G.R. No.

193854 September 24, 2012

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
DINA DULAY y PASCUAL, Appellant.

DECISION

PERALTA, J.:

This is to resolve an appeal from the Decision1 dated August 4, 2010 of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 03725 affirming with modification the Decision2 dated October 8, 2008 of the
Regional Trial Court (RTC), Branch 194, Parañaque City, finding appellant Dina Dulay guilty
beyond reasonable doubt of the crime of Rape under Article 266-A. No. 1 (a) of the Revised Penal
Code (RPC) as amended by Republic Act (R.A.) 8353 as a co-principal by indispensable cooperation.

The records bear the following factual antecedents:

Private complainant AAA3 was 12 years old when the whole incident happened. AAA's sister
introduced the appellant to AAA as someone who is nice. Thereafter, appellant convinced AAA to
accompany her at a wake at GI San Dionisio, Parañaque City. Before going to the said wake, they
went to a casino to look for appellant's boyfriend, but since he was not there, they went to Sto. Niño
at Don Galo. However, appellant's boyfriend was also not there. When they went to Bulungan Fish
Port along the coastal road to ask for some fish, they saw appellant's boyfriend. Afterwards, AAA,
appellant and the latter's boyfriend proceeded to the Kubuhan located at the back of the Bulungan
Fish Port. When they reached the Kubuhan, appellant suddenly pulled AAA inside a room where a
man known by the name "Speed" was waiting. AAA saw "Speed" give money to appellant and heard
"Speed" tell appellant to look for a younger girl. Thereafter, "Speed" wielded a knife and tied AAA's
hands to the papag and raped her. AAA asked for appellant's help when she saw the latter peeping
into the room while she was being raped, but appellant did not do so. After the rape, "Speed" and
appellant told AAA not to tell anyone what had happened or else they would get back at her.

AAA went to San Pedro, Laguna after the incident and told her sister what happened and the latter
informed their mother about it. AAA, her sister and mother, filed a complaint at Barangay San
Dionisio. Thereafter, the barangay officials of San Dionisio referred the complaint to the police
station.

The Parañaque City Police Office (Women's and Children Concern Desk) asked the assistance of
the Child Protection Unit of the Philippine General Hospital, upon which the latter assigned the
case to Dr. Merle Tan. Consequently, with the consent of AAA and her mother, and in the presence
of a social worker of the Department of Social Welfare and Development (DSWD), Dr. Tan conducted
the requisite interview and physical examination on AAA. Later on, Dr. Tan issued a Medico-Legal
Report4 stating that there was no evident injury in the body of AAA, but medical evaluation cannot
exclude sexual abuse. During her testimony, Dr. Tan explained that such impression or conclusion
pertains to the ano-genital examination and also stated that she found multiple abrasions on the
back portion of the body of AAA.5

Thus, an Information was filed, which reads as follows:

That on or about the 3rd day of July 2005, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together with one alias "Speed," whose true name and identity and present whereabouts is still
unknown, and both of them mutually helping and aiding one another, the herein accused Dina P.
Dulay having delivered and offered for a fee complainant AAA, 12 year old minor, to accused alias
"Speed," who with lewd design and by means of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge on said minor complainant AAA against her will
and without her consent, which act is prejudicial to the normal growth and development of the said
child.

CONTRARY TO LAW.6

With the assistance of counsel de oficio, on August 3, 2005, appellant entered a plea of not
guilty.7 Therafter, trial on the merits ensued.

To support the above allegations, the prosecution presented the testimonies of AAA and Dr. Merle
Tan. On the other hand, the defense presented the sole testimony of appellant which can be
summarized as follows:

Appellant met AAA a few days before June 2005 when the latter was introduced to her by her cousin
Eglay Akmad during the wake of a relative of AAA at Palanyag. The cousin of appellant was AAA's
neighbor at Palanyag. Around 1 o'clock in the morning of July 3, 2005, appellant averred that she
was at La Huerta, at the Bulungan Fish Port in Parañaque City with her cousin Eglay and stayed
there for about thirty (30) minutes. They then proceeded to the house of appellant's cousin in
Palanyag. In the said house, appellant saw "Speed" and two (2) other male persons. She also saw
AAA who was engaged in a conversation with "Speed" and his two (2) companions. She asked AAA
what she was doing there and the latter said that it was none of her business ("wala kang pakialam
sa akin"). Because of the response of AAA, appellant left the house and went home to General Trias,
Cavite.

On October 8, 2008, the RTC found appellant guilty beyond reasonable doubt of the crime of rape
as co-principal by indispensable cooperation. The dispositive portion of the decision reads:

WHEREFORE, finding Accused Danilo guilty beyond reasonable doubt for rape as a co-principal by
indispensable cooperation, she is hereby sentenced to suffer an imprisonment of Reclusion
Perpetua under Article 266-B of the Revised Penal Code and to pay the offended party the amount
of ₱ 50,000.00 by way of damages.

The period of her detention shall be considered part of the service of her sentence.

SO ORDERED.8

Not satisfied with the judgment of the trial court, the appellant brought the case to the CA. The
latter, on August 4, 2010, promulgated its decision affirming the ruling of the RTC with a
modification on the award of damages, thus:

WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the MODIFICATION
that the accused-appellant is sentenced to suffer the penalty of reclusion perpetua and ordered to
indemnify the offended party the sum of Fifty Thousand Pesos (₱ 50,000.00) as civil indemnity,
Fifty Thousand Pesos (₱ 50,000.00) as moral damages and Twenty-Five Thousand Pesos (₱
25,000.00) as exemplary damages.

SO ORDERED.9

Hence, the present appeal.

In her Brief, appellant assigned the following errors:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF

RAPE AS CO-PRINCIPAL BY INDISPENSABLE COOPERATION.
 II

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE
TESTIMONY OF THE PRIVATE COMPLAINANT AAA.10

The Office of the Solicitor General, representing the appellee, refutes the above assignment of errors
by stating the following arguments:

I.CONSPIRACY WAS CLEARLY ESTABLISHED IN THIS CASE.

II.THE LOWER COURT DID NOT ERR IN BELIEVING THE TESTIMONY OF PRIVATE
COMPLAINANT.

III.ACCUSED-APPELLANT'S DEFENSE OF DENIAL CANNOT BE GIVEN GREATER

EVIDENTIARY WEIGHT THAN THE POSITIVE TESTIMONY OF PRIVATE COMPLAINANT.11

An appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal
can correct errors, though unassigned in the appealed judgment, or even reverse the trial court's
decision on the basis of grounds other than those that the parties raised as errors.12

The appellant in this case was charged in the Information as having committed the crime of Rape
under Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of
R.A. 7610. She was eventually convicted by the trial court of the crime of rape as a co-principal by
indispensable cooperation and was sentenced to suffer imprisonment of reclusion perpetua as
provided under Article 266-B of the RPC.

In sustaining the conviction of the appellant as co-principal by indispensable cooperation, the CA,
ratiocinated:

To cooperate means to desire or wish in common a thing. But that common will or purpose does
not necessarily mean previous understanding, for it can be explained or inferred from the
circumstances of each case. The cooperation must be indispensable, that is, without which the
commission of the crime would not have been accomplished. x x x

xxxx

The proven facts and circumstances obtaining in this case fall squarely on the above-cited example.
It will be noted that the cooperation of the accused-appellant consisted in performing an act which
is different from the act of execution of the crime committed by the rapist. Accused-appellant
cooperated in the perpetration of the crime of rape committed by "Speed" by acts without which the
crime would not have been consummated, since she prepared the way for the perpetration thereof,
convinced the victim to go with her under the guise of looking for her boyfriend and upon arrival at
the kubuhan, she pulled the victim inside a room where "Speed" was waiting, delivered the victim
to him, and then after receiving some amount of money from "Speed" she settled in another room
together with her boyfriend so that "Speed" might freely consummate the rape with violence and
intimidation, as he did.13

However, this Court is of another view and does not subscribe to the findings of the trial court, as
sustained by the CA that appellant is guilty beyond reasonable doubt as co-principal by
indispensable cooperation in the crime of rape.

Under the Revised Penal Code,14 an accused may be considered a principal by direct participation,
by inducement, or by indispensable cooperation. To be a principal by indispensable cooperation,
one must participate in the criminal resolution, a conspiracy or unity in criminal purpose and
cooperation in the commission of the offense by performing another act without which it would not
have been accomplished.15 Nothing in the evidence presented by the prosecution does it show that
the acts committed by appellant are indispensable in the commission of the crime of rape. The
events narrated by the CA, from the time appellant convinced AAA to go with her until appellant
received money from the man who allegedly raped AAA, are not indispensable in the crime of rape.
Anyone could have accompanied AAA and offered the latter's services in exchange for money and
AAA could still have been raped. Even AAA could have offered her own services in exchange for
monetary consideration and still end up being raped. Thus, this disproves the indispensable aspect
of the appellant in the crime of rape. It must be remembered that in the Information, as well as in
the testimony of AAA, she was delivered and offered for a fee by appellant, thereafter, she was raped
by "Speed." Thus:

PROS. R. GARCIA: Now, what happened after you met this Dina Dulay?
WITNESS AAA: She invited me to go with her boyfriend, Sir.
xxxx
Q: You went to the bulungan, what happened when you reached the fish port or bulungan, AAA?
A: Pumunta kami sa kubuhan, Sir.
Q: Where is this kubuhan located in relation to the fish port?
A: At the back portion, Sir.
Q: And, when you said pumunta kami, who was then your companion in going to that kubuhan?
A: Dina Dulay and her boyfriend, Sir.
Q: Do you know the name of the boyfriend of Dina Dulay?
A: No, Sir.
xxxx
Q: All right. After reaching the kubuhan, what happened next?
A: Pina-rape po ako, Sir.
Q: What made you say AAA that accused here Dina Dulay had you raped at the kubuhan?
A: Kasi po binayaran siya nung lalaki, Sir.
Q: Now, do you know how much this Dina Dulay was paid by that person who was you said raped
you?
A: No, Sir. I just saw them.
Q: And what did you see that was paid to Dina?
A: Pera, Sir.
Q: Aside from seeing a guy giving money to Dina Dulay, did you hear any conversation between
this Dina Dulay and that man who gave money to her?
A: Yes, sir.
Q: Can you tell this Honorable Court AAA, what was that conversation you heard between this Dina
Dulay and the person who gave money to her?
A: He said to look for a younger girl, Sir.16
xxxx
PROS. R. GARCIA:
Q: Okay. After that conversation and the giving of money to Dina Dulay, what happened to you and
the man?
A: He raped me, Sir.
Q: Where were you raped?
A: At the Kubuhan, Sir. Q: Can you describe to this Honorable Court how you were raped by that
person?
A: He tied me up, Sir.
Q: How were you tied up as you said?
A: He tied up both my hands, Sir.
Q: Then after tying your hands what happened next?
A: He raped me and he pointed a knife at me, Sir.
Q: When you said you were raped, are you referring to the insertion of his penis into your sex
organ?
A: Yes, Sir.
Q: And, how did you feel at that time when the organ of this man was inserted into your organ?
A: It was painful, Sir.
Q: And, how did you react when as you said you were being raped by this person?
A: I cannot talk. He put clothes in my mouth, Sir.
Q: For how long did you stay in that kubuhan with this man? May isang oras ba kayo doon?
A: Yes, Sir.
Q: Now, tell us how AAA many times did this person insert his penis into your organ?
A: Only one (1) AAA, Sir.17

It must be clear that this Court respects the findings of the trial court that AAA was indeed raped
by considering the credibility of the testimony of AAA. The rule is that factual findings of the trial
court and its evaluation of the credibility of witnesses and their testimonies are entitled to great
respect and will not be disturbed on appeal.18However, the review of a criminal case opens up the
case in its entirety. The totality of the evidence presented by both the prosecution and the defense
are weighed, thus, avoiding general conclusions based on isolated pieces of evidence.19 In the case
of rape, a review begins with the reality that rape is a very serious accusation that is painful to
make; at the same time, it is a charge that is not hard to lay against another by one with malice in
her mind. Because of the private nature of the crime that justifies the acceptance of the lone
testimony of a credible victim to convict, it is not easy for the accused, although innocent, to
disprove his guilt. These realities compel this Court to approach with great caution and to scrutinize
the statements of a victim on whose sole testimony conviction or acquittal depends.20

In this light, while this Court does not find appellant to have committed the crime of rape as a
principal by indispensable cooperation, she is still guilty of violation of Section 5 (a) of R.A. 7610,
or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, which
states that:

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:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are
not limited to, the following:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;

(3) Taking advantage of influence or relationship to procure a child as a prostitute;

(4) Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to
engage such child in prostitution.21

The elements of paragraph (a) are:

1. the accused engages in, promotes, facilitates or induces child prostitution;

2. the act is done through, but not limited to, the following means:

a. acting as a procurer of a child prostitute;

b. inducing a person to be a client of a child prostitute by means of written or oral

advertisements or other similar means;
 c. taking advantage of influence or relationship to procure a child as a prostitute;

d. threatening or using violence towards a child to engage him as a prostitute; or

e. giving monetary consideration, goods or other pecuniary benefit to a child with

intent to engage such child in prostitution;

3. the child is exploited or intended to be exploited in prostitution and

4. the child, whether male or female, is below 18 years of age.22

Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It
contemplates sexual abuse of a child exploited in prostitution. In other words, under paragraph
(a), the child is abused primarily for profit.23

As alleged in the Information and proven through the testimony of AAA, appellant facilitated or
induced child prostitution. 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.24 Thus, the act of apellant in convincing AAA, who was 12 years old at that time, to
go with her and thereafter, offer her for sex to a man in exchange for money makes her liable under
the above-mentioned law. The purpose of the law is to provide special protection to children from
all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions
prejudicial to their development.25 A child exploited in prostitution may seem to "consent" to what
is being done to her or him and may appear not to complain. However, we have held that a child
who is "a person below eighteen years of age or those unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age
or mental disability or condition" is incapable of giving rational consent26 to any lascivious act or
sexual intercourse.

It must be noted that in the Information, it was alleged that appellant was accused of Rape under
Article 266-A, No. 1 (a) of the RPC, as amended by R.A. 8353 in relation to Section 5 (b) of R.A.
7610, and then went on to enumerate the elements of Section 5 (a) of R.A. 7610 in its body. The
Information partly reads:

x x x the herein accused Dina P. Dulay having delivered and offered for a fee complainant AAA, 12
year old minor, to accused alias "Speed," who with lewd design and by means of force and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge on said
minor complainant AAA against her will and without her consent x x x 27

Undoubtedly, the above-quoted falls under Section 5 (a) of R.A. 7610, the appellant acting as a
procurer of a child and inducing the latter into prostitution. It must be remembered that the
character of the crime is not determined by the caption or preamble of the information nor from
the specification of the provision of law alleged to have been violated, they may be conclusions of
law, but by the recital of the ultimate facts and circumstances in the complaint or information.28 The
sufficiency of an information is not negated by an incomplete or defective designation of the crime
in the caption or other parts of the information but by the narration of facts and circumstances
which adequately depicts a crime and sufficiently apprises the accused of the nature and cause of
the accusation against him.29 1âwp hi1

To dispute the allegation and the evidence presented by the prosecution, appellant merely
interposes the defense of denial. It is well settled that denial is essentially the weakest form of
defense and it can never overcome an affirmative testimony, particularly when it comes from the
mouth of a credible witness.30
Anent the penalty, for violation of the provisions of Section 5, Article III of R.A. 7610, the penalty
prescribed is reclusion temporal in its medium period to reclusion perpetua. Therefore, in the
absence of any mitigating or aggravating circumstance, the proper imposable penalty is reclusion
temporal in its maximum period, the medium of the penalty prescribed by the
law.31 Notwithstanding that R.A. 7610 is a special law, appellant may enjoy the benefits of the
Indeterminate Sentence Law.32 Since the penalty provided in R.A. 7610 is taken from the range of
penalties in the Revised Penal Code, it is covered by the first clause of Section 1 of the Indeterminate
Sentence Law.33 Thus, appellant is entitled to a maximum term which should be within the range
of the proper imposable penalty of reclusion temporal in its maximum period (ranging from 17
years, 4 months and 1 day to 20 years) and a minimum term to be taken within the range of the
penalty next lower to that prescribed by the law: prision mayor in its medium period to reclusion
temporal in its minimum period (ranging from 8 years and 1 day to 14 years and 8 months).34

As to the award of damages, the same must be consistent with the objective of R.A. 7610 to afford
children special protection against abuse, exploitation and discrimination and with the principle
that every person who contrary to law, willfully or negligently causes damage to another shall
indemnify the latter for the same.35 Therefore, civil indemnity to the child is proper in a case
involving violation of Section 5 (a), Article III of R.A. 7610. This is also in compliance with Article
100 of the RPC which states that every person criminally liable is civilly liable. Hence, the amount
of ₱ 50,000.00 civil indemnity ex delicto as awarded in cases of violation of Section 5 (b), Article III
of R.A. 761036 shall also be the same in cases of violation of Section 5 (a), Article III of R.A. 7610.

WHEREFORE, the appeal of appellant Dina Dulay y Pascual is hereby DISMISSED. However, the
Decision of the CA is hereby MODIFIED as appellant is not guilty beyond reasonable doubt of the
crime of rape, but of violating Section 5 (a), Article III R.A. 7610, amended, for which she is
sentenced to fourteen (14) years and eight (8) months of reclusion temporal, as minimum, to twenty
(20) years of reclusion temporal, as maximum. Appellant is also ORDERED to pay AAA the amount
of ₱ 50,000.00 as civil indemnity.

G.R. No. 147913 January 31, 2007

CLEMENT JOHN FERDINAND M. NAVARRETE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CORONA, J.:

This petition for review on certiorari1 assails the September 29, 2000 decision2 and May 4, 2001 resolution3 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 BBB6 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 movie14 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 age23), the offender can be convicted of the lesser crime of acts of lasciviousness, which is included
in rape.24

The case of People v. Bon25 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.
xxx xxx xxx
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?
xxx xxx xxx
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 regulations36 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.42In 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.
In sum, we find petitioner guilty beyond reasonable doubt of acts of lasciviousness under Article 336 of the
RPC in relation to Section 5 (b), Article III of RA 7610.

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.

G.R. No. 177752 February 24, 2009

PEOPLE OF THE PHILIPPINES, Appellant,

vs.
ROBERTO ABAY y TRINIDAD, Appellee.

DECISION

CORONA, J.:

On March 8, 2000, appellant Roberto Abay y Trinidad was charged with rape in relation to Section 5(b),
Article III of RA 7610 in the Regional Trial Court (RTC) of Manila, Branch 41 under the following Information:

That sometime in December 1999, in the City of Manila, Philippines, [appellant] by means of force and
intimidation, did then and there willfully, unlawfully and knowingly commit sexual abuse and lascivious
conduct against [AAA], a minor, 13 years of age, by then and there kissing her breast and whole body, lying
on top of her and inserting his penis into her vagina, thus succeeded in having carnal knowledge of her,
against her will and consent thereafter threatening to kill her should she report the incident, thereby gravely
endangering her survival and normal growth and development, to the damage and prejudice of [AAA].

CONTRARY TO LAW.

Appellant pleaded not guilty during arraignment.

During trial, the prosecution presented AAA, her mother BBB and expert witness Dr. Stella Guerrero-Manalo
of the Child Protection Unit of the Philippine General Hospital as its witnesses.

AAA testified that appellant, her mother’s live-in partner, had been sexually abusing her since she was
seven years old. Whenever her mother was working or was asleep in the evening, appellant would threaten
her with a bladed instrument2 and force her to undress and engage in sexual intercourse with him.

BBB corroborated AAA’s testimony. She testified that she knew about appellant’s dastardly acts. However,
because he would beat her up and accuse AAA of lying whenever she confronted him, she kept her silence.
Thus, when she caught appellant in the act of molesting her daughter on December 25, 1999, she
immediately proceeded to the police station and reported the incident.

According to Dr. Guerrero-Manalo, AAA confided to her that appellant had been sexually abusing her for six
years. This was confirmed by AAA’s physical examination indicating prior and recent penetration injuries.

The defense, on the other hand, asserted the incredibility of the charge against appellant. Appellant’s sister,
Nenita Abay, and appellant’s daughter, Rizza, testified that if appellant had really been sexually abusing
AAA, the family would have noticed. The rooms of their house were divided only by ¼-inch thick plywood
"walls" that did not even reach the ceiling. Thus, they should have heard AAA’s cries. Moreover, Nenita and
Rizza claimed that they "often caught" AAA and her boyfriend in intimate situations.

According to the RTC, one wrongly accused of a crime will staunchly defend his innocence. Here, appellant
kept his silence which was contrary to human nature. On the other hand, AAA straightforwardly narrated her
horrifying experience at the hands of appellant. The RTC concluded that appellant had indeed sexually
abused AAA. A young girl would not have exposed herself to humiliation and public scandal unless she was
impelled by a strong desire to seek justice.3

In a decision dated November 25, 2003,4 the RTC found appellant guilty beyond reasonable doubt of the
crime of rape:

WHEREFORE, finding [appellant] Roberto Abay y Trinidad guilty beyond reasonable doubt of committing
the crime of rape under Article 335 of the Revised Penal Code in relation to Section 5, Article III of RA 7610
against [AAA], the Court imposes upon him the death penalty,5 and to pay private complainant moral
damages in the amount of Fifty Thousand (₱50,000) Pesos.

SO ORDERED.

The Court of Appeals (CA), on intermediate appellate review,6 affirmed the findings of the RTC but modified
the penalty and award of damages.

In view of the enactment of RA 83537 and RA 9346,8 the CA found appellant guilty only of simple rape and
reduced the penalty imposed to reclusion perpetua. Furthermore, in addition to the civil indemnity ex
delicto (which is mandatory once the fact of rape is proved)9 granted by the RTC, it awarded ₱50,000 as
moral damages and ₱25,000 as exemplary damages. Moral damages are automatically granted in rape
cases without need of proof other than the commission of the crime10 while exemplary damages are
awarded by way of example and in order to protect young girls from sexual abuse and exploitation.11

We affirm the decision of the CA with modifications.

Under Section 5(b), Article III of RA 761012 in relation to RA 8353,13 if the victim of sexual abuse14 is below
12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article
266-A(1)(d) of the Revised Penal Code15 and penalized with reclusion perpetua.16 On the other hand, if the
victim is 12 years or older, the offender should be charged with either sexual abuse17 under Section 5(b) of
RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the
offender cannot be accused of both crimes18 for the same act because his right against double jeopardy will
be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act.19 Likewise,
rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised
Penal Code (on complex crimes),20 a felony under the Revised Penal Code (such as rape) cannot be
complexed with an offense penalized by a special law.21

In this case, the victim was more than 12 years old when the crime was committed against her. The
Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore,
appellant may be prosecuted either for violation of Section 5(b) of RA 7610 or rape under Article 266-A
(except paragraph 1[d]) of the Revised Penal Code. While the Information may have alleged the elements of
both crimes, the prosecution’s evidence only established that appellant sexually violated the person of AAA
through force and intimidation22 by threatening her with a bladed instrument and forcing her to submit to his
bestial designs. Thus, rape was established.23

Indeed, the records are replete with evidence establishing that appellant forced AAA to engage in sexual
intercourse with him on December 25, 1999. Appellant is therefore found guilty of rape under Article 266-
A(1)(a) of the Revised Penal Code and sentenced to reclusion perpetua. Furthermore, to conform with
existing jurisprudence, he is ordered to pay AAA ₱75,000 as civil indemnity ex-delicto24 and ₱75,000 as
moral damages.25

WHEREFORE, the January 18, 2007 decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01365 is
hereby AFFIRMED with modification. Appellant Roberto Abay y Trinidad is hereby found GUIILTY of
simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay AAA
₱75,000 as civil indemnity ex-delicto, ₱75,000 as moral damages and ₱25,000 as exemplary damages.