In denying having raped a 9-year old girl whom he claims to have treated as his own daughter, the accused stakes his plea of innocence on his alleged impotency, thereby lending a ludicrous overtone to the otherwise tragic and painful drama of the public trial. But notwithstanding such attempts at comedy, his absurd defense is rejected by this Court.
The Criminal Complaint against the appellant reads:jgc:chanrobles.com.ph
"That on or about the 2nd day of December, 1992, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, ALEX (ALEJANDRO) GABRIS Y Gambon, with violence against person, did then and there, willfully, unlawfully and criminally, have carnal knowledge of the undersigned complainant, ANALYN CALOSOR, against her will and consent, to the damage and prejudice of the latter.
Contrary to Article 335, par. 1 of the Revised Penal Code."cralaw virtua1aw library
The above Complaint was treated as the Information after it was approved by the City Prosecutor. When arraigned, appellant entered a plea of "not guilty." After trial on the merits, the Regional Trial Court, First Judicial Region, Branch 44, 1 Dagupan City, rendered judgment 2 convicting the herein accused-appellant of the crime of rape.
Facts of the Case
Analyn Calosor, a 9-year old pupil, lived with her aunt Marilyn Calosor in Bonuan, Catacdang, Dagupan City, as her parents were already dead. Early in the morning of December 2, 1992, her aunt went to the hospital to look after Analyn’s sick sister Kimberly, leaving Analyn alone in the house. At about 7:00 that morning, while Analyn was drinking her coffee prior to getting dressed, her "Kuya Alex" (appellant) arrived. Appellant was known to her, since he had formerly been living in with her aunt for several years. Analyn went inside her room and was about to change her clothes when appellant suddenly entered. He kissed her neck, leaving a kiss-mark on it. Then, appellant lay on Analyn’s pillow and told her to lie down, too, but she refused. Appellant pulled her and then undressed her and removed her panty. With Analyn lying on top of the pillow, appellant kissed her vagina. He then opened his zipper and while holding her at knifepoint, forcibly placed his penis inside her vagina. Analyn felt something wet like water flow into her vagina. It was painful. And thereafter, she could not urinate. During the episode, appellant brandished the knife at her and warned her not to report the incident to anyone. 3
The aunt arrived soon after and when she saw appellant inside her house, she asked him what he was doing there. Appellant replied that he was just drinking coffee. Marilyn left again for the hospital shortly thereafter. 4
Analyn also testified that it was not the first time she was abused by appellant; that he had done it to her several times, once during her birthday in 1992, and again on November 27, 1992; and that she did not like what he had been doing but she was forced by appellant. 5
Analyn complained by painful urination. She was examined by Dr. Alexis Mary A. Chuson of the Gov. Teofilo Sison Memorial Hospital in Dagupan City, who made the following findings:jgc:chanrobles.com.ph
"No signs of external injury.
Neck: with hematoma 1.5 x 1.5 cms. supraclavicular area, right.
Genitalia: Hymen intact, reddish discoloration and edematous vestibular area.
IE: not done, vagina does not admit one finger and with pain on attempt.
Vaginal smear for presence of spermatozoa — negative." 6
Version of the Defense
Appellant’s defense consists of plain denial. He claims he did not rape the victim, contending that not only does he consider the victim as his own daughter, but that it was physically impossible for him to rape her as he has been impotent since January 1992. He even accompanied the girl to the hospital for medico-legal examination. Upon the other hand, the girl’s aunt, Marilyn, had motive to force the girl to accuse him of rape. 7 Since he lost his capacity for erection, the woman, who was his mistress from 1993 till early 1992, and with whom he had lived as common-law husband and wife, kept quarreling with him because he could no longer scratch her itch." She also persisted in trying to extract support from him, although he couldn’t give her any money. 8 Appellant claims that he even submitted himself three times between February and March 1992 for medical examination and treatment of his condition by the late Dr. Vivencio Torres, who found "a malfunctioning of the vein" in the appellant’s penis. However, appellant lost his documentary proof that he had been treated by said doctor for the aforementioned condition. 9 Whatever he tried doing now, he couldn’t regain penile erection. 10 That fateful day he happened to be in the house of Marilyn and Analyn because he was working with Marilyn’s brother-in-law in repairing refrigerators. 11
On February 24, 1994, the trial court rendered the now-assailed Decision finding appellant guilty as charged. The dispositive portion of the decision reads:jgc:chanrobles.com.ph
"WHEREFORE, the Court finds the accused Alejandro Gabris y Gambon guilty beyond reasonable doubt of the crime of consummated rape under Article 335, paragraph 1 of the Revised Penal Code, and pursuant to law, hereby sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the costs.
The accused is ordered to indemnify the offended party in the amount of Fifty Thousand Pesos (P50,000.00).
SO ORDERED."cralaw virtua1aw library
Hence , this appeal.
Assignment of Errors
In his brief, appellant assigned the following errors:jgc:chanrobles.com.ph
"I. The trial court gravely erred in finding the accused-appellant guilty beyond reasonable doubt of the crime of rape by believing the incredible story of the prosecution.
II. The trial court erred in allowing with partiality the marking of the certification of excerpt from the police blotter purporting an uncounselled admission of the accused that he kissed the victim on the neck leaving a mark thereat as evidence for the prosecution and admitting the same under the disguise of establishing the fact that the incident was entered in the police blotter." 12
In the main, appellant assails the credibility of the victim’s testimony and questions the weight and sufficiency of the prosecution’s evidence. He calls attention to alleged inconsistencies in the testimony of the victim, and the supposed contradictions vis-a-vis the victim’s sworn statement and that of her aunt, which he claims bolstered his position that the charge against him was just trumped up as a revenge by Analyn’s aunt who was his former mistress and who wanted to exact financial support from him. Thus, he claims that Analyn’s sworn statement conflicted with her testimony in supposedly significant details such as when her aunt was supposed to have first seen the appellant that fateful morning.
Additionally, appellant contends that the judge was biased against him when he allowed the marking as exhibit of the certification containing the excerpt of an entry in the police blotter, which tended to show that appellant admitted having placed the kissmark on the victim’s neck, despite objection that it was made without assistance of counsel.
This Court’s Ruling
We are not persuaded by appellant’s arguments. Instead, it is clear to us that he evidence on record sufficiently supports the judgment of conviction and thus, we affirm said judgment.
In appeals or rape cases, certain well-established principles and precepts are controlling, viz.: (a) an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (b) due to the nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. 13 In this case, as in many others before it, the credibility of the offended party’s testimony is determinative of the outcome. 14 But the sole testimony of the offended party, if credible, is sufficient to declare a conviction. 15
Generally speaking, the trial court’s evaluation as to the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses’ demeanor and deportment on the stand, and the manner in which they gave their testimonies. The trial judge therefore can better determine if such witnesses were telling the truth, being in the ideal position to weigh conflicting testimonies. 16 Therefore, unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment on credibility must be respected. 17 In the instant case, we scoured the records and found no justification for making a finding different from that of the trial court on the matter of credibility and weight of evidence.
The trial court declared that the complainant, barely ten years old at the time of the trial, would not have subjected herself to the ordeal of a public humiliation and specifically, would not have admitted in front of 19 complete strangers inside the courtroom including the presiding judge, to such a shameful, painful and degrading experience as having been ravished, unless it were the truth. The court a quo declared her testimony to be credible and entitled to belief "because there was no motive to testify against the accused" since "the only desire of the complainant is to vindicate her honor." 18 It has been consistently held that where there is no evidence and no indication that the witness for the prosecution was actuated by improper motive to testify against an accused, the presumption is that the witness was not so actuated and the testimony thus given is entitled to full faith and credit. 19 Our view of her testimony supports the court a quo’s conclusions, as we found the complainant’s testimony to have been given in a straight-forward and simple manner without a shadow of rancor or bitterness. Thus we consider her testimony to be deserving of total credibility.
The so-called inconsistencies or contradictions in the victim’s testimony vis-a-vis her sworn statement and that of her aunt do not adversely affect her credibility. She was only 9 years old at the time of the incident. The traumatic and degrading misfortune that befell her, followed by the unfamiliar, confusing and frightening experiences of police investigation, medical examination, and courtroom grilling in full view of the public, surely placed her under a lot of pressure, and given her tender age, she was undoubtedly much troubled and confused. Moreover, this Court has held:jgc:chanrobles.com.ph
"As regards the inconsistencies in the affidavits and the testimony in court by the prosecution witnesses, this Court has held that affidavits are usually deficient. Being taken ex parte, an affidavit is almost always incomplete and often inaccurate, sometimes from partial suggestions and sometimes from want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected circumstances necessary for the connection of the first suggestions of his first memory and for his accurate recollection of all that belongs to the subject (People v. Jutie, 171 SCRA 586; 593 ). As such they do not really affect the credibility of the witness." 20
The alleged inconsistency between Analyn’s sworn statement and her testimony as to the particular hour of day when the previous abuse (Nov. 27, 1992) took place is easily explained. When Analyn answered "7 o’clock in the morning" to the question "What time?" (with reference to the previous abuse by appellant), she must have been confused and understood the questions to refer to her recent assault. She was aware that the case being tried was only about the rape committed on December 2, 1992. Any question about rape, therefore, would be correlated by Analyn to the rape subject of the pending criminal case. Moreover, being but an innocent 9-year old when ravished, she did not know the implication of what had been done to her so she could not be expected to have taken note and be accurate in all details. What she knew was that she did not like what had been done to her but because she was warned not to tell anyone, she just kept quiet. At her tender age, she is not expected to disregard a threat of bodily harm and complain immediately of the forcible assault on her. "A young girl, unlike a mature woman cannot be expected to have the courage and intelligence to immediately report a sexual assault committed against her especially when a death threat hangs over her head." 21 More so in this case where appellant exerts some moral ascendancy over the victim, whose aunt-guardian was appellant’s mistress for several years. As claimed by appellant himself, he treated Analyn like his child.
In any event, the alleged inconsistencies indicated by appellant refer only to minor matters which do not detract from the credibility of the complainant or impair the evidence of the prosecution. 22
Further, Analyn’s testimony is corroborated by physical evidence. There was the hematoma on her neck resulting from the kissmark. Her vagina, particularly the vestibular area, suffered irritation and reddish discoloration that could have been caused by the forcible insertion of a male organ. The absence of spermatozoa and the fact that the hymen was still intact do not necessarily negate rape. After all, the slightest penetration of the pudenda is all that is necessary. In People v. Palicte, 23 the accused therein claimed that no rape was committed on the 11-year old victim because there was no deep penetration of her vagina as the hymen was still intact; but his Court held:jgc:chanrobles.com.ph
"The fact that there was no deep penetration of the victim’s vagina and that her hymen was still intact does not negate the commission of rape. According to Dr. Jose Ladrido, Jr., who has been in medico-legal cases since 1963 and has examined many rape victims, if the victim is a child, as in the case of Edievien, rape can be done without penetration. Without penetration the male organ is only within the lips of the female organ, and there is interlabia or sexual intercourse with little, none, or full penetration, although he admitted that it was also possible that there was no rape since the hymen was intact.
In the case before us, Edievien repeatedly testified that the accused inserted his penis into her vagina for half an hour, as a consequence of which she suffered pain. This, at least, could be nothing but the result of penile penetration sufficient to constitute rape. Being a virgin, as found by the examining physician, her hymenal resistance could be strong as to prevent full penetration. But just the same, penetration there was, which caused the pain. For, rape is committed even with the slightest penetration of the woman’s sex organ. Mere entry of the labia or lips of the female organ without rupture of the hymen or laceration of the vagina, as in this case of Edievien, is sufficient to warrant conviction for consummated rape." (footnotes omitted)
Considering that there was no complete penetration attributable to the still undeveloped organ of the child, laceration of the hymen may not have occurred at all; nor would we expect the presence of spermatozoa which, in any case, could be easily washed away.
The fact the Marilyn did not do anything about the situation as soon as she arrived may be explained by the fact that she was probably preoccupied and worried about the sick child in the hospital. She did not catch appellant in flagrante delicto so there was no reason for her to become alarmed or to make an outcry. In fact, it was only when Analyn complained of the pain in her vagina that the whole story came out.
On the other hand, the defense of appellant that he could not copulate inasmuch as he is no longer capable of erection is not only self-serving but utterly unbelievable. Despite the seriousness of the charge against him, and the opportunities available to him to secure confirmation of his alleged condition, he failed to even attempt to substantiate his claim, either medically, by way of another medical examination by, say, a specialist, or else by the testimonies of his ex-mistresses, (he testified to having had at least two former mistresses, the victim’s aunt and one Virgie Casupang). Such inaction leads one to suspect that any attempt on his part to substantiate his claim would have ended in failure instead.
Appellant contends that the judge was biased against him when he allowed the marking as exhibit of the certification containing the excerpt from the police blotter, showing that appellant admitted having placed the kissmark on the victim’s neck, despite objection that it was made without assistance of counsel.
It must be stressed that the contested entry in the police blotter involves only the kissmark. It has not been given probative value in the rape itself. In fact, the judge admitted that its entry in the police blotter as Exhibit "C" was made only for the purpose of establishing the fact that such incident was entered in the police blotter. 24 Appellant’s conviction did not depend on this piece of evidence but on the testimony of the victim herself and other corroborative evidence. A close scrutiny of the decision indicates that the said certification did not figure at all in the evaluation of the guilt or innocence of the accused.
We should mention here that the prosecution could have lessened its burden by alleging in the Information the commission of the crime of statutory rape, under paragraph 3 of Art. 335, Revised Penal Code, 25 instead of rape through the use of force and intimidation under paragraph 1, since it cannot be disputed that the victim was below the age of twelve at the time the rape was committed. Nevertheless, the prosecution did establish appellant’s use of threats and acts of intimidation (i.e., holding the knife on the victim while consummating the sexual assault), which appellant failed to rebut. Yet, even if statutory rape had been alleged, the effort to prove force or intimidation would not be wasted as we can look upon such threats as explaining the victim’s apprehensions and helplessness, and her general state of mind during and after the incident.
WHEREFORE, the herein questioned Decision of the trial court finding accused-appellant Alejandro Gabris y Gambon guilty beyond reasonable doubt of the crime of rape committed against Analyn Calosor, and imposing upon him the penalty of reclusion perpetua
, as well as ordering him to indemnify the offended party in the sum of fifty thousand pesos, is hereby AFFIRMED in toto.
, Davide, Jr., Melo and Francisco, JJ.
1. Judge Crispin C. Laron, presiding.
2. Rollo, pp. 9-14.
3. TSN, Sept. 17, 1993, pp. 3-11.
4. Id., pp. 12-15.
5. Id., pp. 16-17.
6. Exh. "A" — Medical Certificate; also, TSN, Sept. 24, 1993, pp. 4-7.
7. TSN, November 5, 1993, pp. 4-6.
8. Id., pp. 6, 8.
9. Id., pp. 6-8.
10. Id., pp. 9-10.
11. Id., p. 15.
12. Appellant’s brief, p. 1; rollo, p. 28.
13. People v. Casinillo, 213 SCRA 777, 788-789 (September 11, 1992); People vs, Matrimonio, 215 SCRA 613, 627 (November 13, 1992); People v. Lucas, 232 SCRA 537, 546 (May 25, 1994).
14. People v. Jaca, 229 SCRA 332 (January 18, 1994).
15. People v. Vallena, 244 SCRA 685, 691 (June 1, 1995).
16. People v. Vallena, supra; also People v. Jaca, supra.
17. People v. Tismo, 204 SCRA 535, 552 (December 4, 1991). see also People v. Uycoque, 246 SCRA 769, 779 (July 31, 1995).
18. Decision, p. 4; rollo, p. 12.
19. People v. Simon, 209 SCRA 148, 159 (May 21, 1992); People v. Rostata, 218 SCRA 657, 673-674 (February 9, 1993); and People v. Alib, 222 SCRA 517, 527-528 (May 24, 1993).
20. People v. Segwaben, 194 SCRA 239, 247 (February 19, 1991).
21. People v. Ibay, supra, citing People v. Olivar, 215 SCRA 759, 764-765 (November 13, 1992).
22. People v. Morre, 217 SCRA 219 (January 18, 1993).
23. 229 SCRA 543, 547-548 (January 27, 1994).
24. See TSN, Oct. 12, 1993, p. 6.
25. "Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances:chanrob1es virtual 1aw library
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime or rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
x x x"