SECOND DIVISION [G.R. No. 138033, February 22, 2006] RENATO A!EROS, "R., #ETITIONER VS. #EO#!

E OF T$E #$I!I##INES, RES#ONDENT. DECISION GARCIA, ".% In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision [1] of the ourt of !ppeals " !# in CA-G.R. CR No. 17271 as reiterated in its $arch 31, 1999 resolution[%] denyin& petitioner's (otion for reconsideration. )he assailed decision affir(ed an earlier decision of the Re&ional )rial ourt "R) # of $anila, Branch %, in ri(inal ase *o. 91+1,1-.% findin& petitioner Renato Baleros, Jr. y /avid " 0I)1# &uilty of atte(pted rape. [3] )he accusatory portion of the infor(ation [.] dated /ece(2er 13, 1991 char&in& petitioner with atte(pted rape reads as follow4 )hat a2out 145, in the (ornin& or so(eti(e thereafter of 13 /ece(2er 1991 in $anila and within the 6urisdiction of this 0onora2le ourt, the a2ove+na(ed accused, 2y forcefully coverin& the face of $artina 7ourdes ). !l2ano with a piece of cloth soaked in che(ical with di88yin& effects, did then and there willfully, unlawfully and feloniously co((enced the co((ission of rape 2y lyin& on top of her with the intention to have carnal knowled&e with her 2ut was una2le to perfor( all the acts of e9ecution 2y reason of so(e cause or accident other than his own spontaneous desistance, said acts 2ein& co((itted a&ainst her will and consent to her da(a&e and pre6udice. :pon arrai&n(ent on ;e2ruary 5, 199%, petitioner, assisted 2y counsel, pleaded <*ot =uilty.<[5] )hereafter, trial on the (erits ensued. )o prove its case, the prosecution presented thirteen "13# witnesses. !(on& the( were private co(plainant $artina 7ourdes !l2ano "$alou#, and her class(ates, Joseph Bernard !frica, Ro((el $ontes, Renato !la&adan and hristian !lcala. )heir testi(onies, as narrated in so(e detail in the decision of the !, esta2lished the followin& facts4 7ike (ost of the tenants of the elestial $arie Buildin& "hereafter <Buildin&<, ...# alon& !.0. 7acson >treet, >a(paloc, $anila, $!71:, occupyin& Roo( 3,3 with her (aid, $arvilou Be2ania "$arvilou#, was a (edical student of the :niversity of >to. )o(as [:>)] in 1991. In the evenin& of /ece(2er 1%, inside :nit 3,3, $!71: retired at around 1,43,. 1utside, ri&ht in front of her 2edroo( door, her (aid, $arvilou, slept on a foldin& 2ed. ?arly (ornin& of the followin& day, $!71: was awakened 2y the s(ell of che(ical on a piece of cloth pressed on her face. >he stru&&led 2ut could not (ove. >o(e2ody was pinnin& her down on the 2ed, holdin& her ti&htly. >he wanted to screa( for help 2ut the hands coverin& her (outh with cloth wet with che(icals were

very ti&ht ")>*, July 5, 1993, p. 33#. >till, $!71: continued fi&htin& off her attacker 2y kickin& hi( until at last her ri&ht hand &ot free. @ith this ...the opportunity presented itself when she was a2le to &ra2 hold of his se9 or&an which she then sAuee8ed. )he (an let her &o and $!71: went strai&ht to the 2edroo( door and roused $arvilou. 999. 1ver the interco(, $!71: told >B= ;erolin that4 <(ay pu(asok sa kuarto ko pina&tan&kaan ako< (Ibid., p. C#. @ho it was she did not, however, know. )he only thin& she had (ade out durin& their stru&&le was the feel of her attacker's clothes and wei&ht. 0is upper &ar(ent was of cotton (aterial while that at the lower portion felt s(ooth and satin+like "Ibid, p. 13#. 0e ... was wearin& a t+shirt and shorts ... 1ri&inal Records, p. 355#. )o Roo( 31, of the Buildin& where her class(ates hristian !lcala, Bernard Baptista, 7ut&ardo !costa and Ro((el $ontes were stayin&, $!71: then proceeded to seek help. 999. It was then when $!71: saw her 2ed ... topsy+turvy. 0er ni&htdress was stained with 2lue ... ")>*, July 5, 1993, pp. 13+1.#. !side fro( the window with &rills which she had ori&inally left opened, another window inside her 2edroo( was now open. 0er attacker had fled fro( her roo( &oin& throu&h the left 2edroo( window (Ibid, !nswers to Duestion nu(2er 5E Id#, the one without iron &rills which leads to Roo( 3,- of the Buildin& ")>*, July 5, 1993, p.-#. 999 999 999 ;urther, $!71: testified that her relation with 0I)1, who was her class(ate ..., was friendly until a week prior to the attack. 0I)1 confided his feelin&s for her, tellin& her4 <=usto kita, (ahal kita< ")>*, July 5, 1993, p. %%# and she re6ected hi(. .... ")>*, July 5, 1993, p. %%#. $eanwhile, accordin& to >B= ;erolin, while he was on duty, 0I)1 arrived at the Buildin& at 143, in the early (ornin& of /ece(2er 13, 1991, wearin& a white t+shirt with <'...a (arkin& on the front of the )+shirt ) $ and a =reek letter "sic# FG' and 2elow the Auoted letters the word '19.-' ':>) $edicine and >ur&ery'< ")>*, 1cto2er 9, 199%, p. 9# and 2lack shorts with the 2rand na(e <!didas< ")>*, 1cto2er 1-, 199%, p.3# and reAuested per(ission to &o up to Roo( 3,-. )his :nit was 2ein& leased 2y !ns2ert o and at that ti(e when 0I)1 was askin& per(ission to enter, only Joseph Bernard !frica was in the roo(. 0e asked 0I)1 to produce the reAuired written authori8ation and when 0I)1 could not, >B= ;erolin initially refused [2ut later, relented] .... >B= ;erolin (ade the followin& entry in the security &uard's lo&2ook ...4 <,13,0Baleros Renato Jr. is a visitor of !ns2ert o who has not have "sic# a ReAuest letter fro( our tenant of :nit H+3,- !ns2ert, 2ut still I let hi( inter "sic# for the reason that he will 2e our tenant this co(in& su((er 2reak as he said so I let hi( si&n it here ">&d.# Baleros Renato Jr.< "?9hi2it <!+%<# )hat 0I)1 arrived at Roo( 3,- at 143, !.$. of /ece(2er 13, 1991 was corro2orated 2y Joseph Bernard !frica "Joseph#, ....

999 999 999 Joseph was already inside Roo( 3,- at 9 o'clock in the evenin& of /ece(2er 1%, 1991. 999 2y the ti(e 0I)1's knockin& on the door woke hi( up, .... 0e was a2le to fi9 the ti(e of 0I)1's arrival at 143, !.$. 2ecause he &lanced at the alar( clock 2eside the 2ed when he was awakened 2y the knock at the door.... Joseph noticed that 0I)1 was wearin& dark+colored shorts and white )+shirt " Ibid., p. %3# when he let the latter in. .... It was at around 3 o'clock in the (ornin& of /ece(2er 13, 1991 when he woke up a&ain later to the sound of knockin& at the door, this ti(e, 2y Bernard Baptista "Bernard#, .... 999. @ith Bernard, Joseph then went to $!71:'s roo( and thereat was shown 2y Bernard the open window throu&h which the intruder supposedly passed. 999 999 999 7ater, at a2out - to -43, in the (ornin& of /ece(2er 13, 1991, Joseph was finally a2le to talk to 0I)1 .... 0e (entioned to the latter that so(ethin& had happened and that they were not 2ein& allowed to &et out of the 2uildin&. Joseph also told 0I)1 to follow hi( to Roo( 31,. 0I)1 did 6ust that. 0e followed after Joseph to :nit 31,, carryin& his &ray 2a&. 999. *one was in Roo( 31, so Joseph went to their yet another class(ate, Renato !la&adan at Roo( .,1 to see if the others were there. 999. Ieople fro( the I> ca(e 2y 2efore C o'clock that sa(e (ornin& .... )hey likewise invited 0I)1 and Joseph to &o with the( to a(p ra(e where the two "%# were Auestioned .... !n occupant of Roo( 31, ... hristian !lcala " hristian# recalled in ourt that in the afternoon of /ece(2er 13, 1991, after their 343, class, he and his roo((ates, Bernard Baptista and 7ut&ardo !costa "=ary# were called to the Buildin& and were asked 2y the I> people to look for anythin& not 2elon&in& to the( in their :nit. @hile they were outside Roo( 31, talkin& with the authorities, Ro((el $ontes "7oyloy#, another roo((ate of his, went inside to search the :nit. 7oyloy found ")>*, January 1%, 1993, p. -# a &ray <Jhu(2ella< 2a& cloth type "I2id, pp. ..+.5# fro( inside their unit which they did not know was there and surrender the sa(e to the investi&ators. @hen he saw the &ray 2a&, hristian knew ri&ht away that it 2elon&ed to 0I)1 " Ibid, p. 55# as he had seen the latter usually 2rin&in& it to school inside the classroo( "Ibid, p. .5#. In their presence, the I> opened the 2a& and pulled out its contents, a(on& others, a white t+shirt with a )aunu "sic# >i&(a Ihi si&n " Ibid, p. 3#, a Black !didas short pants, a handkerchief , three "3# white )+shirts, an underwear, and socks "Ibid). hristian reco&ni8ed the t+shirt "?9hi2it </+.<#, the !didas short pants "?9hi2it </+5<#, and the handkerchief "?9hi2it </+3# to 2e 0I)1's 2ecause 0I)1 had lent the very sa(e one to hi( .... )he t+shirt with 0I)1's fraternity sy(2ol, 0I)1 used to wear on weekends, and the handkerchief he saw 0I)1 used at least once in /ece(2er.

)hat 0I)1 left his 2a& inside Roo( 31, in the (ornin& of /ece(2er 13, 1991, was what consisted (ainly of Renato R. !la&adan's testi(ony. 999 999 999. )he colored &ray 2a& had a handle and a strap, was elon&ated to a2out 11B. feet and appeared to 2e full 2ut was closed with a 8ipper when Renato saw it then "I2id, pp. 19+%,#. !t that ti(e hristian, =ary, Bernard, and Renato went 2ack to Roo( 31, at around 3 to . o'clock that afternoon alon& with so(e I> a&ents, they saw the 2a& at the sa(e place inside the 2edroo( where Renato had seen 0I)1 leave it. *ot until later that ni&ht at past 9 o'clock in a(p ra(e, however, did Renato know what the contents of the 2a& were. 999 999 999. )he forensic he(ist, 7eslie ha(2ers, of the Ihilippine *ational Iolice ri(e 7a2oratory in a(p ra(e, havin& acted in response to the written reAuest of I*I >uperintendent 7ucas $. $ana&uelod dated /ece(2er 13, 1991, "?9hi2it < <E 1ri&inal Records, p. 1,9.# conducted la2oratory e9a(ination on the speci(en collated and su2(itted.... 0er he(istry Report *o. +.C3+91 "?9hi2it <?<E Ibid., p. 11%# reads in part, thus4 <>I? I$?* >:B$I))?/4 999 999 9994 1# 1ne "1# s(all white plastic 2a& (arked ':*I$!R)' with the followin&4 999 999 999 %# 1ne "1# s(all white plastic 2a& (arked 'J1*!>' with the followin&4 ?9h. '/' K 1ne "1# printed handkerchief. ?9h. '?' K 1ne "1# white )+shirt (arked ')$LI'. ?9h. ';' K 1ne "1# 2lack short "sic# (arked '!/I/!>'. I:RI1>? 1; 7!B1R!)1RM ?N!$I*!)I1*4 )o deter(ine the presence of volati(e "sic#, non+volatile andBor (etallic poison on the a2ove stated speci(ens. ;I*/I*=>4 )o9icolo&ical e9a(ination conducted on the a2ove stated speci(ens &ave the followin& results4 ?9hs. ' ' and '/' K I1>I)IO? to the test for chlorofor(, a volatile poison. ?9hs. '!', 'B', '?' and ';' are insufficient for further analysis.

1* 7:>I1*4 ?9hs. ' ' and '/' contain chlorofor(, a volatile poison.< [-] "@ords in 2racket added# ;or its part, the defense presented, as its (ain witness, the petitioner hi(self. 0e denied co((ittin& the cri(e i(puted to hi( or (akin& at any ti(e a(orous advances on $alou. :nfoldin& a different version of the incident, the defense sou&ht to esta2lish the followin&, as culled fro( the sa(e decision of the appellate court4 In /ece(2er of 1991, 0I)1 was a (edical student of ... ":>)#. @ith Ro2ert han and !l2erto 7eonardo, he was likewise a (e(2er of the )au >i&(a Ihi ;raternity .... $!71:, ..., was known to hi( 2ein& also a (edical student at the :>) at the ti(e. ;ro( Roo( 3,- of the elestial $arie Buildin& ..., 0I)1, wearin& the prescri2ed 2aron& ta&alo& over dark pants and leather shoes, arrived at their ;raternity house located at ... /os astillas, >a(paloc, $anila at a2out 3 o'clock in the evenin& of /ece(2er 1%, 1991. 0e was included in the entoura&e of so(e fifty "5,# fraternity (e(2ers scheduled for a hrist(as &atherin& at the house of their senior fraternity 2rother, /r. Jose /uran, at *o. 3 John >treet, *orth =reenhills, >an Juan. 999. )he party was conducted at the &arden 2eside [the] swi((in& pool .... >oon after, ... the four ".# presidential no(inees of the ;raternity, 0I)1 included, were 2ein& dunked one 2y one into the pool. 999. 999 0I)1 had anticipated his turn ... and was thus wearin& his t+shirt and lon& pants when he was dunked. Ierla /uran, ..., offered each ... dry clothes to chan&e into and 0I)1 put on the white t+shirt with the ;raternity's sy(2ol and a pair of 2lack shorts with stripes. 999 . !&ain ridin& on !l2erto's car and wearin& <2aron& ta&alo& over a white t+shirt with the sy(2ol )!: >i&(a Ihi, 2lack short pants with stripe, socks and shoes< ")>*, !pril %5, 199., p. 15#, 0I)1 left the party with Ro2ert han and !l2erto at (ore or less past 1 !.$. of /ece(2er 13, 1991 and proceeded to the Buildin& which they reached at a2out 143, !.$. "I2id., p. 19#. 0e had left his &ray travelin& 2a& containin& <white t+ shirt, sando, underwear, socks, and tooth2rush "I2id., pp. 13+1C# at roo( 3,- in the afternoon of the previous day .... !t the &ate of the Buildin&, 0I)1 knocked and ..., >B= ;erolin, lookin& at his watch, approached. Because of this, 0I)1 also looked at his own watch and saw that the ti(e was 143, "I2id., p. %-#. >B= ;erolin initially refused 0I)1 entry .... 999. >B= ;erolin called :nit 3,- .... 999. @hen >B= ;erolin finally let hi( in, already a2out ten "1,# (inutes had lapsed since 0I)1 first arrived "I2id., p. %5#. 0I)1 went up the floor, found the key left for hi( 2y Joseph 2ehind the opened 6alousie window and for five "5# (inutes vainly tried to open the door until Ro((el $ontes, ... approached hi( and even co((ented4 <1key an& suot (o ha, di (o (a2uksan an& pinto "I2id., pp. %-+%9#. Ro((el tried to open the door of :nit 3,- ... 2ut was likewise unsuccessful. 0I)1 then decided to 6ust call out to Joseph while knockin& at the door. It took another "5# (inutes of callin& out and knockin& 2efore Joseph, ..., at last

answered the door. )ellin& hi(, <Ikaw na an& 2ahala diyan< Joseph i((ediately turned his 2ack on 0I)1 and went inside the 2edroo(. 0I)1 , ...chan&ed to a thinner shirt and went to 2ed. 0e still had on the sa(e short pants &iven 2y Ierla /uran fro( the fraternity party ")>*, June 1-, 199., p. %,#. !t - o'clock in the (ornin& of /ece(2er 13, 1991, 0I)1 woke up .... 0e was already in his school unifor( when, around -43, !.$, Joseph ca(e to the roo( not yet dressed up. 0e asked the latter why this was so and, without ela2oratin& on it, Joseph told hi( that so(ethin& had happened and to 6ust &o to Roo( 31, which 0I)1 did. !t Roo( 31,, 0I)1 was told 2y Ro((el $ontes that so(e2ody, who( $!71: was not a2le to identify, went to the roo( of $!71: and tried to rape her ")>*, !pril %5, 199., p. 3-#. 999. Joseph told hi( that the security &uard was not lettin& any2ody out of the Buildin& .... @hen two "%# I> (en ca(e to the unit askin& for Renato Baleros, 0I)1 presented hi(self. on&ress(an Rodolfo B. !l2ano, father of $!71:, then asked hi( for the key to Roo( 3,-.... 999 999 999 )he I> (en looked inside the 2edroo( and on the windows. Joseph was told to dress up and the two "%# of the(, 0I)1 and Joseph, were 2rou&ht to a(p ra(e. @hen they arrived at a(p ra(e ..., ol. $ana&uelod asked Joseph inside his roo( and talked to hi( for 3, (inutes. 999. *o one interviewed 0I)1 to ask his side. 999 999 999 Both 0I)1 and Joseph were taken to Irosecutor !2esa(is who later instructed the( to under&o physical e9a(ination at the a(p ra(e 0ospital ..... !t the hospital, ... 0I)1 and Joseph were physically e9a(ined 2y a certain /r. de =u8(an who told the( to strip .... 999 999 999 0I)1 had left his &ray 2a& containin&, a(on& others, the 2lack striped short pants lent to hi( 2y Ierla /uran "?9hi2it <C+!<, 1ri&inal Records, p. 3.5#, inside Roo( 31, at (oreBless -43, to 3 o'clock in the (ornin& of /ece(2er 13, 1991. )he ne9t ti(e that he saw it was 2etween C to 9 I.$. when he and Joseph were 2rou&ht 2efore ;iscal !2esa(is for inAuest. 1ne of the I> a&ents had taken it there and it was not opened up in his presence 2ut the contents of the 2a& were already laid out on the ta2le of ;iscal !2esa(is who, however, (ade no effort to ask 0I)1 if the ite(s thereat were his. )he 2lack !didas short pants purportedly found in the 2a&, 0I)1 denied puttin& in his &ray 2a& which he had left at Roo( 3,- in the early evenin& of /ece(2er 1%, 1991 2efore &oin& to the fraternity house. 0e likewise disavowed placin& said 2lack !didas short pants in his &ray 2a& when he returned to the apart(ent at past 14,,

o'clock in the early (ornin& of /ece(2er 13, 1991 ")>*, June 1-, 199., p. %.#, nor when he dressed up at a2out - o'clock in the (ornin& to &o to school and 2rou&ht his &ray 2a& to Roo( 31, "Ibid. %5#. In fact, at any ti(e on /ece(2er 13, 1991, he was not aware that his &ray 2a& ever contained any 2lack short !didas pants "Ibid#. 0e only found out for the first ti(e that the 2lack !didas short pants was alluded to 2e a(on& the ite(s inside his &ray 2a& late in the afternoon, when he was in a(p ra(e. !lso takin& the witness stand for the defense were petitioner's fraternity 2rothers, !l2erto 7eonardo and Ro2ert han, who 2oth testified 2ein& with 0I)1 in the /ece(2er 1%, 1991 party held in /r. /uran's place at =reenhills, ridin& on the sa(e car &oin& to and co(in& fro( the party and droppin& the petitioner off the elestial $arie 2uildin& after the party. Both were one in sayin& that 0I)1 was wearin& a 2aron& ta&alo&, with t+shirt inside, with short pants and leather shoes at the ti(e they parted after the party.[3] Ro((el $ontes, a tenant of Roo( 31, of the said 2uildin&, also testified seein& 0I)1 2etween the hours of 143, and %4,, !.$. of /ece(2er 13, 1991 tryin& to open the door of Roo( 3,- while clad in dark short pants and white 2aron& ta&alo&. 1n the other hand, Ierla /uran confir(ed lendin& the petitioner the pair of short pants with stripes after the dunkin& party held in her father's house. [C] Iresented as defense e9pert witness was ar(elita Oar&as, a forensic che(istry instructor whose actual de(onstration in open court showed that chlorofor(, 2ein& volatile, evaporates in thirty "3,# seconds without tearin& nor stainin& the cloth on which it is applied. [9] 1n /ece(2er 1., 199., the trial court rendered its decision[1,] convictin& petitioner of atte(pted rape and accordin&ly sentencin& hi(, thus4 @0?R?;1R?, under cool reflection and prescindin& fro( the fore&oin&, the ourt finds the accused Renato /. Baleros, Jr., alias < hito<, &uilty 2eyond reasona2le dou2t of the cri(e of atte(pted rape as principal and as char&ed in the infor(ation and here2y sentences hi( to suffer an i(prison(ent ran&in& fro( ;1:R ".# M?!R>, )@1 "%# $1*)0> !*/ 1*? "1# /!M of Irision orrectional, as $ini(u( to )?* "1,# M?!R> of Irision $ayor as $a9i(u(, with all the accessory penalties provided 2y law, and for the accused to pay the offended party $artina 7ourdes ). !l2ano, the su( of I5,,,,,.,, 2y way of $oral and e9e(plary da(a&es, plus reasona2le !ttorney's fees of I3,,,,,.,,, without su2sidiary i(prison(ent in case of insolvency, and to pay the costs. >1 1R/?R?/. !&&rieved, petitioner went to the ! whereat his appellate recourse was docketed as CA-G.R. CR No. 17271. !s stated at the threshold hereof, the !, in its assailed /ecision dated January 13, 1999, affir(ed the trial court's 6ud&(ent of conviction, to wit4 @0?R?;1R?, findin& no 2asis in fact and in law to deviate fro( the findin&s of the court a quo, the decision appealed fro( is here2y !;;IR$?/ in toto. osts a&ainst appellant. >1 1R/?R?/.[11] Ietitioner (oved for reconsideration, 2ut his (otion was denied 2y the ! in its eAually assailed resolution of $arch 31, 1999.[1%] Ietitioner is now with this ourt, on the contention that the ! erred +

1.

In not findin& that it is i(pro2a2le for petitioner to have co((itted the atte(pted rape i(puted to hi(, a2sent sufficient, co(petent and convincin& evidence to prove the offense char&ed. In convictin& petitioner of atte(pted rape on the 2asis (erely of circu(stantial evidence since the prosecution failed to satisfy all the reAuisites for conviction 2ased thereon. In not findin& that the circu(stances it relied on to convict the petitioner are unrelia2le, inconclusive and contradictory. In not findin& that proof of (otive is (isera2ly wantin& in his case. In awardin& da(a&es in favor of the co(plainant despite the fact that the award was i(proper and un6ustified a2sent any evidence to prove the sa(e. In failin& to appreciate in his favor the constitutional presu(ption of innocence and that (oral certainty has not 2een (et, hence, he should 2e acAuitted on the &round that the offense char&ed a&ainst hi( has not 2een proved 2eyond reasona2le dou2t.

%.

3. .. 5. -.

1therwise stated, the 2asic issue in this case turns on the Auestion on whether or not the ! erred in affir(in& the rulin& of the R) findin& petitioner &uilty 2eyond reasona2le dou2t of the cri(e of atte(pted rape. !fter a careful review of the facts and evidence on record in the li&ht of applica2le 6urisprudence, the ourt is disposed to rule for petitioner's acAuittal, 2ut not necessarily 2ecause there is no direct evidence pointin& to hi( as the intruder holdin& a che(ical+soaked cloth who pinned $alou down on the 2ed in the early (ornin& of /ece(2er 13, 1991. Iositive identification pertains essentially to proof of identity and not per se to that of 2ein& an eyewitness to the very act of co((ission of the cri(e. )here are two types of positive identification. ! witness (ay identify a suspect or accused as the offender as an eyewitness to the very act of the co((ission of the cri(e. )his constitutes direct evidence. )here (ay, however, 2e instances where, althou&h a witness (ay not have actually witnessed the very act of co((ission of a cri(e, he (ay still 2e a2le to positively identify a suspect or accused as the perpetrator of a cri(e as when, for instance, the latter is the person or one of the persons last seen with the victi( i((ediately 2efore and ri&ht after the co((ission of the cri(e. )his is the second type of positive identification, which for(s part of circu(stantial evidence.[13] In the a2sence of direct evidence, the prosecution (ay resort to adducin& circu(stantial evidence to dischar&e its 2urden. ri(es are usually co((itted in secret and under condition where conceal(ent is hi&hly pro2a2le. If direct evidence is insisted under all circu(stances, the prosecution of vicious felons who co((itted heinous cri(es in secret or secluded places will 2e hard, if not well+ni&h i(possi2le, to prove.[1.] >ection . of Rule 133 of the Rules of ourt provides the conditions when circu(stantial evidence (ay 2e sufficient for conviction. )he provision reads4 >ec. .. ircu(stantial evidence, when sufficient K ircu(stantial evidence is sufficient for conviction if K

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one

circu(stanceE

2# )he facts fro( which the inferences are derived are provenE and c# )he co(2ination of all the circu(stances is such as to produce a conviction 2eyond reasona2le dou2t. In the present case, the positive identification of the petitioner for(s part of circu(stantial evidence, which, when taken to&ether with the other pieces of evidence constitutin& an un2roken chain, leads to only fair and reasona2le conclusion, which is &'a& (e&)&)o*er +a, &'e )*&ru-er )* .ue,&)o*. @e Auote with approval the !'s findin& of the circu(stantial evidence that led to the identity of the petitioner as such intruder4 hito was in the Buildin& when the attack on $!71: took place. 0e had access to the roo( of $!71: as Roo( 3,3 where he slept the ni&ht over had a window which allowed in&ress and e&ress to Roo( 3,- where $!71: stayed. *ot only the Buildin& security &uard, >B= ;erolin, 2ut Joseph Bernard !frica as well confir(ed that 0I)1 was wearin& a 2lack <!didas< shorts and fraternity )+shirt when he arrived at the Buildin&B:nit 3,3 at 143, in the (ornin& of /ece(2er 13, 1991. )hou&h it was dark durin& their stru&&le, $!71: had (ade out the feel of her intruder's apparel to 2e so(ethin& (ade of cotton (aterial on top and shorts that felt satin+s(ooth on the 2otto(. ;ro( 0I)1's 2a& which was found inside Roo( 31, at the very spot where witness Renato !la&adan saw 0I)1 leave it, were discovered the (ost incri(inatin& evidence4 the handkerchief stained with 2lue and wet with so(e kind of che(icalsE a 2lack <!didas< satin short pantsE and a white fraternity )+shirt, also stained with 2lue. ! different witness, this ti(e, hristian !lcala, identified these &ar(ents as 2elon&in& to 0I)1. !s it turned out, la2oratory e9a(ination on these ite(s and on the 2eddin&s and clothes worn 2y $!71: durin& the incident revealed that the handkerchief and $!71:'s ni&ht dress 2oth contained chlorofor(, a volatile poison which causes first de&ree 2urn e9actly like what $!71: sustained on that part of her face where the che(ical+soaked cloth had 2een pressed. )his 2rin&s the ourt to the issue on whether the evidence adduced 2y the prosecution has esta2lished 2eyond reasona2le dou2t the &uilt of the petitioner for the cri(e of atte(pted rape. )he >olicitor =eneral (aintained that petitioner, 2y pressin& on $alou's face the piece of cloth soaked in che(ical while holdin& her 2ody ti&htly under the wei&ht of his own, had co((enced the perfor(ance of an act indicative of an intent or atte(pt to rape the victi(. It is ar&ued that petitioner's actuation thus descri2ed is an overt act conte(plated under the law, for there can not 2e any other lo&ical conclusion other than that the petitioner intended to ravish $alou after he atte(pted to put her to an induced sleep. )he >olicitor =eneral, echoin& what the ! said, adds that if petitioner's intention was otherwise, he would not have lain on top of the victi(. [15] :nder !rticle 335 of the Revised Ienal ode, rape is co((itted 2y a (an who has carnal knowled&e or intercourse with a wo(an under any of the followin& circu(stances4 "1# By usin& force or inti(idationE "%# @hen the wo(an is deprived of reason or otherwise unconsciousE and "3# @hen the wo(an is under twelve years of a&e or is de(ented. :nder !rticle -, in relation to the afore(entioned article of the

sa(e code, rape is atte(pted when the offender co((ences the co((ission of rape directly 2y overt acts and does not perfor( all the acts of e9ecution which should produce the cri(e of rape 2y reason of so(e cause or accident other than his own spontaneous desistance.[1-] ?9poundin& on the nature of an atte(pted felony, the ourt, speakin& thru Justice laro $. Recto in Peop e !s. "a#a$an%,[13] stated t$at &t$e atte#pt '$i($ t$e Pena Code punis$es is t$at '$i($ $as a o%i(a (onne(tion to a parti(u ar, (on(rete offense) t$at '$i($ is t$e be%innin% of t$e e*e(ution of t$e offense by o!ert a(ts of t$e perpetrator, eadin% dire(t y to its rea i+ation and (onsu##ation.& !2sent the unavoida2le connection, like the lo&ical and natural relation of the cause and its effect, as where the purpose of the offender in perfor(in& an act is not certain, (eanin& the nature of the act in relation to its o26ective is a(2i&uous, then what o2tains is an atte(pt to co((it an indeter(inate offense, which is not a 6uridical fact fro( the standpoint of the Ienal ode.[1C] )here is a2solutely no dispute a2out the a2sence of se9ual intercourse or carnal knowled&e in the present case. )he ne9t Auestion that thus co(es to the fore is whether or not the act of the petitioner, i.e., the pressin& of a che(ical+soaked cloth while on top of $alou, constitutes an overt act of rape. 1vert or e9ternal act has 2een defined as so(e p$ysi(a a(ti!ity or deed, indicatin& the intention to co((it a particular cri(e, #ore t$an a (ere plannin& or preparation, which if carried out to its co(plete ter(ination followin& its natural course, without 2ein& frustrated 2y e9ternal o2stacles nor 2y the voluntary desistance of the perpetrator, will o%i(a y and ne(essari y ripen into a concrete offense.[19] 0ar(oni8in& the a2ove definition to the facts of this case, it would 2e too strained to construe petitioner's act of pressin& a che(ical+soaked cloth in the (outh of $alou which would induce her to sleep as an overt act that will lo&ically and necessarily ripen into rape. !s it were, petitioner did not co((ence at all the perfor(ance of any act indicative of an intent or atte(pt to rape $alou. It cannot 2e overe(phasi8ed that petitioner was fully clothed and that there was no atte(pt on his part to undress $alou, let alone touch her private part. ;or what reason petitioner wanted the co(plainant unconscious, if that was really his i((ediate intention, is any2ody's &uess. )he ! (aintained that if the petitioner had no intention to rape, he would not have lain on top of the co(plainant. Iloddin& on, the appellate court even anticipated the ne9t step that the petitioner would have taken if the victi( had 2een rendered unconscious. @rote the !4 )he sheddin& of the clothes, 2oth of the attacker and his victi(, will have to co(e later. 0is se9ual or&an is not yet e9posed 2ecause his intended victi( is still stru&&lin&. @here the intended victi( is an educated wo(an already (ature in a&e, it is very unlikely that a rapist would 2e in his naked &lory 2efore even startin& his attack on her. 0e has to (ake her lose her &uard first, or as in this case, her unconsciousness.[%,] !t 2otto( then, the appellate court indul&es in plain speculation, a practice disfavored under the rule on evidence in cri(inal cases. ;or, (ere speculations and pro2a2ilities cannot su2stitute for proof reAuired to esta2lish the &uilt of an accused 2eyond reasona2le dou2t.[%1] In Pere+ !s. Court of Appea s,[%%] the atte(pted rape, pointin& out that4 ourt acAuitted therein petitioner of the cri(e of

999. In the cri(e of rape, penetration is an essential act of e9ecution to produce the felony. )hus, for there to 2e an atte(pted rape, the accused (ust have co((enced the act of penetratin& his se9ual or&an to the va&ina of the victi( 2ut for so(e cause or accident other than his own spontaneous desistance, the penetration, however, sli&ht, is not co(pleted. 999 999 999 Ietitioner's act of lyin& on top of the co(plainant, e(2racin& and kissin& her, (ashin& her 2reasts, insertin& his hand inside her panty and touchin& her se9ual or&an, while ad(ittedly o2scene and detesta2le acts, do not constitute atte(pted rape a2sent any showin& that petitioner actually co((enced to force his penis into the co(plainant's se9ual or&an. 999. 7ikewise in Peop e !s. Pan($o,[%3] the ourt held4 999, appellant was (erely holdin& co(plainant's feet when his )ito 1nio arrived at the alle&ed o(us (ri#inis. )hus, it would 2e stretchin& to the e9tre(e our credulity if we were to conclude that (ere holdin& of the feet is atte(pted rape. 7est it 2e (isunderstood, the ourt is not sayin& that petitioner is innocent, under the pre(ises, of any wron&doin& whatsoever. )he infor(ation filed a&ainst petitioner contained an alle&ation that he forcefully covered the face of $alou with a piece of cloth soaked in che(ical. !nd durin& the trial, $alou testified a2out the pressin& a&ainst her face of the che(ical+soaked cloth and havin& stru&&led after petitioner held her ti&htly and pinned her down. Oerily, while the series of acts co((itted 2y the petitioner do not deter(ine atte(pted rape, as earlier discussed, they constitute un6ust ve9ation punisha2le as li&ht coercion under the second para&raph of !rticle %C3 of the Revised Ienal ode. In the conte9t of the constitutional provision assurin& an accused of a cri(e the ri&ht to 2e infor(ed of the nature and cause of the accusation,[%.] it cannot 2e said that petitioner was kept in the dark of the inculpatory acts for which he was proceeded a&ainst. )o 2e sure, the infor(ation a&ainst petitioner contains sufficient details to ena2le hi( to (ake his defense. !s aptly o2served 2y then Justice Ra(on . !Auino, there is no need to alle&e (alice, restraint or co(pulsion in an infor(ation for un6ust ve9ation. !s it were, un6ust ve9ation e9ists even without the ele(ent of restraint or co(pulsion for the reason that this ter( is 2road enou&h to include any hu(an conduct which, althou&h not productive of so(e physical or (aterial har(, would un6ustly annoy or irritate an innocent person.[%5] )he para(ount Auestion is whether the offender's act causes annoyance, irritation, tor(ent, distress or distur2ance to the (ind of the person to who( it is directed.[%-] )hat $alou, after the incident in Auestion, cried while relatin& to her class(ates what she perceived to 2e a se9ual attack and the fact that she filed a case for atte(pted rape proved 2eyond cavil that she was distur2ed, if not distressed 2y the acts of petitioner. )he penalty for coercion fallin& under the second para&raph of !rticle %C3 of the Revised Ienal ode is arresto #enor or a fine ran&in& fro( I5.,, to I%,,.,, or 2oth. /$EREFORE, the assailed /ecision of the ourt of !ppeals affir(in& that of the Re&ional )rial ourt of $anila, is here2y REVERSED and SET ASIDE and a new one entered AC01ITTING petitioner Renato /. Baleros, Jr. of the char&e for atte(pted rape. Ietitioner, however, is ad6ud&ed G1I!T2 of li&ht coercion and is accordin&ly sentenced to 3, days of arresto #enor and to pay a fine of I%,,.,,, with the accessory penalties thereof and to pay the costs.

SO Puno, (C$airperson), Corona, -., on leave. ,ando!a -Gutierre+ and A+(una,

ORDERED. --., concur.