CLEMENT
JOHN FERDINAND M. G.R. No. 147913
NAVARRETE,
Petitioner, Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA
and
GARCIA, JJ.
PEOPLE
OF THE PHILIPPINES,
Respondent. Promulgated:
January 31, 2007
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CORONA, J.:
This petition for review on certiorari[1] assails
the September 29, 2000 decision[2] and May
4, 2001 resolution[3]
of the Court of Appeals (CA) in CA-G.R. CR No. 20531 which affirmed the January
16, 1997 decision of the Regional Trial Court (RTC), Branch 171, Valenzuela,[4] Metro
Manila in Criminal Case No. 5302-V-96.[5]
Petitioner Clement John Ferdinand M.
Navarrete was charged with the crime of statutory rape of BBB[6] under
the following information:
That on or
about October 30, 1995 in Valenzuela, Metro Manila and within the jurisdiction
of this Honorable Court, the above-named accused, did then and there [willfully],
unlawfully and feloniously have sexual intercourse with one [BBB], age[d] 5
years old.
CONTRARY TO
LAW.[7]
On arraignment, petitioner pleaded
not guilty.
The facts show that BBB, who was at
that time five years old, and petitioner were neighbors, their houses being
adjacent to each other.[8] On October 30, 1995, at around past 9:00 in
the evening, BBB went to petitioner’s house to watch television, which was
something she often did.[9] Only
petitioner and BBB were there that night.[10] BBB testified that it was on this occasion
that petitioner sexually abused her, “placed his penis [in her] vagina” twice,
poked her vagina with a “stick with cotton”[11] and
boxed her on the right side of her eye.[12] Then, petitioner brought her to the comfort
room and pointed a knife to her throat.[13] Afterwards, she and petitioner watched a
pornographic movie[14]
together.[15]
AAA, BBB’s mother, testified that
around 10:30 p.m., BBB went out of petitioner’s house. While trembling and
crying, BBB embraced her mother and told her that “Kuya Ferdie sinundot ako.”[16]
The next day, on October 31, 1995,
Dr. Noel Minay, medico-legal officer of the National Bureau of Investigation,
examined BBB. He found that her maidenhead was short, intact and had a narrow
opening at 0.3 cm. in diameter. He
concluded that these findings precluded complete penetration by an
average-sized Filipino male organ in full erection.[17]
Testifying in his own behalf,
petitioner denied the accusation against him and claimed that AAA merely
concocted the charge against him. He alleged
that she had ill feelings against his mother who she thought had something to
do with the separation of her (AAA’s) son from the Philippine Postal
Corporation. He also posited that she resented the Navarretes’ refusal to allow
her to place a “jumper” on their electrical connection.[18]
In a decision dated January 16, 1997,
the RTC absolved petitioner of statutory rape as there was no clear and
positive proof of the entry of petitioner’s penis into the labia of the
victim’s vagina. However, it convicted petitioner for acts of lasciviousness
under Article 336 of the Revised Penal Code (RPC) in relation to Section 5(b),
Article III of RA 7610 (Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act):
WHEREFORE,
[petitioner] Clement John Ferdinand Navarrete is sentenced to suffer an
indeterminate imprisonment of TWELVE (12) YEARS and ONE (1) DAY of RECLUSION
TEMPORAL, as minimum to [SIXTEEN] (16) YEARS of RECLUSION TEMPORAL, as maximum
with the accessory penalties prescribed by the law and to pay the costs.
The
accused is hereby ordered to indemnify the victim the amount of P20,000.00
as moral damages and the amount of P10,000.00 pursuant to Section 31 of
the [Act].[19]
On appeal, the CA affirmed the
decision of the RTC. Thus, this
petition.
Petitioner
asserts that he cannot be convicted of acts of lasciviousness in relation to
Section 5(b), Article III of RA 7610, a crime not specifically alleged in the
information which charged him with statutory rape. Otherwise, his
constitutional right to be informed of the nature and cause of the accusation
against him would be violated. He likewise contends that his guilt for the said
offense was not proven beyond reasonable doubt.
There
is no merit in the petition.
The
Constitution mandates that the accused, in all criminal prosecutions, shall
enjoy the right to be informed of the nature and cause of the accusation
against him.[20]
From this fundamental precept proceeds the rule that the accused may be
convicted only of the crime with which he is charged.[21]
An
exception to this rule is the rule on variance in Section 4, Rule 120 of the
Rules of Court:[22]
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 that which is
proved.
Petitioner
was found guilty of violating Article 336 of the RPC in relation to Section
5(b), Article III of RA 7610:
Sec.
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 xxx xxx
(b) Those who
commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse: Provided, That
when the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, [or] the [RPC], for rape or lascivious conduct as the case may
be: Provided, That the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium period.
Under
this provision, when the victim is under 12 years old, the accused shall be
prosecuted under either Article 335 (for rape) or Article 336 (for acts of
lasciviousness) of the RPC. Accordingly,
although an accused is charged in the information with the crime of statutory
rape (i.e., carnal knowledge of a woman under twelve years of age[23]), the offender
can be convicted of the lesser crime of acts of lasciviousness, which is
included in rape.[24]
The
case of People v. Bon[25] is
squarely in point. In that case, the accused was charged with the rape of a
six-year old girl. The Court ruled that rape was not proved beyond reasonable
doubt. We, however, held that the accused was “liable for the crime of acts of
lasciviousness, as defined and penalized under Article 336 of the RPC in
relation to RA 7610”[26] since
all the elements of this offense were established. Petitioner cannot therefore successfully
argue that his constitutionally protected right to be informed of the nature
and cause of the accusation against him was violated when he was found guilty
under Section 5 of RA 7610.
Petitioner
next contends that his guilt was not proven beyond reasonable doubt. We disagree.
In Amployo
v. People,[27]
we declared that pursuant to Section 5 (b) of RA 7610, before an accused can be
convicted of child abuse through lascivious conduct on a minor below 12 years
of age, the requisites for acts of lasciviousness under Article 336 of the RPC
must be met in addition to the requisites for sexual abuse under Section 5 of
RA 7610.[28]
The
elements of the crime of acts of lasciviousness under Article 336 of the RPC
are the following:
(1)
The
offender commits any act of lasciviousness or lewdness;
(2)
It
is done under any of the following circumstances:
a. By using force or intimidation; or
b.
When
the offended party is deprived of reason or otherwise unconscious; or
c.
When
the offended party is under 12 years of age; and
(3)
The
offended party is another person of either sex.
(emphasis supplied)[29]
The
general rule is that the factual findings of the trial court deserve a high
degree of respect and will not be disturbed on appeal in the absence of any
clear showing that it overlooked, misapprehended or misapplied some facts or
circumstances of weight and substance which can alter the result of the case.[30] We uphold the findings of fact of the RTC, as
affirmed by the CA.
The RTC
and CA did not find evidence of the entrance of petitioner’s penis into the
labia of the victim’s female organ.
Nevertheless, BBB’s testimony established that petitioner committed
lascivious acts on her:
BY ATTY. PRINCIPE: (to witness)
Q: [BBB], do you know accused Ferdinand
Navarette?
A: Yes,
sir.
Q: Also
named Clement John Ferdinand Navarette?
A: Yes,
sir.
Q:
Why do you know Clement John Ferdinand Navarette?
A: Because
he is the one who did something to me.
Q: What
do you mean by “umano”?
A.
He placed his penis into my vagina. (pekpek)
Q: How many times?
A: Two
times, sir.
Q: Then he placed his penis to your vagina,
what did you feel?
A: I
felt pain, sir.
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Q: What else happened after Ferdinand
Navarette put his penis twice on your vagina which you told the Court you felt
pain?
A: He
locked me inside the [comfort room] and he took a knife.
Q: Now, when you were inside the Comfort
Room and you told the Court that he got a knife, what happened next, if any?
A: He stabbed me.
Q: Where?
A: (Witness pointing the throat.)
Q: And when you said “sinaksak” on your throat
you mean accused only pointed [to] your throat?
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COURT:
[All right], witness may
answer.
(Witness
pointing to her throat.)
Q: And what is the meaning that she wants
to convey?
ATTY. TENEZA:
Witness holding her throat.
ATTY. PRINCIPE:
Pointing. Very clear.
Q: When
you pointed your throat, what do you want to convey [with] the word stab?
ATTY. PRINCIPE:
A.
Sinaksak. That
is, Your Honor. Because this is her interpretation of pointing the knife.
xxx xxx xxx
ATTY. PRINCIPE:
After the accused
locked you in the [comfort room] with the knife, according to you, what
happened next, if any?
xxx xxx xxx
Witness:
A: Then I went [out] of the [comfort room]
when I heard my mother calling me.
ATTY. PRINCIPE: (to the witness)
Q: And where was your mother at that time?
A : She was outside and
waiting for my Kuya [XXX].
Q: When you were called by your mother,
according to you, did you approach your mother when hearing that she was
calling you?
ATTY. TENEZA:
It
was already answered, Your Honor.
ATTY. PRINCIPE :
No.
COURT:
Witness
may answer.
ATTY. PRINCIPE: (to the witness)
Q: And what did you tell your mother, if
any?
A: I embraced her.
Q: After embracing your mother, did you tell
[her] something if any?
A: She [asked] me [why] I was still
watching T.V. when the people of the house were already sleeping.
Q: What was your reply to
your mama?
A: Because I used to watch T.V. [in] that
place.
Q: Did you report to your mother what
Ferdinand Navarette did to you?
A: Yes, sir.
Q: How did you tell your mother?
A.
I told my mama “Binastos ako ni Ferdie.”
Q: How did you relate that you were
“binastos ni Ferdie”?
A:
I told my mama: Mama, Ferdie
[placed] his penis on my vagina and then he placed a stick with cotton on my
vagina and then he boxed me, on my right side of my eye.
Q:
How many times were you boxed by
Ferdie, the accused?
A: Two (2) times, sir.[31]
The
foregoing shows that all the elements of acts of lasciviousness were
proved. That BBB was less than twelve
years old at the time of the commission of the offense was not disputed. The
prosecution established that petitioner intentionally “placed his penis” in BBB’s
vagina but without any indication that he was able to penetrate her:
Victim
[BBB] testified that the accused “placed his penis into my vagina” and
“[placed] a stick with cotton [in] my vagina” but the [specific] part of her
vagina where the penis was placed was not indicated.
xxx xxx xxx
The Court cannot
[assume] without doing violence to the precious jural yardstick but the
prosecution must prove and present clear, positive and conclusive evidence of
the act complained of particularly that the penis of the accused gained
entrance [in] the labia majora of the organ of the victim. Not even in the medical findings and
testimony of the NBI Medico-Legal Officer Dr. Noel Minay who conducted
physical/genital examinations on the victim could [we] find support to justify
an inference that there was entrance of the male organ of the accused within the
labia of pudendum.[32]
Both lower courts also found that petitioner poked victim’s
vagina with a stick with cotton and watched a pornographic movie with her.[33] These
acts are undoubtedly acts of lasciviousness or lewdness.[34]
The
elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in
addition to the elements of acts of lasciviousness are as follows:
1.
The
accused commits the act of sexual intercourse or lascivious conduct.
2.
The
said act is performed with a child exploited in prostitution or subjected to
other sexual abuse.
3.
The
child, whether male or female, is below 18 years of age. (Emphasis supplied)[35]
“Lascivious
conduct” is defined under Section 2 (h) of the rules and regulations[36] of RA
7610 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 any person, bestiality, masturbation, lascivious exhibition of
the genitals or pubic area of a person.
The aforestated acts of petitioner undeniably amounted to
lascivious conduct under this law.
Petitioner
insists that Section 5 (b) of RA 7610 refers only to those who commit the act
of sexual intercourse or lascivious conduct with a child exploited in
prostitution and argues that this does not apply in this case since the victim
is not a child exploited in prostitution.[37]
Petitioner’s
argument is untenable. In People v.
Larin (and reiterated in several subsequent cases),[38] we
emphasized that the law covers not only a situation in which a child is abused
for profit but also one in which a child, through coercion or intimidation,
engages in any lascivious conduct.[39] The very title of Section 5, Article III
(Child Prostitution and Other Sexual Abuse) of RA 7610 shows that it applies
not only to a child subjected to prostitution but also to a child subjected to
other sexual abuse. A child is deemed
subjected to “other sexual abuse” when he or she indulges in lascivious conduct
under the coercion or influence of any adult.[40] Here, BBB was sexually abused because she was
coerced or intimidated by petitioner (who poked her neck with a knife)[41] to
indulge in lascivious conduct.
Hence, the prosecution was able to
prove beyond reasonable doubt that petitioner committed acts of sexual abuse
against BBB. The RTC found BBB’s testimony to be clear, candid, and straightforward.
Her testimony was worthy of belief since she was young and had no ill-motive to
falsely testify and impute a serious crime against the accused.[42] In cases of acts of lasciviousness, the lone
testimony of the offended party, if credible, is sufficient to establish the
guilt of the accused.[43]
Moreover, courts are inclined to lend
credence to the testimony of children of tender years. The revelation of an
innocent child whose chastity has been abused deserves full credit, as her
willingness to undergo the trouble and the humiliation of a public trial is an
eloquent testament to the truth of her complaint.[44] In so testifying, she could have only been
impelled to tell the truth.[45]
The trial court’s evaluation of the
testimonies of witnesses is given great respect by the appellate court in the
absence of proof that it was arrived at arbitrarily or that the trial court
overlooked material facts.[46] The rationale behind this rule is that the
credibility of a witness can best be determined by the trial court since it has the direct opportunity
to observe the candor and demeanor of the witnesses at the witness stand and
detect if they are telling the truth or not.[47] We will not interfere with the trial court’s
assessment of the credibility of witnesses.
In the
face of the serious accusation against him, petitioner could only interpose
denial as defense. Denial is an inherently weak defense and cannot prevail over
the positive and categorical identification provided by the complainant.
Denial, if unsubstantiated by clear and convincing evidence, is a self-serving
assertion that deserves no weight in law.[48] As
between the positive declaration of the prosecution witness and the negative
statement of the accused, the former deserves more credence.[49] The
lower courts also correctly disbelieved the corroborating testimonies of
petitioner’s aunt and sister.[50]
Petitioner asserts that the RTC
should not have given evidentiary weight to the inconsistent and contradictory
testimonies of the prosecution witnesses.
He urges this Court to apply the Latin maxim falsus in unus, falsus
in omnibus (false in part, false in everything).
We disagree. We have stated that:
[T]he maxim or rule
“falsus in [unus], falsus in omnibus” does not lay down a categorical
test of credibility. It is not a
positive rule of law or of universal application. It should not be applied to
portions of the testimony corroborated by other evidence, particularly where
the false portions could be innocent mistakes. Moreover, the rule is not
mandatory but merely sanctions a disregard of the testimony of a witness if the
circumstances so warrant. To completely disregard all the testimony of a
witness on this ground, his testimony must have been false as to a material
point, and the witness must have a conscious and deliberate intention to
falsify a material point.[51]
Furthermore,
it should be borne in mind that even the most candid witness oftentimes makes
mistakes and confused statements. Instead of eroding the effectiveness of the
evidence, such imperfections and discrepancies in the testimony can in fact be
considered as signs of veracity.[52] Aside
from the fact that it is very difficult to give a mechanical and accurate
account of a traumatic and horrifying experience,[53] the
victim here was a mere five-year old girl when she was put on the witness
stand. We should not expect a five-year old child to explain with exact
precision the nature of the acts done to her, given her naiveté and still
undeveloped vocabulary and command of language.[54] Despite
this limitation, however, the victim never wavered in her claim that petitioner
molested her.
WHEREFORE, the petition is hereby DENIED. The September 29, 2000 decision of the Court
of Appeals affirming the decision of the Regional Trial Court of Valenzuela,
Branch 171, in Criminal Case No. 5302-V-96 finding petitioner guilty beyond
reasonable doubt of acts of lasciviousness and sentencing him to suffer
imprisonment of twelve years and one day of reclusion temporal, as
minimum, to sixteen years of reclusion temporal, as maximum, as well as to
pay P20,000 moral damages and P10,000 fine is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Associate Justice
WE CONCUR:
Chief Justice
Chairperson
ANGELINA
SANDOVAL-GUTIERREZ
Associate Justice
|
ADOLFO S. AZCUNA
Associate Justice
|
CANCIO C. GARCIA
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the above decision had been
reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO S. PUNO
[1] Under Rule 45 of the Rules of Court.
[2] Penned by Associate Justice Ramon Mabutas, Jr. (now retired) and concurred in by Associate Justices Roberto A. Barrios and Andres B. Reyes of the Special Eighth Division of the Court of Appeals; rollo, pp. 141-168.
[3] Id., p. 169.
[4] Now, Valenzuela City.
[5] Penned by Presiding Judge Adriano R. Osorio; id., pp. 183-203.
[6] “The Court shall withhold the real name of victim-survivor and shall use fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well [as] those of their immediate family or household members, shall not be disclosed.” (People v. Cabalquinto, G.R. No. 167693, 19 September 2006.)
[7] Id., p. 204.
[8] In XXX Subdivision, Marulas, Valenzuela; id., pp. 184, 186, 199.
[9] Id., p. 184.
[10] Id., p. 186.
[11] The words used were “tingting na may bulak;” id., p. 209.
[12] Id. The RTC also found that petitioner put his penis in the complainant’s mouth (id., p. 203). But this was not discussed in the CA decision.
[13] Id., p. 165.
[14] BBB described the actors in the movie as “naghuhubad;” TSN, May 29, 1996, p. 16.
[15] Rollo, p. 200.
[16] Id., p. 184.
[17] Id., p. 201.
[18] Id., pp. 194-195, 199.
[19] Id., p. 203. Sec. 31 of RA 7610 states:
xxx xxx xxx
(f) A fine to be determined by the court shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense.
We have imposed a similar fine in Amployo v. People, G.R. No. 157718, 26 April 2005, 457 SCRA 282, 299-300.
[20] Article III, Section 14 (2).
[21] Parungao v. Sandiganbayan, G.R. No. 96025, 15 May 1991, 197 SCRA 173, 178.
[22] Id.
[23] People v. Lazaro, 319 Phil. 352, 363 (1995).
[24] Amployo v. People, G.R. No. 157718, 26 April 2005, 457 SCRA 282, 298, citing People v. Mariño, G.R. No. 132550, 19 February 2001, 352 SCRA 127, 147; People v. Castillo, G.R. No. 131200, 15 February 2002, 377 SCRA 99, 114; People v. Esperanza, G.R. Nos. 139217-24, 27 June 2003, 405 SCRA 175, 189.
[25] G.R. No. 149199, 28 January 2003, 396 SCRA 506.
[26] Id., p. 515.
[27] Supra note 24.
[28] Id., p. 291.
[29] Id., pp. 291-292.
[30] People v. Bon, supra note 25, at 511, citing People v. Barrias, 412 Phil. 578, 585 (2001).
[31] TSN, May 8, 1996, pp. 5-13.
[32] Rollo, p. 201.
[33] Id., pp. 165, 203.
[34] Under Sec. 266-A, paragraph 2 of RA 8353 or “The Anti-Rape Law of 1997” which took effect on October 22, 1997, the insertion of any instrument or object into the genitals of another person constitutes rape through sexual assault; People v. Soriano, G.R. Nos. 142779-95, 436 Phil. 719 (2002). This law, however, finds no application here considering that the acts were committed on October 30, 1995; People v. Bon, supra note 25, at 514.
[35] People v. Jalosjos, 421 Phil. 43,90 (2001), citing People v. Optana, G.R. No. 133922,12 February 2001, 351 SCRA 485, 514-515, in turn citing People v. Larin, G.R. No. 128777, 7 October 1998, 297 SCRA 309, 318.
[36] On the Reporting and Investigation of Child Abuse Cases (adopted on October 11, 1993).
[37] Rollo, p. 291.
[38] People v. Optana, supra note 35; Olivarez v. Court of Appeals, G.R. No. 163866, 29 July 2005, 465 SCRA 465, 475-476.
[39] People v. Larin, supra note 35, at 319.
[40] Olivarez v. Court of Appeals, supra note 38, at 475.
[41] Rollo, p. 165.
[42] Both lower courts also refused to give weight to petitioner’s attempts to impute ill-motive against the victim’s mother. This imputation deserves scant consideration.
[43] People v. Bon, supra note 25, at 515.
[44] People v. Cachapero, G.R. No. 153008, 20 May 2004, 428 SCRA 744, 753, citations omitted.
[45] Id.
[46] People v. Balgos, 380 Phil. 343, 351 (2000), citations omitted.
[47] Id.
[48] People v. Espinosa, G.R. No. 138742, 15 June 2004, 432 SCRA 86, 100, citation omitted.
[49] Id.
[50] Rollo, pp. 167, 200.
[51] People v. Pacapac, G.R. No. 90623, 7 September 1995, 248 SCRA 77, 89, citations omitted.
[52] People v. Jalosjos, supra note 35, at 70, citation omitted.
[53] People v. Perez, 377 Phil. 656, 676 (1999), citations omitted.
[54] See People v. Sambrano, 446 Phil. 145, 156 (2003).