen [18] years old).
In other words, appellant cannot be convicted of statutory rape. But, he is guilty of qualified rape in accordance with Articles 266-A and 266-B of the Revised Penal Code, which ordain:
Article 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.
Article 266-B. Penalty. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
x x x
The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim;
x x x
Under the foregoing provisions, rape is qualified when: a) the victim is under eighteen (18) years of age; and b) committed by the victim's parent, ascendant, step-parent, guardian, or relative by consanguinity or affinity within the third civil degree, or by the common-law spouse of the victim's parent. But, in order for an accused to be convicted of qualified rape, the Information itself must allege that the victim is under eighteen (18) years of age at the time of rape and the accused is the victim's parent, ascendant, step parent, guardian, or relative by consanguinity or affinity within the third civil degree, or common-law spouse of the victim's parent. These are special qualifying circumstances which alter the nature of the crime of rape and warrant the increase of the imposable penalty.[41]
In Criminal Case Nos. DNO-3393 and DNO-3394, it was uniformly alleged therein that appellant was AAA's stepfather and AAA was "a virgin under 12 years of age." The parties stipulated only on her minority, which means below eighteen (18) years old and not below twelve (12) years old. In any event, in view of the concurrence of the elements of relationship and age (below eighteen [18] years old), appellant indubitably committed qualified rape which warrants the imposition of the death penalty. Albeit by virtue of RA 9346, the death penalty has been reduced to reclusion perpetua.
As for appellant's civil liability, the award of P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as exemplary damages for each count of qualified rape should be granted in conformity with prevailing jurisprudence.[42]
WHEREFORE, the appeal is DENIED. In Criminal Case No. DNO-3393 and Criminal Case No. DNO-3394, appellant xxxxxxxxxxxxxxxxxxxx is found GUILTY of QUALIFIED RAPE and sentenced to RECLUSION PERPETUA without eligibility of parole in each case.
He is further required TO PAY AAA for each count of QUALIFIED RAPE P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as exemplary damages. All monetary awards are subject to six percent (6%) interest from finality of this decision until fully paid.
SO ORDERED.
Carpio, (Chairperson), Caguioa, and J. Reyes, Jr., JJ., concur.
Perlas-Bernabe, J., on official leave.
