THIRD DIVISION
|
PEOPLE OF THE Appellee, - versus - MANUEL
BRIOSO y TANDA, Appellant. |
G.R.
No. 182517
Present: YNARES-SANTIAGO, J.,
Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and PERALTA, JJ. Promulgated: March 13,
2009 |
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
This is an appeal from the November 16, 2007 Decision[1]
of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02556 which affirmed with
modifications the decision of the Regional Trial Court (RTC), Branch 57, Libmanan,
Camarines Sur.
In three separate Informations, the prosecution
charged appellant Manuel Brioso, 53 years old, with raping the 13-year-old daughter of his
common-law wife. The cases were docketed as Criminal Case Nos. L-3844, L-3845,
and L-3846.
Appellant pleaded not guilty to the three charges. During
pre-trial, appellant admitted that he is the common-law husband of the victim’s
mother.
The victim narrated that, sometime in
February 2003, at about 2:30 a.m., appellant arrived home from fishing. At that time, the victim and her younger
siblings were at the upper level of their house, while their mother was working
in Lucena. Appellant suddenly dragged the
victim to the lower portion of their house where he forced her to lie
down. He then removed her shorts and
panty. She cried because she could do nothing. Afterwards, appellant also
undressed himself and tried to insert his penis into her vagina but he did not
succeed. She felt his penis touch her
vagina and she felt pain because he was forcing his penis into her vagina.
After around five minutes, appellant ceased trying and threatened to kill her
siblings if she told anyone about the incident. After that, appellant and the
victim dressed up and went upstairs.[2]
The
victim recounted that the sexual abuse was repeated a week later (same month)
also during the early morning. At that time, the victim’s younger siblings were
at the house while their mother was still in Lucena. This time, appellant
inserted his penis into her vagina. After dismounting from her, appellant let
her go upstairs. Appellant woke up her siblings and told them to segregate his
fish catch from the shrimps. He again threatened to kill her and her siblings.[3]
On
December 5, 2003, around 5:30 in the morning, appellant dragged the victim to
the lower level of their house and onto the bed. He then caused her to remove her short pants
and panty; afterwards, the former also undressed himself by removing his short
pants and brief. Appellant placed
himself on top of her while she was lying down on the bed. He then inserted his penis into her vagina.
She felt pain. The sexual abuse lasted for a while only, after which, appellant
prepared his things to fish. Before leaving, appellant again threatened to kill
her and her siblings.[4]
Feeling severely tormented, the
victim told her mother about the incident when she arrived home that morning
from the fishing port. Her mother was
very angry when she learned about the rape incidents.[5]
The victim further testified that appellant raped her so many times but she
could only remember these three incidents. She cried several times in the
course of her testimony. She also positively identified appellant in open
court.[6]
The victim was brought to the
– Old lacerated wound at one o’clock, three o’clock, seven o’clock, and nine o’clock
– Fresh contusion (L) labia minora, level four o’clock
– Fresh abrasion (R) labia majora level nine o’clock
– Admits 1 finger
– Presence of seminal fluid
The physician who conducted the
medical examination having retired, Dr. Emma Rariza-Rana, a physician and
officer-in-charge of the same hospital, testified on said findings.
The defense presented appellant as
its sole witness. As to the first two charges of rape, appellant raised the
defense of alibi. He claimed that he would usually go out to fish at 10:00 p.m.
and return at about 4:00 a.m. and that there was never an instance that he did
not go out to fish, as it was their source of livelihood. He added that the
victim told him that it was a certain Richard, adopted child of the victim’s
mother, who raped her. He allegedly mauled Richard in her defense, and then he
told the victim’s mother about the rape, but the latter did not file any
complaint against Richard.[7]
As to the third charge of rape,
appellant admitted that he had sexual intercourse with the victim but claimed
that it was consensual. Appellant disclosed that he and the victim were
sweethearts and were sexually active since August 20, 2003.[8]
On August 2, 2006, the RTC rendered
judgment finding appellant guilty beyond reasonable doubt of attempted rape in Criminal Case No. L-3844 and simple
rape in Criminal Cases Nos. L-3845 and L-3846, thus:
WHEREFORE,
the prosecution having proved the guilt of [appellant] beyond reasonable
[doubt] of the crime of attempted rape in Criminal Case No. L-3844, he is
hereby sentenced to suffer the indeterminate penalty of imprisonment of 3 years
of prision correccional in its medium
period as minimum to 9 years and 1 day of prision
mayor as maximum; [appellant] is also ordered to pay [the] victim, the
amount of P25,000.00 as moral damages and P30,000.00 as civil
indemnity.
The
prosecution also having proved the guilt of the accused beyond reasonable doubt
in Criminal Case Nos. L-3845 & L-3846, he is hereby CONVICTED of the crime
of RAPE, and in accordance with Republic Act No. 9346, which abolished the death
penalty, this court hereby imposes upon him x x x the penalty of reclusion perpetua in each case, and
further accused is also ordered to pay the victim the amount of P50,000.00
as moral damages and another P50,000.00 as civil indemnity in each case.
SO ORDERED.[9]
The RTC gave credence to the victim’s
testimony which was considered to be “clear, forthright, direct, detailed and
unwavering, despite the close scrutiny of the defense.” The trial court opined
that this testimony, as corroborated by the report of the medico-legal officer,
was sufficient to erase any reasonable doubt as to the culpability of the
accused.[10]
The RTC held that appellant’s defense
of alibi cannot prevail over the positive and credible declaration by the prosecution
witnesses about the incident. It also dismissed appellant’s claim that he and
the victim were sweethearts. The trial court did not believe that the victim,
who was only 13 years old, would consent to have sexual intercourse with
appellant, her 53-year old stepfather, and to live with him as husband and
wife.[11]
However, the RTC found no adequate
evidence to sustain a finding of consummated rape in Criminal Case No. L-3844,
only attempted rape. In this regard, the trial court noted the victim’s testimony
that appellant did not succeed in inserting his penis inside her vagina and
that the medico-legal examination did not clearly establish that the hymenal
lacerations were the result thereof.[12]
On
appeal, the CA disagreed with the trial court’s conclusion that only attempted
rape was proven in Criminal Case No. L-3844 and that appellant is guilty of
simple rape in Criminal Cases Nos. L-3845 and L-3846. On the contrary, the
appellate court found appellant guilty beyond reasonable doubt of three counts
of qualified rape.
The
CA essentially concurred with the findings of the trial court that the victim
had been sexually abused. However, relying on the victim’s testimony that
appellant’s penis touched her vagina and that she felt pain, the CA held that
the first incident of sexual abuse, subject of Criminal Case No. L-3844,
warranted a conviction for consummated rape. Moreover, the CA held that
appellant should be held guilty of three counts of qualified rape considering
that the three Informations uniformly alleged that the accused, who is the
“live-in partner/common law spouse of complainant’s mother,” had carnal
knowledge of a 13-year old and these circumstances were adequately established
by the prosecution during the trial. The dispositive portion of the CA Decision
dated November 16, 2007 states:
WHEREFORE, the appealed decision is AFFIRMED with modifications as follows:
1) finding accused-appellant Manuel Brioso y Tanda guilty of qualified rape in Criminal Case No. L-3844 and, accordingly, sentencing him to suffer the penalty of reclusion perpetua; and
2) ordering him to pay private complainant, for each count of rape, the following:
(a)
civil indemnity in the amount of P75,000.00;
(b)
moral damages in the amount of P75,000.00;
and
(c)
exemplary damages in the amount of P25,000.00.
SO ORDERED.[13]
On December 5, 2007, appellant filed
a Notice of Appeal.[14]
The CA gave due course to the appeal and directed the elevation of the records
to this Court.[15]
In his Supplemental Brief, appellant
argues that the CA erred in convicting him of consummated rape in Criminal Case
No. L-3844. He emphasizes that although the victim testified that his penis
touched her vagina and she felt pain, this testimony is not sufficient proof of
carnal knowledge. It was not convincingly shown that the part allegedly touched
was the labia majora or that the
cause of the pain was the introduction of the male organ into the labia.
The appeal is partly meritorious.
We fully agree with the findings of
the trial court, as affirmed by the appellate court, that the victim has been
sexually abused on three occasions. The trial court and the CA were correct in
giving credence to the victim’s testimony, in dismissing appellant’s defense of
alibi, and disbelieving his allegations that he and the victim were sweethearts
and that the victim’s mother concocted the accusation.
Nonetheless, we find that the
appellate court erred in finding that the prosecution was able to prove beyond
reasonable doubt that appellant had carnal knowledge of the victim during the first
alleged incident of sexual abuse so as to justify a conviction for consummated
rape.
For the accused to be held guilty of
consummated rape, the prosecution must prove beyond reasonable doubt that: (1)
there has been carnal knowledge of the victim by the accused; (2) the accused
achieved the act through force or intimidation upon the victim because the
latter was deprived of reason or otherwise unconscious.[16] Considering
that carnal knowledge is the central element in the crime of rape, it must be
proven beyond reasonable doubt.[17] Carnal
knowledge of the victim by the accused may be proved either by direct evidence
or by circumstantial evidence that rape has been committed and that the accused
was the perpetrator thereof.[18]
A finding that the accused is guilty
of rape may be based solely on the victim’s testimony if such testimony meets
the test of credibility.[19] This
Court has ruled that when a woman states that she has been raped, she says in
effect all that would be necessary to show that rape did take place. However, the testimony of the victim must be
scrutinized with extreme caution.[20]
The victim’s account of the first
alleged rape incident states as follows:
Q: You said you were dragged by your stepfather to that bed. When you were dragged to the bed, what happened next?
A: He forced me to lie down and he removed my shorts and panty.
Q: While doing this, what if anything did you do?
A: I cried because I could do nothing.
Q: When he removed your garments and you were made to lie on the bed, what happened next?
A: He also undressed himself and tried to insert his penis to my vagina, but it did not succeed.
Q: Now, on what part of your body did you feel that his penis touched?
A My vagina.
Q: So, what happened after that?
A: He dressed up and I also dressed up and went up stairs.
Q: So, how long therefore, was he on top of you?
A: Around five (5) minutes.
Q: While on top of you on that duration as you approximated it, what if anything did you feel?
A: Painful.
Q: Which is painful?
A: My vagina.
Q: Why is it painful?
A: Because he was trying to insert his penis to my vagina.[21]
Noticeably, the victim categorically
denied that appellant’s penis penetrated her vagina. In fact, during
cross-examination, the victim was asked twice whether the accused was able to
insert his penis into her vagina and in both instances, she replied in the
negative.[22]
Significantly, the victim testified
that appellant’s penis merely touched
her vagina and she felt pain because
of his attempt to insert his penis into her vagina. The question, therefore,
that begs to be answered is whether such testimony suffices to prove that there
was even a slight penetration of the labia.
In a number of cases, we have held
that the mere touching of the external genitalia by the penis, capable of
consummating the sexual act, is sufficient to constitute carnal knowledge.[23]
However, in People v. Campuhan,[24]
the Court clarified that the act of touching should be understood as inherently
part of the entry of the penis into the labia of the female organ and not mere
touching alone of the mons pubis or
the pudendum. In other words, to constitute consummated rape, the touching must
be made in the context of the presence or existence of an erect penis capable
of penetration. There must be sufficient and convincing proof that the penis
indeed touched the labia or slid into the female organ, and not merely stroked
the external surface thereof, for an accused to be convicted of consummated
rape.[25]
Absent any showing of the slightest
penetration of the labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of
lasciviousness.[26] Aside
from the victim’s testimony, there was no other evidence that could confirm
whether there was penetration of the labia. As noted by the trial court, the
medical examination report was of no use in relation to the first alleged rape
incident as the examination was conducted only after the third incident which
happened several months later.
A review of the Court’s decisions
dealing with relatively the same amount of evidence as in this case reveals
that, in the absence of any evidence showing that there was even a slight
penetration of the vagina, the Court was loath to convict an accused for rape
solely on the basis of the pain experienced by the victim as a result of
efforts to insert the penis into the vagina.[27]
For instance, in People v. Quarre,[28]
the evidence for the prosecution consisted only of the testimony of victim that
the accused tried, but failed, to insert his penis into her vagina and she felt
pain in the process. No medico-legal examination report was presented in
evidence. The Court, therefore, convicted the accused of attempted rape only.
The Court brushed aside the prosecution’s contention that the statement of pain
alone proves that the penis of the accused touched the labia, ratiocinating
that -
Clearly, it is carnal knowledge, not pain, that is the element to consummate rape. While pain may be deduced from the sexual act whatever worth this inference may have, we certainly cannot convict for rape by presuming carnal knowledge out of pain. It is truly a dangerous proposition to equate the victim's testimony of pain with proof of carnal knowledge. The peril lies in the absolute facility of manufacturing testimonies asserting pain. Pain is subjective and so easy to feign. Our jurisprudence dictates positive proof of even the slightest penetration, more accurately, the touching of the labias by the penis, before rape could be deemed consummated.[29]
Then again in People v. Miranda,[30]
the Court convicted the accused only of attempted rape due to lack of evidence
to establish that there was even a slight penile penetration. The victim
testified that the accused tried to insert his penis into her private parts;
when he did not succeed, he inserted his finger instead; and she felt pain. The
medical examination report also did not establish that there was even a slight
penile penetration, as it merely found that the abrasions on her vulva were
caused only by the fingers.
The Court recently issued a similar
ruling in People v. Bon,[31]
wherein the prosecution’s evidence consisted of the victim’s testimony that the
accused repeatedly tried to insert his penis into her vagina and that she felt
pain in the process. In that case, the Court affirmed appellant’s conviction
for attempted rape only, ratiocinating that the accused could not be convicted
of rape by presuming carnal knowledge out of pain.[32]
In some cases, this Court
held that even where penetration is not fully established, consummated rape can
still be anchored on the victim’s testimony that she felt
pain in the attempt at penetration.[33]
In such cases, however, there were at least some other details in the victim’s
testimony, or other pieces of evidence, that helped convince the Court that
there was likely a penetration of the labia of the pudendum.
In People v. Torres,[34]
other than the victim’s testimony that she felt pain when the accused tried to
insert his penis into her vagina, the National Bureau of Investigation medico-legal
officer noted that, while there was no hymenal laceration, there were two
contusions on the victim’s vagina. The medico-legal office concluded that it
was possible that a “mere partial or an incomplete hymenal penetration resulted
in the sexual assault.” Despite the victim’s testimony that there was no
penetration, the Court, therefore, held that the rape was consummated.
Also in People v. Orande,[35]
the case cited by the CA, the finding of consummated rape was not solely based
on the victim’s testimony that she
experienced pain. In that case, the victim specifically averred that appellant
was able to slightly penetrate her because she felt pain and her vagina bled.
Earlier in People v. Ombreso,[36] the Court debated on whether to convict
the accused of attempted or consummated rape. In the end, majority voted for
his conviction of consummated rape while two members of the Court dissented.
The Court stated that considering the pain caused, there could be no doubt that
there was at least partial entry. Hence, while the medical examination of the
victim showed that she did not suffer hymenal laceration or abrasion, the Court,
nonetheless, concluded that there was a slight penetration of the victim’s
genitalia. In this case, the victim did not only state that appellant’s penis
touched her vagina, but she was made to demonstrate which part of her vagina it
touched and she pointed to the upper part of her vaginal opening. Moreover, the
victim testified that appellant’s penis was “hard” while it was touching her
vagina.
The victim’s testimony as to the
first incident is sorely lacking in details.
In People v. Tolentino,[37] the Court criticized the prosecution
for its failure to extract important details from the victim, which prevented a
conviction for consummated rape, thus:
The
prosecution did not ask her the appropriate questions to get some more
important details that would demonstrate beyond any shadow of doubt that TOLENTINO’s penis reached the labia of the pudendum or the lips
of RACHELLE's vagina. It should have, for instance, asked whether
TOLENTINO’s penis was firm and erect or whether RACHELLE's legs were spread
apart to bring us to the logical conclusion that, indeed, TOLENTINO’s penis was
not flabby and had the capacity to directly hit the labia of the pudendum or
the lips of RACHELLE's vagina. There is paucity of evidence that the
slightest penetration ever took place. Consequently, TOLENTINO can only
be liable for attempted rape.[38]
In the present case, no
other evidence from which we could reasonably conclude that there was even a
slight penetration of the vagina, and not just a mere touching, was presented
in evidence. We reiterate that penile penetration cannot be presumed from pain
alone. The prosecution must present some other piece of evidence from which the
Court could reasonably deduce that there was indeed carnal knowledge by the
accused of the victim, be it positive testimony that there was slight
penetration of the vagina, or testimony that the penis was erect at the time
that it was touching the vagina, or that her vagina bled due to the attempt to
insert the penis, or that there were abrasions or contusions on the labia of
the vagina.
Since there was no
showing that appellant succeeded in having carnal knowledge of the victim,
appellant can only be convicted of attempted rape. There is only an attempt to commit
rape when the offender commences its
commission directly by overt acts but does not perform all acts of execution
which should produce the felony by reason of some cause or accident other than
his own spontaneous desistance.[39]
The appellate court properly
appreciated the twin aggravating circumstances of minority and
relationship. The victim’s minority and her
relationship with appellant were alleged in the Informations
and sufficiently established during trial. The victim’s birth certificate was
presented in evidence to show that she was born on October 15, 1990, which
means that she was actually only 12 years old when she was first sexually
assaulted. Appellant, during pre-trial, admitted that he is the common-law
husband of the victim’s mother.
With the abolition of the death
penalty by Republic Act No. 9346, the penalty for qualified rape is reclusion
perpetua. Pursuant to People v. Bon,[40]
the penalty for attempted rape should also be reckoned from reclusion perpetua. In the scale of
penalties in Article 71 of the Revised Penal Code, the penalty two degrees
lower than reclusion perpetua is prision
mayor. Applying the Indeterminate Sentence Law, absent any modifying
circumstance, the maximum term of the indeterminate penalty shall be taken from
the medium period of prision mayor or from 8 years and 1 day to 10 years,
while the minimum term is one degree lower than prision mayor, i.e., prision correccional, from
6 months and 1 day to 6 years.
The appellate court correctly awarded
civil indemnity of P75,000.00, moral damages of P75,000.00 and
exemplary damages of P25,000.00.[41]
For the attempted rape, appellant should also pay the victim P30,000.00
as civil indemnity, P25,000.00 as moral damages and P10,000.00 as
exemplary damages pursuant to prevailing jurisprudence.[42]
WHEREFORE, the
Court of Appeals Decision dated November 16, 2007 is AFFIRMED WITH MODIFICATIONS. Appellant Manuel Brioso y Tanda is
found guilty of:
1.
ATTEMPTED QUALIFIED
RAPE in
Criminal Case No. L-3844 and sentenced to an indeterminate penalty of two (2)
years, four (4) months and one (1) day of prision correccional as
minimum, to eight (8) years and one (1) day of prision mayor as maximum.
In addition, appellant is ORDERED to
indemnify the victim in the amounts of P30,000.00 as civil indemnity, P25,000.00
as moral damages and P10,000.00 as exemplary damages;
2.
Two counts of QUALIFIED
RAPE in Criminal Cases Nos. L-3845 and L-3846 and sentenced to suffer the
penalty of reclusion perpetua for
each count. For each count of rape, appellant is likewise ORDERED to indemnify the victim —
a.
civil
indemnity in the amount of P75,000.00;
b.
moral
damages in the amount of P75,000.00; and
c.
exemplary
damages in the amount of P25,000.00.
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MA. ALICIA
AUSTRIA-MARTINEZ Associate Justice |
MINITA V. CHICO-NAZARIO Associate Justice |
DIOSDADO M.
PERALTA
Associate Justice
A T T E S T A T I O N
I attest that the
conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
CONSUELO
YNARES-SANTIAGO
Associate
Justice
Chairperson,
Third Division
C E R T I F I C A T I O
N
Pursuant to Section 13, Article
VIII of the Constitution and the Division Chairperson's Attestation, 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.
LEONARDO
A. QUISUMBING
Acting Chief
Justice
[1] Penned by Associate Justice Rebecca de Guia-Salvador, with Associate Justices Magdangal M. de Leon and Ricardo R. Rosario, concurring; rollo, pp. 2-27.
[2] CA rollo, p. 16.
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13] Rollo, p. 26.
[14] CA
rollo, p. 118.
[15]
[16] People
v. Sumarago, 466 Phil. 956, 966 (2004).
[17] People
v. Sinoro, G.R. Nos. 138650-58, April 22, 2003, 401 SCRA 371, 390.
[18] People
v. Sumarago, supra note 16, at 966.
[19]
[20]
[21] TSN, April 21, 2005, pp. 11-12.
[22] TSN, August 15, 2005, pp. 7, 8.
[23]
People v. Lomerio, 383 Phil. 434 (2000); People
v. Lerio, 381 Phil. 80 (2000); People v. Quiñanola, 366 Phil. 390 (1999).
[24] 385 Phil. 912 (2000).
[25]
[26]
[27] But see People v. Makilang, 420 Phil. 188 (2001), wherein the Court convicted the accused of consummated rape even if he did not succeed in inserting his penis into the vagina solely on the basis of the victim’s repeated assertion that she felt pain in her vagina when the accused tried to insert his penis into her vagina.
[28] 427 Phil. 422 (2002).
[29]
[30] G.R. No. 169078, March 10, 2006, 484 SCRA 555.
[31] G.R. No. 166401, October 30, 2006, 506 SCRA 168.
[32] See also People v. Sumarago, supra note 16, wherein the Court pronounced that carnal knowledge cannot be presumed simply because the victim felt pain in her vagina after she regained consciousness.
[33] People v. Torres, 469 Phil. 602, 610-611 (2004); People v. Orande, 461 Phil. 403 (2003); People v. Ombreso, 423 Phil. 966 (2001).
[34] Supra.
[35] Supra note 33.
[36]
[37] 367 Phil. 755 (1999).
[38]
[39] People v. Bon, supra note 31, at 188-189.
[40] Supra note 31.
[41] People v. Capwa, G.R. No. 174058, December 27, 2007, 541 SCRA 516; People v. Bon, supra note 31.
[42] People v. Bon, supra note 31.