Sample Court Decision

Republic of the Philippines Regional Trial Court Second Judicial Region Branch 40 Cauayan City, Isabela

PEOPLE OF THE PHILIPPINES, Plaintiff,

-versus-

Criminal Case No. 40-0001-17 For: RAPE by Sexual Assault in relation to R.A. No. 7610

ORLANDO PORLUCAS Accused. x---------------------------------x

JUDGMENT

THE CASE

The Accused was charged for rape under ART. 266-A(2) of the Revised Penal Code, docketed as Criminal Case No. 40-0001-17, the Information of which reads:

“That on December 27, 2017, at on or about 6 o’clock in the evening, in Barangay San Fermin, Cauayan City, Isabela, and within the preliminary jurisdiction of this Honorable Court, the above-named Respondent dragged the victim AAA, minor, fifteen (15) years of age, 1

in a grassy area, specifically around Our Lady of Pillar Parish College, and did and there, willfully, unlawfully, and feloniously fondled the breasts of the said victim by means of inserting his finger in the latter’s genitalia, with force and intimidation and against her will and consent.

The crime is attended by the aggravating circumstance of minority.

CONTRARY TO LAW.”

THE ANTECEDENTS

1. The Information was filed on January 12, 2018 charging Accused ORLANDO S. PORLUCAS with Rape by Sexual Assault. 2. On January 18, 2018, the Accused was arraigned and pled “Not Guilty”. After which, on the very same day, the Pre-Trial Conference immediately took place. 3. During the trial, the Prosecution presented as witnesses: First, Private Complainant AAA on January 26, 2018; Second, Dr. Dynavie S. Simon on January 26, 2018; Third, Edwardson Malangen on February 01, 2018; and Fourth, P02 YOAN BUENO on February 01, 2018 after which the Prosecution rested. 4. The Prosecution formally offered the following as Documentary Exhibits, viz: a. Medical Examination of AAA conducted by the Dr. Dynavie S. Simon, City Health Officer of Cauayan City, Isabela; b. Certificate of Live Birth of AAA; c. Joint Affidavit of Arrest of the Arresting Officers; d. Sinumpaang Salaysay of AAA; and 2

e. Sinumpaang Salaysay of Witness Edwardson Malangen. 5. On its turn, the Defense presented as witness: First, Accused ORLANDO S. PORLUCAS on February 15, 2018; and Second, Barangay Sillawit, Cauayan City Captain Bong Law on February 15, 2018. The defense then rested its case. 6. Defense formally offered the following as Documentary Exhibits, viz: a. Sinumpaang Salaysay of Accused ORLANDO PORLUCAS; and b. Sinumpaang Salaysay of BONG LAW.

THE PROSECUTION’S VERSION

“On December 26, 2017, at on or about 5 o’clock in the afternoon, AAA went to Brgy. Sillawit, Cauayan City, Isabela to attend the birthday of her friend, Edwardson Malangen (Malangen). At around 6 o’clock in the evening, after having an early dinner at Malangen’s house, AAA informed him that she is going home. Malangen then escorted AAA outside of their home and contracted Accused Orlando Porlucas, who rides a tricycle, to drive AAA to her residence in Lucas Subdivision, San Fermin, to which the Accused agreed.

Accused took the usual Brgy. Sillawit to Lucas Subdivision route, treading the National Highway and taking the corner of National Highway-Puzon Subdivision. However, upon reaching a grassy area near Our Lady of Pillar Parish College, Accused suddenly stopped the tricycle and hurriedly went inside its sidecar where AAA is sitting down. After which, Accused forcefully pulled AAA out of the tricycle and dragged her within the density of the grassy area.

At that juncture, AAA made efforts to escape from the Accused, kicking and biting her but to no avail. Accused punched the left torso of AAA causing her great pain thus ending her physical struggle. Thereafter, Accused covered the mouth of AAA preventing her to scream for help during which Accused aggressively fondled AAA’s breasts and thereafter removed her lower underwear. After which, 3

Accused inserted his finger in AAA’s genitalia and did so repeatedly. Unsatisfied, Accused tried to take off his jeans however this caused him to briefly release his hold unto AAA’s mouth given the latter ample opportunity to shout for help.

Coincidentally, during the occurrence of the foregoing incident, two (2) policemen namely P03 JOHN MICHAEL L. BABAS and P02 YOAN B. BUENO, who were on board their police vehicle, were conducting patrol along the area. Hearing a scream for help, the two policemen immediately stopped their vehicle, in which they saw an abandoned tricycle, and tended to the shout for assistance. Coursing through the tall grasses, the aforementioned policemen saw Accused sitting on the hip area of AAA. Seeing such deplorable sight, the policemen called for the surrender of Accused and caused his apprehension. (Exhibit C)

The Accused and AAA were then taken to the Cauayan City Police Station in which the former was detained. The latter however was referred to Cauayan City District Hospital for a Medico-Legal Examination, conducted by City Health Officer DR. DYNAVIE S. SIMON. The finding of such examination determined that AAA suffered fresh laceration at 3:00 position and had bruises and hematoma on her abdomen and chest, respectively. (Exhibit A)

VERSION OF THE DEFENSE

On December 26, 2017, around six fifteen in the evening (6:15PM), Accused was approached by Malangen to drive AAA in her home in Lucas Subdivision, San Fermin, Cauayan City, Isabela. Accused agreed to the request of Malangen.

During their travel, Accused noticed AAA acting unusually. When Accused took the corner of National Highway-Puzon Subdivision, AAA told him to drop her off there. However, Accused, mindful of his promise to Malangen to drive AAA home, refused to do so. At that instance, AAA began to scream and threatened Accused that she will jump off the sidecar if the latter will not stop the same. 4

The Accused then stopped his tricycle in a grassy area near Our Lady of Pillar Parish in Barangay San Fermin, Cauayan City to help calm down AAA. However, AAA ran away through the tall grasses. Running through his fatherly instincts, Accused followed and chased AAA which he successfully did. Accused grabbed the arm of AAA to take her back to the tricycle however the latter refused and tried to take off the grip of the Accused on her hand. A brief struggle occurred in which AAA screamed and shouted frantically. Eventually, AAA tripped on a rock causing Accused to fall on top of her.

ISSUES

WHETHER THE PROSECUTION PROVED BEYOND REASONABLE DOUBT THAT ACCUSED ORLANDO PORLUCAS’ GUILT FOR THE CRIME OF RAPE THROUGH SEXUAL ASSAULT IN RELATION TO R.A. NO. 7610.

WHETHER THE PENALTY FOR THE CRIME IS TO BE MADE PURSUANT TO ARTICLE 266(B)(2) OF R.A. NO. 8353 OR ARTICLE 5(B) OF R.A. NO. 7610.

THE RULING OF THIS COURT

Accused is Guilty of the crime charged beyond reasonable doubt.

Accused insists that the reason why she fell on top of AAA was because the latter tripped on a stone causing him to fall on top of her. Further, AAA’s institution of the charge of rape against him was ill-founded as he had no intention of committing such a deplorable act to the victim since he has treated her as his own child and that the area to which the crime occurred is populous and luminous making it impossible for him to commit rape and as such, he should be acquitted. 5

This Court does not agree.

CONSIDER THE FOLLOWING:

FIRST, the testimony of AAA passed the “litmus test of credibility” at the witness seat at the hearings on January 26, 2018. Guided by “plain common sense; common observation; common experience; and, human nature”, this Court finds AAA as a convincing witness. AAA had a compelling story on how she was sexually assaulted by Porlucas. For expediency, the Presiding Judge of this Court seated directly across the witness seat to observe AAA’s demeanor. With intense observation, AAA’s demeanor appeared persuasively “natural, sincere and consistent with human nature and the normal cause of things.” There is no doubt that AAA was an honest witness. AAA categorically and positively identified the Accused in Court as her rapist.

During the hearings, it was evident that AAA was in agony, under obvious intense suffering and extreme emotional stress when asked to recollect the events of December 26, 2017. AAA, obviously trembling, was emotional when she narrated how Accused committed his lustful actuations against her. AAA, most certainly, was not acting. “It is a matter of judicial cognizance that the crying of the victim during her testimony is evidence of the credibility of the rape charge.” (People v. Ramos, 296 SCRA 559 (1998), citing People v. Joya, et al., 227 SCRA 9 (1993).

It bears stressing that testimonies of child victims are given full weight and credit, for youth and immaturity are badges of truth. In People v. Evina, 453 Phil. 25, 41 (2003); citing People v. Perez, G.R. No. 122764, September 24, 1998, 296 SCRA 17., the Supreme Court aptly held:

6

“This Court has held time and again that testimonies of rape victims who are young and immature deserve full credence, considering that no young woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being subject to a public trial, if she was not motivated solely by the desire to obtain justice for the wrong committed against her. Youth and immaturity are generally badges of truth. It is highly improbable that a girl of tender years, one not yet exposed to the ways of the world, would impute to any man a crime so serious as rape if what she claims is not true.”

SECOND, this Court finds the defense of the accused, that the institution of the charge against him was ill-founded and ill-motivated, as beyond belief. Alleged motives of resentment or revenge are not uncommon defenses, but such can never sway this Court from lending full credence to the testimony of AAA who remained steadfast throughout her testimony. Besides, no woman, much less that of tender age, would cry rape, allow an examination of her private parts, subject herself to humiliation, go through the rigors of public trial, and taint her good name if her claim was not true.

Accused Porlucas’ assertion that she fell over on top of AAA when the latter tripped on a stone is difficult to appreciate. As testified by AAA and the Arresting Officers, Porlucas was sitting on top of the hip area of AAA. Even given a thousand attempts, such a position cannot be achieved when a person falls on another because the latter tripped on something. Additionally, Porlucas’ assertion that the place to which the crime allegedly occurred is populous and luminous is evidently untruthful and deceptive. Contrary to Porlucas’ claim, the place is not populous and not luminous as there are no residences or establishments near the scene of the crime within a two hundred meter radius, more or less nor there were streetlights. This claim is further debunked due to the time of the commission of 7

the crime, at around 6:15PM of the December 26, 2018 to which classes and activities in the Our Lady of Pillar Parish, the nearest establishment, has momentarily ceased for the holiday break. Clearly, Porlucas was concocting defenses to escape his liability - however absurd it may seem.

THIRD, the medico-legal report substantiates the sexual assault suffered by AAA. The said Report states that AAA suffered bruises and developed hematoma at her upper left breast substantiates her claim that she resisted and struggled against the lustful advances of the Accused. Article 266-D of R.A. No. 8353 provides:

"Article 266-D. Presumptions. - Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A.

Since the testimony of AAA is consistent with the medical findings, a presumption is hereby created that a violation of R.A. No. 8353 has been indeed committed. Accused however failed to overcome such a presumption. Further, taking into consideration that AAA’s testimony per se passed the litmus test of credibility, the consistency between such testimony and the medico legal report makes her more of a formidable witness.

AND FOURTH, this Court finds that the defense of the Accused of denial must fail over the positive and straightforward testimonies of AAA and the other witnesses on the incident.

“It is an established jurisprudential rule that denial, being a negative selfserving defense, cannot prevail over the affirmative allegations of the 8

victim and her categorical and positive identification of the accused as her assailant.” (People v. Nazareno, G.R. No. 167756, April 09, 2008, 551 SCRA 16, 42) xxx Denial must be proved by the Accused with clear and convincing evidence otherwise it cannot prevail over the positive testimony of a credible witness who testify on positive matters. (People v. Guevarra, G.R. No. 182192, October 29, 2008, 570 SCRA 288, 306)

THE PENALTY

In this instant case, the prosecution established beyond reasonable doubt all elements of the crime of rape through sexual assault.

Article 266-B of the RPC imposes the penalty for rape by sexual assault as follows:

ART. 266-B. Penalties. -

Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.

xxxx

Reclusion temporal shall also be imposed if the rape is committed with any of the ten aggravating/qualifying circumstances mentioned in this article. (Emphasis supplied)

It is clear from Article 266-B that generally the penalty for rape through sexual assault is prision mayor. If qualifying circumstances have attended the

9

crime and the same have been properly alleged in the information the penalty imposed would be increased to reclusion temporal.

In this case, the crime committed was rape through sexual assault but inattentive of any qualifying circumstance provided in R.A. No. 8353(B), Paragraph 2. However it has been established that AAA was less than 18 years of age at the time of the crime. This calls for the application of R.A. No. 7610, paragraph 5(b) which reads:

“ARTICLE

III.

Child

Prostitution

and

Other

Sexual

Abuse

Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

xxx

(b)

Those who commit the act of sexual intercourse or lascivious

conduct with a child exploited in prostitution or subject to other sexual abuse…”.

The Implementing Rules and Regulations of Republic Act No. 7610 defines "lascivious conduct": [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, 10

whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

It bears stressing that the Prosecution proved beyond reasonable doubt that Accused committed the crime of rape by sexual assault by repeatedly inserting his finger to the genitalia of AAA through the use of force. In People v. Chingh, G.R. No. 178323, March 16, 2011, 645 SCRA 573, the accused was charged with rape "for inserting his fingers and afterwards his penis into the private part of his minor victim”. The Court of Appeals found the accused guilty of two counts of rape: statutory rape and rape through sexual assault. The Supreme Court modified the penalty imposed for rape through sexual assault to the penalty provided in Article III, Section 5(b) of Republic Act No. 7610, as earlier provided.

Considering that AAA was below 18 years of age, and considering further that the act of the Accused in repeatedly inserting his finger in AAA’s genitalia undeniably amounted to lascivious conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is reclusion temporal in its medium period to reclusion perpetua.”

This Court is mindful to the fact that the accused who commits lascivious acts, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty of reclusion temporal in its medium period than the one who commits Rape through Sexual Assault, which is merely punishable by prision mayor. In enacting Republic Act No. 7610, the legislature intended to impose a higher penalty when the victim is a child. To be sure, it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or those "persons below eighteen (18) years of age or those over but are 11

unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition." (Ricalde v. People, G.R. No. 221002, January 21, 2015).

In this respect, “for Rape through Sexual Assault under paragraph 2, Article 266-A with the attending circumstance of minority thus calling for the application of Section 5(b) of R.A. No. 7610, Accused is sentenced to suffer the indeterminate penalty of seventeen (17) years, four (4) months and one (1) day to thirty years.

Consequently, Accused is ordered to pay AAA:

a) P100,000.00 as civil indemnity; b) P100,000.00 as exemplary damages, plus interest at the rate of six percent (6%) per annum from date of finality of decision until fully paid. (People v. Godofredo Comboy y Cronico, G.R. No. 218399, March 02, 2016).

The Accused is entitled to full credit for the number of days of his preventive detention at the Bureau of Jail Management and Penology in Cauayan City, Isabela commencing on the date of his commitment thereat on December 26, 2017 until the date of the promulgation of his judgment.

SO ORDERED.

February 28, 2018 at Cauayan City, Isabela.

JOHN MICHAEL L. BABAS Presiding Judge (Private Prosecutor)

12