THIRD
DIVISION
PEOPLE
OF THE PHILIPPINES,
Plaintiff-Appellee,
G. R. Nos. 90247-49
February 13, 1992
-versus-
JOSE
OCAMPO y TIAMSON,
Accused-Appellant.
D
E C I S I O N
FELICIANO, J.:
Jose Ocampo
appeals from a decision of the trial
court convicting him of two [2] crimes of statutory rape, sentencing
him
for each crime to the penalty of reclusion perpetua and
awarding
private complainant, Luzviminda A. Bañez, an indemnity of
P25,000.00
as moral damages, but acquitting him of the crime of lascivious acts
for
insufficiency of evidence.[1]
Appellant was
charged in two [2] complaints both
dated 7 July 1988 and signed by the complainant of statutory rape. The
first complaint reads:
That on or about the 23rd day of December
1983,
in the Municipality of Pasig, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, by means
of force and intimidation, and with lewd designs, did then and there,
wilfully,
unlawfully and feloniously have carnal knowledge of one, Luzviminda A.
Bañez, a girl under twelve [12] years of age.[2]
Except for the
date of commission of the second offense,
which was 23 January 1984, the second complaint was identically worded
as the first.[3]
At arraignment,
appellant entered a plea of not
guilty to both charges.[4]
The cases then proceeded to trial. The trial court found the following
facts to have been established:
A perusal of the prosecution evidence
primarily
anchored on complainant's testimony, shows that the victim, Luzviminda
Bañez, was a young girl, then nine years old and a grade school
pupil. Accused Jose Ocampo, on the other hand, was a widower who became
complainant's stepfather when her mother, Gloria A. Bañez,
married
him sometime in 1983 after the death of her father.
Accused bore three [3] children by the
first
marriage, so also with Gloria A. Bañez. After their union, they
decided to reside altogether with their respective children at No. 5
Santan
St., Jabson Site, Pasig, Metro Manila.
On December 28, 1983, at about 8:30
o'clock in
the morning, while complainant was sleeping alone inside the room of
their
house at the aforesaid address, accused came near her and promised to
give
her dolls, clothing and necklaces when his plan to go to Saudi Arabia
materializes.
Once there, accused undressed complainant by pulling down her shorts
and
underwear and pulling up her sando. Accused likewise pulled down his
pants
and brief and pulled up his shirt. Then, accused lay on top of
complainant,
inserted his private part into her organ and made that push and pull
movement.
Complainant cried in pain and asked the accused why there was blood and
the latter answered that it just came from her mother. She also saw
"white
blood" in her private part. Thereafter, both of them put on their
clothes,
with accused warning the complainant not to tell anybody what happened
to her. For about a week, complainant experienced pain in urinating.
On January 23, 1984, at around 6:00
o'clock in
the evening, complainant was again in the same room when the accused
came
in and undressed her. Accused also undressed himself, then placed
himself
on top of complainant and inserted his private part into her private
partAccused made a push and pull movement and again complainant later saw
"white
blood" in her private organ.
On 2 May 1988, while complainant was in
their
house, her mother and accused herein had a quarrel. Her mother took all
of accused's documents in going to Saudi (sic) and left the
house.
Accused then charged complainant and her brother and sister as the ones
who kept the travel documents. Before her mother left the house,
complainant
was whipped in front of the accused, telling her how she cursed much (sic)
of her [the mother's] husband. She [complainant] became rebellious that
she told her mother, "yung mga gamit ng asawa mo, kulang pa sa
ginawa
niya sa akin." When her mother asked her what she meant, she
[complainant]
frankly told her: "Ginawaan niya ako ng masama." Her mother
cried
and called up her Auntie Lydia Eugenio in order to accompany her to the
hospital for a medical check-up. She was subjected to medical
examination
there but due to lack of money, she was not able to get the result.
In the meantime, complainant was
instructed by
her mother to live at the house of her [natural] father's friend for
about
a week. Thereafter, she transferred to the house of her Auntie,
Josefina
Manlapig. On 11 May 1988, the latter accompanied her to a lawyer and
then
to the PC Crime Laboratory at Camp Crame, Quezon City where she
underwent
another medical examination.
Dr. Dario L.
Gajardo, the attending medico-legal
officer who examined the complainant, concluded in his Medico-Legal
Report
No. M-1050-88 [Exhibits "A" and "A-1"] that the victim is in a
non-virgin
state physically. His findings upon examination of the victims's
genitals
reads as follows:
There is absence of pubic hair. Labia
majora
are full, convex and coaptated with the dark brown labia minora presenting
in between. On separating the same is disclosed an elastic, fleshy-type
hymen with shallow healed laceration at 4 and an indentation at 9
o'clock.
External vaginal orifice offers moderate resistance to the introduction
of the examining index finger and virgin-sized vaginal speculum.
Vaginal canal is narrow with prominent rugosities. Cervix is normal in
size, color and consistency.
Appellant was
apprehended at the Jabson Site residence
on 23 November 1988 by policemen bearing a warrant of arrest issued by
the trial court. He has been in detention ever since.[6]
Appellant gave a
different and uncorroborated
version of events, centered chiefly on the defense of alibi,
before
the trial court. He alleged that on the dates when he supposedly had
carnal
knowledge of Luzviminda, he was at the residence of his mother located
at No. 116 Gonzales St., Caloocan City, caring for his three [3]
children
by his deceased first wife, and never left those premises during said
dates.[7]
In this appeal,
appellant assigns a single error
allegedly committed by the trial court:
The trial court erred in not taking into
account
certain circumstances which, if properly considered, could have
reinforced
the conclusion that the judgment should be one of acquittal of the
accused-appellant,
not only in the case of lasciviousness, but likewise for the crime of
rape
on two counts.[8]
The ultimate
issue posed in this appeal is whether
the trial court erred in believing the testimony of the prosecution
witnesses,
namely the complainant, her paternal[9]
aunt, Josefina Manlapig, and the examining physician [Dr. Dario L.
Gajardo],
tending to show that appellant had sexually embraced complainant when
she
was only nine [9] years of age and in disbelieving the exculpatory
declarations
of appellant.
The Court accords
great respect to the factual
conclusions drawn by trial courts, particularly on the matter of
credibility
of witnesses, since the trial judge had the opportunity of observing
the
deportment and demeanor of witnesses while listening to them speak;
enabling
him to form, at first hand, a judgment as to whether witnesses are
telling
the truth or not.[10]
Appellant's
present appeal has failed to show
why the Court should depart from this general rule.
Appellant invokes in his favor the settled rule
that the uncorroborated testimony of an alleged rape victim should not
be received by a court with precipitate credulity but should be
examined
and weighed carefully and a conviction handed down only if the
testimony
is impeccable and rings true throughout. He points out the following
claimed
defects in complainant's testimony: (1) it is possible that
complainant's
outburst during the quarrel on 2 May 1988 was due to the resentment she
felt over her previous scoldings by appellant as a stepfather, as well
as to her desire [which was shared by her relatives like witness
Josefina
Manlapig] to drive a wedge between appellant and her mother in order to
cause their separation; (2) it was implausible for appellant to have
abused
complainant because he and the latter's mother were married and had
consequently
come to live together as husband and wife at the Jabson Site residence,
only on 15 December 1984; and (3) considering that complainant was
almost
fourteen [14] years of age at the time of her physical examination, it
was possible that the loss of her physical virginity, as indicated in
the
medico-legal report of the PC Crime Laboratory,[11]
was due to sexual intercourse with someone other than her stepfather.[12]
The contentions
are unconvincing. The claimed
ill-motives of the complainant and her relatives were not established
by
the testimony of impartial corroborating witnesses. That such a motive
existed and drove Luzviminda to accuse appellant, her stepfather,
falsely
of rape appears to Us too speculative and unreal a supposition.
Complainant'
s capacity falsely to fabricate a story of sexual abuse is belied by
her
innocence of such matters, a condition she had exhibited before the
trial
court when, already an adolescent, she naively referred to appellant's
semen as "white blood." It is far more plausible to the Court that
complainant's
motive in denouncing appellant was to vindicate the wrong done to her
by
appellant regardless of the consequence such a public disclosure may
mean
for her reputation.[13]
In support of his
second contention, appellant
introduced for the first time on appeal a marriage contract, claiming
it
was evidence he could not produce and offer at the trial court because
he was detained and which, if considered by the Court, would support
his
claim of a belated marriage with Luzviminda's mother.[14] The difficulty with this
contention
is that appellant could have asked the trial court to require
production
of the marriage contract from the appropriate officer having the
custody
of the record by way of subpoena duces tecum. Since the
document
was not offered as evidence before the trial court, it cannot now be
considered
by the Court in this appeal.[15]
Moreover,
assuming the belated character of appellant's
marriage to Luzviminda's mother, that marriage did not necessarily
imply
that appellant, as a suitor of complainant's mother, could have no
access
to the girl prior to the marriage, it appearing that both mother and
daughter
were already residing together with appellant at Jabson Site prior to
the
legal union of appellant and Luzviminda's mother.[16] We note that there was a
lapse
of four [4] years before the facts concerning the two [2] instances of
sexual intercourse that appellant had inflicted upon complainant
Luzviminda,
emerged into the open. Appellant had carnal knowledge of Luzviminda in
December of 1983 and January of 1984, while the informations were filed
against appellant in July 1988, after a family quarrel had precipitated
a whipping of Luzviminda by her mother in front of accused. Luzviminda
was nine [9] years old when appellant lay with her and took away her
virginity.
She was then living in the same house that her mother and accused
stepfather
lived in and supported by her mother and possibly by her stepfather as
well. That fact, coupled with the warning that appellant had taken the
precaution to administer to Luzviminda, is adequate explanation, to the
mind of the Court, for the long delay and the pronounced reluctance of
Luzviminda to reveal to her mother and her family at large what her
stepfather
had done to her. The trial court found her testimony forthright and
credible:
After a careful study and scrutiny of the
evidence
presented by both the prosecution and the defense, the Court finds no
sufficient
justification to depart from the theory of the prosecution.
Complainant's
positive, direct and categorical assertion on how she was sexually
abused
by the accused herein on different occasions, merits the Court's full
faith
and credence more so that it was corroborated by the findings of the
medico-legal
officer who examined the complainant.
In order to entice her into yielding to
the
lustful
desire of the accused, complainant in no uncertain terms declared that
accused promised to give her dolls, clothing and necklace should his
plan
to go to Saudi Arabia push through. Truly, this made complainant happy
[T.S.N., June 27, 1989, p. 13] as a girl of so tender an age would
readily
be influenced by such cajolery and importunings. The innocence of the
complainant
in matters about sex was solidly portrayed when she described the
sticky
fluid during ejaculation as mere "white blood."[17]
[Emphasis supplied].
Appellant's
contentions afford no basis for overturning
this conclusion of the trial court.
The mere
imputation of promiscuous conduct on
the part of complainant will not serve to negate the truth of the
statutory
rape charges. Her declarations before the trial court contained the
intimate
details of her violation which remained uncontradicted on material
points
despite intensive cross-examination by defense counsel.[18]
Against such positive testimony, appellant's uncorroborated and
self-exculpatory
contention that complainant may have had sexual intercourse with other
males simply cannot prevail.[19]
Appellant also
contends that the circumstance
that complainant's mother, who would have naturally felt as if she had
herself been violated in this case, did not testify against him on the
circumstances regarding complainant's public disclosure of the alleged
sexual abuses, created a presumption that the mother's testimony would
have been adverse to the prosecution's cause if presented.[20] Such presumption did not
arise
here because the testimony of complainant's mother was always available
to appellant who could have called her as a hostile witness for the
defense.[21]
Moreover, the mother's testimony would have constituted cumulative
evidence
merely for the prosecution and could be dispensed with at the
prosecutor's
discretion.[22]
Finally, as
before the trial court, appellant
raises here the defense of alibi.[23]
The trial court rejected that defense and We must do so too:
The denials made and the alibis
advanced
by the accused cannot prevail over his positive identification by
complainant.
As has been consistently held, alibi is the weakest of all
defenses;
especially where it has not been shown that it was not physically
impossible
for the accused to have been present at the place where the crime was
committed
at the time it was perpetrated. Accused's alleged place in Caloocan
City
was just a few kilometers away from the house of complainant in Pasig
and
the same could be traversed in about an hour and, therefore, there was
no physical impossibility of the accused to have been at the crime
scene
during its commission.[24]
A further difficulty in sustaining this
defense
stems from appellant's assertion under direct examination[25]
that he was at his mother's residence on 23 December 1983, even though
the first rape was shown earlier by the prosecution to have occurred
five
[5] days later. His failure to offer corroborating witnesses, like his
mother and his three [3] minor children by his first marriage who
claimed
were also present at the Caloocan City residence on 23 January 1984,
further
impaired the value of his alibi.[26]
It appearing to
the Court that the evidence has established
to a moral certainty that appellant copulated with complainant on at
least
two [2] occasions when the latter was still below 12 years of age, We
conclude
that the trial court did not err in convicting appellant twice of the
crime
of statutory rape. Though there was a variance in the established date
of commission of the first offense, that date was not so remote from
the
date alleged in the relevant complaint as to surprise and prejudice the
appellant.[27]
The precise date when complainant was sexually abused is not an
essential
element of the offense.[28]
The gravamen of that offense is having sexual intercourse with a woman
under twelve [12] years of age. Whether force, intimidation or cajolery
was employed by the culprit, either to overcome the resistance of the
victim,
or to inveigle her into giving her consent to the sexual act, is quite
immaterial so far as concerns the generating of criminal liability.[29]
It also appears
to the Court that the commission
of both offenses was attended by the alternative circumstance of
relationship
which is aggravating in crimes against chastity.[30]
Appellant had exploited the trust which complainant must have reposed
in
him as a stepfather [complainant's ascendant by affinity] in order to
facilitate
the commission of the offenses.[31]
However, since the penalty provided for statutory rape is single and
indivisible
[reclusion perpetua], this modifying circumstance would have no
effect on the penalties imposable on appellant.[32]
WHEREFORE, the
challenged Decision of the Regional
Trial Court dated 1 September 1989 is hereby affirmed with the sole
modification
that the indemnity awarded to the complainant as moral damages should
be
increased to P50,000.00 in each case, after taking into account the
violation
of trust and confidence arising from the relationship between offender
and his nine [9] year old stepdaughter.[33]
Costs against appellant.cralaw:red
SO ORDERED.cralaw:red
Gutierrez, Jr.,
Bidin, Davide, Jr., and Romero,
JJ., concur.cralaw:red
_____________________________
Endnotes
[1]
Rollo, p. 5; Decision, pp. 9-10.
[2]
Folder of Transcript of Stenographic Notes, p. 18.
[3]
Record, p. 1.
[4]
Id., pp. 18-19.
[5]
Rollo, p. 5; Decision, pp. 2-4 and 6.
[6]
Record, pp. 13-14; T.S.N., 12 July 1989, p. 4.
[7]
T.S.N., 12 July 1989, pp. 2-3.
[8]
Rollo, p. 29; Appellant's Brief, p. 6.
[9]
T.S.N., 21 February 1989, p. 7.
[10]
People vs. Raptus, G. R. No. 92169-70, 19 June 1991, p. 10.
[11]
Exhibit "A" for the Prosecution; Record, p. 56.
[12]
Rollo, p. 29; Appellant's Brief, pp. 6-9. T.S.N., 12 July 1989, pp. 4-5.
[13]
People v. Yambao, 193 SCRA 571, 577-578 [1991].
[14]
Rollo, p. 29; Appellant's Brief, pp. 6-7.
[15]
Rule 132, Section 34; see People v. Rael, et al., G. R. No. 64415, 10
December
1991, p. 17.
[16]
T.S.N., 27 June 1989, pp. 3-4.
[17]
Rollo, pp. 9-10; Decision, pp. 5-6.
[18]
T.S.N., 27 June 1989, pp. 13-14.
[19]
People v. Puedan, 196 SCRA 388, 397 [1991].
[20]
Rollo, p. 29. Appellant's Brief, p. 8.
[21]
U.S. v. Dinola, 37 Phil. 797, 810 [1918].
[22]
See People v. Gadiana, 195 SCRA 211, 214 [1991].
[23]
Rollo, p. 29. Appellant's Brief, pp. 5-6.
[24]
Rollo, p 5; Decision, pp. 7-8; reiterated in People v. Herico, 192 SCRA
655, 662 [1990] and in People v. Santos, 183 SCRA 25, 33 [1990].
[25]
T.S.N., 12 July 1989, p. 2.
[26]
People v. Graza, 196 SCRA 512, 517-518 [1991].
[27]
People v. Puedan, 196 SCRA at 393.
[28]
Id.
[29]
People v. Raptus, G.R. Nos. 92169-70, 19 June 1991, pp. 9-10.
[30]
Article 15 [2], Revised Penal Code; People v. Lucas 181 SCRA 316, 327
[1990].
[31]
People v. De Leon, 50 Phil. 539, 545 [1927].
[32]
Articles 63[1] and 335[2], Revised Penal Code.
[33]
People v. Puedan, 196 SCRA at 398; People v. Santos, 183 SCRA at 33-34.
See also People v. Andaya, 196 SCRA 660, 664-665 [1991]. |