G. R. No. 139615 - May 28, 2004
PEOPLE OF THE PHILIPPINES, Appellee, vs. AMADEO TIRA and CONNIE TIRA, appellants.
D E C I S I O N
CALLEJO, SR., J.:
This is an appeal of the Decision1 of the Regional Trial Court of Pangasinan, Branch 46, finding appellants Amadeo Tira and Connie Tira guilty beyond reasonable doubt of violating Section 16, in relation to Section 20, Article III of Republic Act No. 6425, known as the Dangerous Drugs Act of 1972, as amended by Rep. Act No. 7659, sentencing each of them to suffer the penalty of reclusion perpetua and ordering each of them to pay a fine of
The appellants Amadeo Tira and Connie Tira were charged in an Information which reads:
That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and feloniously have in their possession, control and custody the following:
without first securing the necessary permit/license to possess the same.
CONTRARY to SEC. 8 in relation to Sec. 20 of RA 6425, as amended.3
The Case for the Prosecution4
In the evening of February 24, 1998, SPO3 Asidelio Manibog received a verbal instruction from the Chief of Police Superintendent Wilson R. Victorio to conduct surveillance operations on the house of Amadeo Tira and Connie Tira at Perez Extension Street because of reported rampant drug activities in the said area. Manibog formed a team composed of SPO1 Renato Cresencia, PO3 Reynaldo Javonilla, Jr. and PO3 Efren Abad de Vera to conduct the ordered surveillance.
At around 8:00 p.m., the group, clad in civilian clothes, arrived at Perez Extension Street. As they stationed themselves in the periphery of a store, they observed that more than twenty persons had gone in and out of the Tira residence. They confronted one of them, and asked what was going on inside the house. The person revealed that Amadeo Tira sold shabu, and that he was a regular customer. The group went closer to the house and started planning their next move. They wanted to pose as buyers, but hesitated, for fear of being identified as PNP members. Instead, they stayed there up to 12:00 midnight and continued observing the place. Convinced that illegal activities were going on in the house, the policemen returned to the station and reported to P/Supt. Wilson R. Victorio. After hearing their report, P/Supt. Victorio instructed his men to make an affidavit of surveillance preliminary to an application for a search warrant.5
On March 6, 1998, SPO3 Asidelio Manibog, PO3 Efren Abad de Vera, SPO1 Renato Cresencia and PO2 Reynaldo Soliven Javonilla, Jr. executed an Affidavit of Surveillance, alleging, inter alia, that they were members of the Drug Enforcement Unit of Urdaneta, Pangasinan, and that in the evening of February 24, 1998, they confirmed reports of illegal drug-related activities in the house of the spouses Amadeo and Connie Tira.6 On March 6, 19987 Police Chief Inspector Danilo Bumatay Datu filed an Application for a Search Warrant in the Municipal Trial Court of Urdaneta, Pangasinan, attaching thereto the affidavit of surveillance executed by his men and a sketch of the place to be searched.8
Satisfied with the testimonies of SPO3 Manibog, PO3 de Vera, SPO1 Cresencia and PO2 Javonilla, Jr., Judge Aurora A. Gayapa issued a search warrant commanding the applicants to make an immediate search of the Tira residence at anytime of the day or night, particularly the first room on the right side, and the two rooms located at Perez south, and forthwith seize and take possession of the following items:
P/Sr. Inspector Ludivico Bravo, and as head of the team, with SPO3 Cariaga, PO3 Concepcion, Cariño, Galima, Villaroya, Andaya, SPO1 Mario Tajon, SPO1 Asterio Dismaya, SPO1 Renato Cresencia, and PO3 Reynaldo Javonillo were directed to implement the search warrant.10 They responded and brought Barangay Kagawad Mario Conwi to witness the search.11 At 2:35 p.m. on March 9, 1998, the team proceeded to the Tira residence. The men found Ernesto Tira, the father of Amadeo, at the porch of the house. They introduced themselves and told Ernesto that they had a warrant authorizing them to search the premises. Ernesto led them inside. The policemen found the newly awakened Amadeo inside the first room12 of the house.13 With Barangay Kagawad Conwi and Amadeo Tira, the policemen proceeded to search the first room to the right (an inner room) and found the following under the bed where Amadeo slept:14
They also found cash money amounting to
The policemen listed the foregoing items they found in the house. Amadeos picture was taken while he was signing the said certification.18 Ernesto (Amadeos father), also witnessed the certification.
A joint affidavit of arrest was, thereafter, executed by SPO3 Asidelio Manibog, SPO1 Mario C. Tajon, SPO1 Asterio T. Dismaya, SPO1 Renato M. Cresencia and PO3 Reynaldo S. Javonilla, Jr. for the apprehension of Amadeo Tira and Nelson Tira who were brought to the police station for custodial investigation. The articles seized were turned over to the PNP Crime Laboratory, Urdaneta Sub-Office, for examination.19 In turn, a laboratory examination request was made to the Chief of the Philippine National Police Service-1, Sub-Office, Urdaneta, Pangasinan for the following:
On March 10, 1998, P/Supt. Wilson R. Victorio executed a Compliance/Return of Search Warrant.21
On March 17, 1998, the PNP Crime Laboratory Group in Physical Science Report No. DT-057-98 reported that the test conducted by Police Superintendent/Chemist Theresa Ann Bugayong-Cid,22 yielded positive for methamphetamine hydrochloride (shabu) and marijuana. The report contained the following findings:
"A1 to A3, "B1 to B6," "E" POSITIVE to the test for methamphetamine hydrochloride (shabu), a regulated drug.
"C" and "D1 to D4" POSITIVE to the test for marijuana, a prohibited drug.
Specimens A1 to A3, B1 to B6 and E contain methamphetamine hydrochloride (Shabu) and specimens C and D1 to D24 contain marijuana.23
A criminal complaint was filed by P/Supt. Wilson R. Victorio against Amadeo Tira and Connie Tira on March 10, 1998 for violation of Rep. Act No. 6425, as amended.24 After finding probable cause, Assistant Provincial Prosecutor Rufino A. Moreno filed an Information against the Tira Spouses for illegal possession of shabu and marijuana, in violation of Section 8, in relation to Section 20 of Rep. Act No. 6425.25 A warrant of arrest was issued against Connie Tira on May 13, 1998. However, when the policemen tried to serve the said warrant, she could not be found in the given address.26 She was arrested only on October 6, 1998.27
During the trial, the court conducted an ocular inspection of the Tira residence.28
The Case for Accused Amadeo Tira29
Amadeo Tira denied the charge. He testified that he was a furniture delivery boy30 who owned a one-storey bungalow house with two bedrooms and one masters bedroom. There was also another room which was divided into an outer and inner room; the latter room had no windows or ventilation. The house stood twenty meters away from Perez Extension Street in Urdaneta, Pangasinan, and could be reached only by foot.31 He leased the room located at the western portion to his nephew Chris Tira32 and the latters live-in-partner Gemma Lim for four hundred pesos a month.33 Chris and Gemma were engaged in the buying and selling of bananas. He denied that there were young men coming in and out of his house.34
In the afternoon of March 6, 1998, he was in his house sleeping when the policemen barged into his house. He heard a commotion and went out of the room to see what it was all about, and saw police officers Cresencia, Javonilla and Bergonia, searching the room of his nephew, Chris Tira. He told them to stop searching so that he could contact his father, Ernesto, who in turn, would call the barangay captain. The policemen continued with their search. He was then pulled inside the room and the policemen showed him the items they allegedly found.35
Barangay Kagawad Mario Conwi testified that on March 9, 1998, while he was at Calle Perez, Urdaneta, Pangasinan, Capt. Ludivico Bravo asked to be accompanied to the Tira residence. Capt. Bravo was with at least ten other policemen. As they parked the car at Calle Perez, the policemen saw a man running towards the direction of the ricefields. Kagawad Conwi and some of the policemen chased the man, who turned out to be Nelson Tira. One of the policemen pointed to a sachet of shabu which fell to the ground near Nelson. The policemen arrested him and proceeded to the house of Amadeo Tira to serve the warrant.36 When they reached the house, the other policemen were waiting. He saw Amadeo and Connie Tira sitting by the door of the house in the sala. Thereafter, he and the policemen started the search.37 They searched the first room located at the right side (if facing south),38 and found marijuana, shabu, money and some paraphernalia.39 An inventory of the items seized was made afterwards, which was signed by Capt. Bravo and Ernesto Tira.40
Alfonso Gallardo, Amadeos neighbor, testified that he was the one who constructed the Tira residence and that the house initially had two rooms. The first room was rented out, while the second room was occupied by the Spouses Amadeo and Connie Tira.41 Subsequently, a divider was placed inside the first room.42 He also testified that his house was only three (3) meters away from that of the Tiras, and that only a toilet separated their houses.43 He denied that there were many people going in and out of the Tira residence.44
The Ruling of the Trial Court
The trial court rendered judgment on September 24, 1998, finding Amadeo Tira guilty beyond reasonable doubt of illegal possession of 807.3 grams of marijuana and 1.001 gram of shabu. The decretal portion of its decision is herein quoted:
WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused AMADEO TIRA for Illegal Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III, Sections 16 and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act 7659. The Court sentences Amadeo Tira to suffer the penalty of Reclusion Perpetua and a fine of P1,000,000.00.
The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the marijuana weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government; the disposable lighter and the aluminum foil are likewise forfeited in favor of the government.
The Branch Clerk of Court of this Court is hereby ordered to prepare the mittimus.
The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Amadeo Tira to the National Bilibid Prison with proper escort within fifteen (15) days upon receipt of this Order.45
The trial court upheld the validity of Search Warrant No. 3 issued by Judge Aurora Gayapa. It found Amadeos defense, that the room where the items were seized was rented out to the couple Cris Tira and Gemma Lim, unsubstantiated. It held that Amadeo, as owner of the house, had control over the room as well as the things found therein and that the inner room was a secret and practical place to keep marijuana, shabu and related paraphernalia.46
Amadeo appealed the decision.47
The Case Against Connie Tira
After her arrest, Connie filed a motion to quash search warrant,48 alleging that the police officers who applied for the said warrant did not have any personal knowledge of the reported illegal activities. She contended that the same was issued in violation of Section 4, Rule 126 of the Rules of Court, as the judge issued the search warrant without conducting searching questions and answers, and without attaching the records of the proceedings. Moreover, the search warrant issued was in the nature of a general warrant, to justify the "fishing expedition" conducted on the premises.
On October 26, 1998, the presiding judge ordered Judge Aurora A. Gayapa to forward the stenographic notes of the applicant and the witnesses.49 Connie was arraigned on November 9, 1998, pending the resolution of the motion. She pleaded not guilty to the charge of illegal possession of shabu and marijuana.50 The trial court thereafter issued an Order on November 11, 1998, denying the motion to quash.51 It did not give credence to the allegations of Connie Tira, and found that Judge Gayapa issued the search warrant after conducting searching questions, and in consideration of the affidavit of witness Enrique Milad.
Connie testified that she was engaged in the business of buying and selling of fruits, while her husband was employed at the Glasshouse Trading. One of the rooms in their house was occupied by their three boarders, two male persons and one female.
In the afternoon of March 9, 1998, she and her husband Amadeo were in their house, while their boarders were in their respective rooms. At 2:30 p.m., she was in the kitchen taking care of her one-year-old child. She had other three children, aged eight, four, and three, respectively, who were watching television. Her husband Amadeo was sleeping in one of the rooms. Suddenly, five policemen barged into their house and searched all the rooms. The policemen found and seized articles in the room occupied by one of their boarders. They arrested Amadeo, and her brother-in-law, Nelson Tira, and brought them to the police station. The boarders, however, were not arrested.
Joy Fernandez, a neighbor of the Tiras, lived approximately ten meters away from the latter. Since they had no television, she frequently went to her neighbors house to watch certain programs. In the afternoon of March 9, 1998, she was at the Tira residence watching "Mirasol," while Connie was in the kitchen nursing her baby. Suddenly, about five or ten persons ran inside the house and handcuffed Amadeo Tira.52
The Ruling of the Trial Court
The trial court found Connie Tira guilty beyond reasonable doubt of illegal possession of 807.3 grams of marijuana and 1.001 gram of shabu. The dispositive portion of the decision reads:
WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused CONNIE TIRA for Illegal Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III, Section 16 and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act 7659, the Court sentences Connie Tira to suffer the penalty of Reclusion Perpetua and a fine of
The amount of
The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Connie Tira to the National Bilibid Prisons with proper escort within fifteen (15) days upon receipt of his Order.53
The trial court did not believe that Connie Tira had no knowledge, control and possession of the shabu and marijuana found in the first or inner room of their house. It stressed that Connie and Amadeo Tira jointly controlled and possessed the shabu and marijuana that the policemen found therein. It ratiocinated that it was unusual for a wife not to know the existence of prohibited drugs in the conjugal abode. Thus, as husband and wife, the accused conspired and confederated with each other in keeping custody of the said prohibited articles.54 The court also held that Connie Tiras flight from their house after the search was an indication of her guilt. Connie, likewise, appealed the decision.55
The Present Appeal
In their brief, the appellants Amadeo and Connie Tira assigned the following errors committed by the trial court:
The Court shall resolve the assigned errors simultaneously as they are interrelated.
The appellants contend that the search conducted by the policemen in the room occupied by Chris and Gemma Lim, where the articles and substances were found by the policemen, was made in their absence. Thus, the search was made in violation of Section 7, Rule 126 of the Rules of Criminal Procedure, which provides:
SEC. 7. Search of house, room, or premise, to be made in presence of two witnesses. No search of house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality.
The appellants posit that the articles and substances found by the policemen in their house are inadmissible in evidence, being the fruits of a poisonous tree. Hence, they contend, they should have been acquitted of the crime charged. The appellants further assert that the prosecution failed to prove that they owned the prohibited drugs, and that the same were in their possession and control when found by the policemen. They insist that it cannot be presumed that they were in control and possession of the said substances/articles simply because they owned the house where the same were found, considering that the room was occupied by Chris Tira and his live-in partner, Gemma Lim.
The appellant Connie Tira avers that she never fled from their house after the policemen had conducted the search. Neither was she arrested by the policemen when they arrested her husband.
The appeals have no merit.
Contrary to the appellants claim, appellant Amadeo Tira was present when the policemen searched the inner room of the house. The articles and substances were found under the bed on which the appellant Amadeo Tira slept. The policemen did not find the said articles and substances in any other room in the house:
Appellant Amadeo Tira was not the only witness to the search; Kagawad Mario Conwi and Ernesto Tira, Amadeos father, were also present. Ernesto Tira even led the policemen inside the house. This is evidenced not only by the testimony of Kagawad Conwi, but also by the certification signed by the appellant himself, along with Kagawad Conwi and Ernesto Tira.59
The trial court rejected the testimony of appellant Amadeo Tira that the inner room searched by the policemen was occupied by Chris Tira and his girlfriend Gemma Lim with the following encompassing disquisition:
The defense contention that a couple from Baguio City first occupied the first room, the Court is not persuaded because they did not present said businessmen from Baguio City who were engaged in vegetable business. Secondly, the same room was rented by Chris Tira and Gemma Lim. Chris Tira and Gemma Lim, engaged in banana business, were not presented in Court. If it were true that Chris Tira and Gemma Lim were the supposed lessees of the room, they should have been apprehended by the searching party on March 9, 1998, at about 2:30 p.m. There was no proof showing that Chris Tira and Gemma Lim ever occupied the room, like personal belongings of Chris Tira and Gemma Lim. The defense did not even show proof showing that Chris Tira reside in the first room, like clothings, toothbrush, soap, shoes and other accessories which make them the residents or occupants of the room. There were no kitchen plates, spoons, powder, or soap evidencing that the said room was occupied by Chris Tira and Gemma Lim. Amadeo Tira contended that Chris Tira and Gemma Lim are engaged in banana business. There are no banana stored in the room at the time of the search and both of them were out of the room at the time of the search. And why did not Amadeo Tira supply the police officers of the personal identities and address where they could find Chris Tira and Gemma Lim at the time of the search. If they were banana dealers, they must be selling their banana in the market and they could have pointed them in the market.60
We are in full accord with the trial court. It bears stressing that the trial court conducted an ocular inspection of the house of the appellants, and thus, had first hand knowledge of the layout of the house. Besides, the testimony of the appellant Amadeo Tira, that the inner room was occupied by Chris Tira and Gemma Lim who were not there when the search was conducted, is belied by the testimony of the appellant Connie Tira that the room was occupied by two male and one female boarders who were in the room when the policemen searched it. Thus:
We agree with the finding of the trial court that the only occupants of the house when the policemen conducted their search were the appellants and their young children, and that the appellants had no boarders therein.
Before the accused may be convicted of violating Section 8 of Republic Act No. 6425, as amended by Rep. Act No. 7659, the prosecution is burdened to prove beyond reasonable doubt the essential elements of the crime, viz: (1) the actual possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and, (3) the accused freely or consciously possessed the said drug.62
The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused.63 On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found.64 Exclusive possession or control is not necessary.65 The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.66
Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused.67 Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug.68 Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation.69
In this case, the prohibited and regulated drugs were found under the bed in the inner room of the house of the appellants where they also resided. The appellants had actual and exclusive possession and control and dominion over the house, including the room where the drugs were found by the policemen. The appellant Connie Tira cannot escape criminal liability for the crime charged simply and merely on her barefaced testimony that she was a plain housewife, had no involvement in the criminal actuations of her husband, and had no knowledge of the existence of the drugs in the inner room of the house. She had full access to the room, including the space under the bed. She failed to adduce any credible evidence that she was prohibited by her husband, the appellant Amadeo Tira, from entering the room, cleaning it, or even sleeping on the bed. We agree with the findings and disquisition of the trial court, viz:
The Court is not persuaded that Connie Tira has no knowledge, control and possession of the shabu and marijuana (Exhibits "M," "N," "O" and "P") found in their room. Connie Tira and Amadeo Tira jointly control and possess the shabu (Exhibits "M" and "N") and marijuana (Exhibits "O" and "P") found in the room of their house. It is unusual for a wife not to know the existence in their conjugal abode, the questioned shabu and marijuana. The husband and wife (Amadeo and Connie) conspired and confederated with each other the keeping and custody of said prohibited articles. Both of them are deemed in possession of said articles in violation of R.A. 6425, Section 8, in relation to Section 20.
The Crimes Committed by the Appellants
The trial court convicted the appellants of violating Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended. The Office of the Solicitor General (OSG) asserts that the appellants should be convicted of violating Section 8 of Rep. Act No. 6425, as amended. We do not agree with the trial court and the OSG. We find and so hold that the appellants are guilty of two separate crimes: (a) possession of regulated drugs under Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended, for their possession of methamphetamine hydrochloride, a regulated drug; and, (b) violation of Section 8, in relation to Section 20 of the law, for their possession of marijuana, a prohibited drug. Although only one Information was filed against the appellants, nevertheless, they could be tried and convicted for the crimes alleged therein and proved by the prosecution. In this case, the appellants were charged for violation of possession of marijuana and shabu in one Information which reads:
That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and feloniously have in their possession, control and custody the following:
without first securing the necessary permit/license to posses[s] the same.
CONTRARY TO SEC. 8, in relation to Sec. 20 of R.A. 6425, as amended."70
The Information is defective because it charges two crimes. The appellants should have filed a motion to quash the Information under Section 3, Rule 117 of the Revised Rules of Court before their arraignment. They failed to do so. Hence, under Rule 120, Section 3 of the said rule, the appellants may be convicted of the crimes charged. The said Rule provides:
SEC. 3. Judgment for two or more offenses. - When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.
The Proper Penalties On the Appellants
The crime of violation of Section 8, Article II of Rep. Act No. 6425, as amended, for illegal possession of 807.3 grams of marijuana, a prohibited drug, is punishable by reclusion perpetua to death. Considering that there are no qualifying circumstances, the appellants are sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal Code and are ordered to pay a fine of
Under Section 16, Article III of Rep. Act No. 6425, as amended, the imposable penalty of possession of a regulated drug, less than 200 grams, in this case, shabu, is prision correccional to reclusion perpetua. Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows:
QUANTITY IMPOSABLE PENALTY
Considering that the regulated drug found in the possession of the appellants is only 1.001 grams, the imposable penalty for the crime is prision correccional. Applying the Indeterminate Sentence Law, the appellants are sentenced to suffer an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period as minimum, to three (3) years of prision correccional in its medium period as maximum, for violation of Section 16 of Rep. Act No. 6425, as amended.
IN LIGHT OF ALL THE FOREGOING, appellants Amadeo and Connie Tira are found GUILTY beyond reasonable doubt of violating Section 8, Article II of Rep. Act No. 6425, as amended, and are hereby sentenced to suffer the penalty of reclusion perpetua, and ORDERED to pay a fine of
Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
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