Republic of the Philippines

REGIONAL TRIAL COURT

10th Judicial Region
Branch 2
Butuan City

PEOPLE OF THE PHILIPPINES, Crim. Case No. 12345

Plaintiff, For: “Frustrated Murder”

- versus -

REINALD RAVEN “MICHO” L. GUERRERO,

Accused,
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MEMORANDUM

Accused, Reinald Raven “Micho” L. Guerrero, through the

undersigned counsel, unto this Honorable Court, most submits his
memorandum pursuant to the Order of the Honorable Court.

PREFATORY STATEMENT

On June 25, 2018, Accused Reinald Raven “Micho” L. Guerrero was

charged, before the Regional Trial Court of Butuan, with the crime of
Frustrated Murder, as defined and penalized under Article 248 of the
Revised Penal Code, allegedly committed upon the person of Mark De Lima
in an Information, docketed as Criminal Case No. 12345, the accusatory
portions which read:

That on or about 6:00 in the evening of June 12, 2018 at the

eastern side exit of Robinsons Mall, J.C. Aquino Avenue,
Butuan City, Philippines and within the jurisdiction of this
Honorable Court, the above named accused, did there and then

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 willfully, unlawfully and feloniously and with treachery, shot
one Mark De Lima and inflicted a mortal wound on his left
chest and were it not for the timely medical intervention, the
wound would have caused the latter’s death to the damage and
prejudice of Mr. De Lima, in such amount as may be
determined by the Court.

CONTRARY TO LAW.

STATEMENT OF THE FACTS

In order that this Honorable Court may be enlightened and guided in

the judicious disposition of the above-entitled case, cited hereunder, are the
material, relevant and pertinent facts of the case, to wit:

1. Accused is Reinald Raven “Micho” L. Guerrero, 27 years old,

married, and a resident of Block 99, Lot 88, Mangga St., Brgy. Ampayon,
Butuan City.

2. Accused alleged that on or about 6 o’clock in the afternoon of June

12, 2018, he was in Dubai, United Arab Emirates, with his wife Cynthia A.
Guerrero, enjoying their honeymoon vacation (as evidenced by the Judicial
Affidavit of accused Reinald Raven Guerrero and by a Certified True Copy
of the Philippine Passport of the accused with the Latest Entry Stamp and
Exit Stamps dated June 10, 2018 and June 16, 2018, respectively), and in the
course thereof, attended a fellowship service in the Seventh Day Adventist
Church, with address at Holy Trinity Church Compound, Umm Hurair 2,
Dubai, United Arab Emirates (as evidenced by the Judicial Affidavit of
witness Francis V. Sumayod).

3. According to witness, Francis V. Sumayod, Head Pastor of Seventh

Day Adventist Church in Dubai, United Arab Emirates, on or about 5
o’clock in the afternoon of June 12, 2018, a couple approached him before

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the start of the fellowship, which happened to be accused and his wife,
Cynthia, and after their short introduction, they told him that they had just
arrived from the Philippines about 2 days ago, and that they have visited
Dubai for a honeymoon vacation (as evidenced by the Judicial Affidavit of
witness Francis V. Sumayod).

4. Witness Francis V. Sumayod likewise testified that the presence of

the accused during the fellowship was clearly manifested in the Attendance
Sheet of the aforementioned fellowship service, for it bore the names and
signatures of the accused and his wife (as evidenced by the Attendance
Sheet of Seventh Day Adventist Church, Dubai, UAE). During the cross-
examination, he also testified that the couple stayed until the fellowship
concluded at 7 o’clock in the evening.

5. On June 16, 2018, or 4 days after the alleged shooting incident,

accused and his wife finally arrived in the Philippines (as evidenced by the
Philippine Passport of accused with Latest Exit Stamp dated June 16, 2018)
and were only made aware of the crime charged on June 25, 2018 when an
Information for the crime of Frustrated Murder was filed against him in the
Regional Trial Court of Butuan (as evidenced by the Information charging
the crime of Frustrated Murder against accused).

6. On June 25, 2018, accused has executed and filed his Judicial
Affidavit (as evidenced by the Judicial Affidavit of accused) denying all
accusations imputed against him and interposing the defense of alibi for the
following reasons: First, accused was present in Dubai, UAE at the time of
the perpetration of the crime, as proved by a Certified True Copy of the
Philippine Passport of accused with Latest Entry Stamp and Exit Stamps
dated June 10, 2018 and June 16, 2018, respectively; and, Second, that it
was physically impossible for him to be at the scene of the crime in
Robinsons Mall Butuan, Philippines during the commission of the crime on
June 12, 2018, considering the long hours of air travel and length of distance

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from Dubai to the Philippines, and that no person could have possibly
employed any form of trickery or deceit to surmount such an impossible
feat.

ISSUES

A. WHETHER OR NOT THE SHOOTING OF MARK DE LIMA

WAS ATTENDED BY THE AGGRAVATING CIRCUMSTANCE
OF TREACHERY WHICH WOULD QUALIFY THE CHARGE
TO FRUSTRATED MURDER;

B. WHETHER OR NOT ACCUSED REINALD RAVEN

GUERRERO’S DEFENSE OF ALIBI WOULD PROSPER;

C. WHETHER OR NOT ACCUSED REINALD RAVEN GUERRERO

IS GUILTY BEYOND REASONABLE DOUBT FOR THE
SHOOTING OF MARK DE LIMA.

ARGUMENTS

THE SHOOTING OF MARK DE

LIMA WAS NOT ATTENDED BY
THE AGGRAVATING
CIRCUMSTANCE OF TREACHERY
WHICH WOULD QUALIFY THE
CHARGE TO FRUSTRATED MURDER;

7. There is treachery when the offender commits any of the crimes

against the person, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution without risk
to himself arising from the defense which the offended party might make

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(Art. 14, par. 16, Revised Penal Code; People v. Lacao, Sr., GR No. 95320,
September 4, 1991, 201 SCRA 317, 330). To constitute treachery, two
conditions must be present, to wit: (1) the employment of means of
execution that gave the person attacked no opportunity to defend himself or
to retaliate; and (2) the means of execution were deliberately or consciously
adopted (People v. Mabuhay, GR No. 87018, May 24, 1990, 185 SCRA 675,
680). Treachery cannot be presumed; it must be proved by clear and
convincing evidence (People v. Tiozon, GR No. 89823, June 19, 1991, 198
SCRA 368, 387-388).

8. Complainant alleged the qualifying circumstance of treachery in his

Information by stating that “with treachery (accused) shot one Mark De
Lima and inflicted a mortal would (sic) on his left chest.” This accusatorial
statement made in the Information actually belies the existence of treachery
because it admits that the mortal wound is apparently located in the left chest
or in the front portion of De Lima’s body, and not on the back. It is a settled
rule that treachery is not attendant where the attack was frontal, for in such
case, it could not be said that the victim was totally without opportunity to
defend himself (People v. Tugbo, Jr. GR No. 75894, April 22, 1991, 196
SCRA 133).

9. It must be noted that no evidence was ever presented to show that

the victim sustained any gunshot wound on his back. The mere fact that
accused testified that “his back was already soaked in blood” after the
shooting incident, does not ipso facto confirm that he actually sustained
gunshot wounds in the back, in the absence of clear and convincing
evidence, such as a medical abstract finding on the body of the victim or any
other documentary evidence clearly indicating the extent of the physical
injuries sustained by victim, such as, the location of the entry and exit
wounds, the number of bullets found inside the victim’s body, or even the
quality and nature of the injury. The prosecutor failed to secure such
evidence which is relevant and material to the case at hand.

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 10. According to the testimony of the complainant Mark De Lima and
witness Katrina Budlong in their respective judicial affidavits, as when they
were about to head into their car, and upon hearing a voice shouting in
vernacular, saying: “Mark, wala nakoy laing bahandi, siya nalang, imo pa
gyud giilog sa ako”, they allegedly turned around and allegedly saw the
accused Guerrero “in extreme anger pointing a gun xxx and started shooting
at them.” Here, the accused effectively announced his presence at the crime
scene with shouts and gunshots. Clearly, this mode of attack employed by
accused negated the existence of treachery since the element of surprise,
which marks the presence of treachery, was absent (People v. Cunanan, No.
L-30103, January 20, 1977).

11. In the absence of any evidence that the accused had, prior to the
moment of the killing, resolved to commit the crime, or when there is no
proof that the shooting of the victim was the result of meditation, calculation
or reflection, it can be obviously inferred from the prosecution’s version of
the facts that the alleged meeting between the accused and the complainant
with Katrina Budlong in Robinsons Mall Butuan was an unplanned or a
mere casual encounter, thus, negating treachery because it could not be said
that in such situation the accused had consciously adopted the means of
execution in perpetrating the crime (U.S. v. Balagtas, 19 Phil. 164).
Moreover, it has been ruled that treachery is not present when the attack was
the result of a rash and impetuous impulse of the moment rather than from a
deliberate act of the will (People v. Tugbo, Jr., supra). Hence, if the decision
to kill was sudden, there is no treachery, even if the position of the victim
was vulnerable, because it was not deliberately sought by the assailant, but
was purely accidental (People v. Cadag, et al., GR No. L-13830, May 31,
1961).

12. Witness Romel Asarcon, the cardio-surgeon who operated on

complainant, merely stated that a “slug had narrowly missed the left

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ventricle of the heart of the patient (De Lima)” (as evidenced by A6 in the
Judicial Affidavit of Romel Asarcon) without even mentioning the quality,
number and specific location of the wounds sustained by the complainant.
The location of the entry and exit wound of the bullet was not even
elaborated by the cardio-surgeon making it more improbable that treachery
attended the commission of the crime. Verily, the above statement made in
his affidavit does not confirm the attendance of treachery because said
qualifying circumstance must be established by clear and convincing
evidence (People v. Santos, supra).

ACCUSED REINALD RAVEN

GUERRERO’S DEFENSE OF
ALIBI WOULD PROSPER;

13. It is a settled rule that for the defense of alibi to prosper, the
accused must prove (a) that he was present at another place at the time of the
perpetration of the crime, and (b) that it was physically impossible for him to
be at the scene of the crime during its commission. (People v. Fernandez, GR
No. 226846, June 21, 2017). "Physical impossibility" means the distance and
the facility of access between the situs of the crime and the location of the
accused when the crime was committed; it must be demonstrated that the
accused was so far away and could not have been physically present at the
crime scene and its immediate vicinity upon its commission. (People v.
Roman Espia, G.R. No. 213380, August 10, 2016).

14. Although the defense of alibi is an inherently weak defense, such

is not always the fact where it is adequately proven that it is physical
impossible for the accused to be present at the scene of the crime. Referring
to the first element, accused Guerrero was able to prove adequately that he
was present in Dubai, UAE at the time the crime was perpetrated in the
Philippines, as testified to by witness Francis V. Sumayod, who was the
Head Pastor of the Seventh Day Adventist Church, where they attended a

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fellowship gathering from 5 o’clock in the afternoon to 7 o’clock in the
evening on June 12, 2018 and which was corroborated in evidence by a
Certified True Copy of the Attendance Sheet of the said fellowship
gathering, bearing the names and signatures of accused Guerrero and his
wife, Cynthia.

15. As to the second element, it is indeed physically impossible for

accused Guerrero in Dubai, UAE to be at the scene of the crime in
Robinsons Mall, Butuan, Philippines, during its commission considering the
long hours of air travel and length of distance from Dubai to the Philippines,
and that no person could have possibly employed any form of trickery or
deceit to surmount such an impossible feat. Besides, the Philippine Passport
offered in evidence by the accused contained the Latest Entry and Exit
Stamps indicating that he was in Dubai, UAE with his wife from June 10 up
to June 16, 2018 while the crime in question was committed on June 12,
2018. For this reason, accused had sufficiently demonstrated through
positive evidence that he was so far away and that he could not have been
physically present at the crime scene and that it could not be said that he was
present in two places at the same time. If there is the least possibility of his
presence at the locus criminis, the defense of alibi will not prosper. (People
v. Morillo, G.R. No. 208524, June 1, 2016). In this case, however, there is a
clear physical impossibility for the accused to be present at the scene of the
crime.

16. Further, it is interesting to note that during the cross-examination

of complainant Mark De Lima and witness Katrina Budlong, they described
the assailant as “wearing a black jacket and underneath of it he was wearing
a military uniform or in military fatigue.” However, this observation is
unusual because it is apparent that the supposed assailant is somewhat
connected in the military or police or jail service, which is contrary to what
the accused might have worn in public, being privately employed as Project
Planning and Control Engineer in Aboitiz Corporation, a shipping company.

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During the cross-examination of the accused, he denied wearing such
uniform for “he has no previous connection or even involvement in the
military or police or jail service in his entire life.” Undoubtedly, the
complainant and witness had mistaken the accused for another person. Well-
settled is the rule that the defense of alibi is inherently weak and cannot
prevail over the positive identification of the accused by the prosecution
witnesses, unless the accused shows that it was physically impossible for
him to have been at the scene of the crime. While the defense of alibi is
inherently weak, the same may be treated with merit where there is no
positive identification of the accused by the prosecution witness. (Manangan
v. People, GR No. 218570, November 22, 2017). For all reasons set forth
and mentioned above, it ultimately leads to the conclusion that the defense
of alibi of the accused would prosper for having met the requirements laid
down by law and jurisprudence.

ACCUSED REINALD RAVEN

GUERRERO IS NOT GUILTY BEYOND
REASONABLE DOUBT FOR THE
SHOOTING OF MARK DE LIMA

17. An accused has in his favor the presumption of innocence which

the Bill of Rights guarantees. Unless his guilt is shown beyond reasonable
doubt, he must be acquitted. This reasonable doubt standard is demanded by
the due process clause of the Constitution which protects the accused from
conviction except upon proof beyond reasonable doubt of every fact
necessary to constitute the crime with which he is charged. The burden of
proof is on the prosecution, and unless it discharges that burden the accused
need not even offer evidence in his behalf, and he would be entitled to an
acquittal. Proof beyond reasonable doubt does not, of course, mean such
degree of proof as, excluding the possibility of error, produce absolute
certainty. Moral certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind. The conscience must be

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satisfied that the accused is responsible for the offense charged (People v.
Que, GR No. 212994, January 31, 2018).

18. From the constitutional law point of view, the prosecution's failure
to establish with moral certainty all the elements of the crime and to identify
the accused as the perpetrator signify that it failed to overturn the
constitutional presumption of innocence that every accused enjoys in a
criminal prosecution. When this happens, as in this case, the courts need not
even consider the case for the defense in deciding the case; a ruling for
acquittal must forthwith issue (People v. Que, supra).

19. Proof beyond reasonable doubt is the quantum of evidence

required to sustain a proper conviction. However, the records of this case
were bereft of any showing that the prosecution had discharged its burden to
overcome the presumption of innocence of the accused. In fact, the
prosecution failed to proffer relevant and material pieces of evidence to
support and strengthen their case, such as but not limited to, ballistic results,
medical abstract findings on the body of the victim, recovery of empty
bullets in the crime scene, murder weapon, paraffin tests, photographic
evidence as well as CCTV footage of the alleged incident, which can be
easily obtained with reasonable diligence and proper coordination with the
responsible authorities. Unfortunately, none of these pieces of evidence were
offered in evidence by the prosecution. In other words, the prosecution had
fallen short in overthrowing the presumption of innocence of the accused.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

of this Honorable Court that judgment be rendered ACQUITTING the
accused Reinald Raven “Micho” L. Guerrero of the crime of Frustrated
Murder for failure of the prosecution to prove his guilt beyond reasonable
doubt.

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 Other reliefs and remedies just and equitable under the premises are
likewise prayed for.

BUTUAN CITY, PHILIPPINES, this 18th day of August, 2018.

ATTY. CLARK JAY M. LIM

Counsel for Accused Reinald Raven L. Guerrero
Roll No. 22441
IBP No. 904627 (February 3, 2018)
PTR No. 532654 (February 13, 2018) Butuan City
MCLE Cert. No. III – 0134501 (7-4-18)
432 Arujville Subdivision, Brgy. Libertad, Butuan City

Copy furnished (thru personal service):

PROS. RONEL M. AZARCON

Prosecutor I
Buenavista Municipal Hall
Buenavista, Agusan del Norte

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