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[G.R. No. 142861.August 27, 2002]
PEOPLE vs. OMBRESO
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated 27 AUG 2002.
G.R. No. 142861(People of the Philippines v. Rogelio Ombreso y Mutia @ "Rowing".)
Accused-appellant seeks reconsideration of the Court's decision of December 19, 2001 finding him guilty of rape and sentencing him to death. Accused-appellant apparently has abandoned his original stance that he is innocent of the crime charged against him and now contends that, if at all, he is liable for attempted rape only on the following grounds: (1) private complainant's testimony that she suffered pain as accused-appellant several times tried to penetrate her genitalia is insufficient to support the Court's finding that the rape was consummated; (2) child victim Lorlyn Dimalata testified that the sex organ of accused-appellant "did not enter" her genitalia; (3) the medical findings showthat private complainant did not sustain hymenal laceration/s; and (4) the Court in this case should have followed the ruling in People vs. Mariano (G.R. Nos. 135511-13, Nov. 14, 2001).
The Solicitor General filed his comment, opposing accused-appellant's motion.
The Court finds accused-appellant's motion to be without merit.
Accused-appellant claims that "the testimony of Lorlyn that she felt 'pain' [in her genitalia] is not sufficient to prove carnal knowledge."He contends that there must be proof that the insertion of accused-appellant's sex organ into the victim's genitalia preceded the pain she felt, otherwise a ruling finding the accused liable for consummated rape based on the "victim's testimony of 'pain' would open the floodgates to the possibility of [the prosecution] manufacturing testimonies asserting pain [in the victim's sex organ] to assure the conviction of the suspected rapist." In support of his contention, accused-appellant cites the rulings of this Court in People vs. Palicte (229 SCRA 543 (1994)) and People vs. Gabris (258 SCRA 663 (1996)).
It is true that mere allegation that the victim felt pain in her genitalia during the sexual assault is insufficient to support a conviction for rape. As pointed out in the decision, however, the conviction in this case of accused-appellant for consummated rape is based not only on such claim of the complainant but also on her demonstration in open court, with the use of an illustration of the female genitalia, of the exact spot penetrated by accused-appellant's erect penis. This spot is the "upper part of her vaginal opening" or labia. majora of the pudendum, the mere touching of which by the male organ constitutes consummated rape.As stated in the decision:
"[A]though there was no full penetration, and therefore no laceration of the hymen as the examining physician said, accused-appellant's penis nonetheless touched the upper- part of complainant's vaginal opening. As accused-appellant repeatedly pushed his organ into complainant's vagina, the latter suffered pain. Unlike in Campuhan, where this Court found that accused did not attain erection, and his penis was flaccid, here, accused-appellant's penis, according to the victim, was erect and, for a long time, accused appellant tried to make a full penetration. This was no mere "stroking" or "grazing of the surface of the female organ," as this Court described what took place in the Campuhan case. What happened in this case was a penetration, albeit not a full one because of the relative smallness of complainant's vagina. Although the victim many times said "just here" in pointing to the spot in her genitalia which was touched by accused appellant's male organ, "just here," as she demonstrated, meant the "upper part of [her] vaginal opening." It was . . . consummated rape which accused-appellant committed (Decision, p. 17).
This feature of the case distinguishes it from the decision in People v. Quarre, G.R. No. 140729-30, Feb. 15, 2002. Thus, although the two victims in Quarre, daughters aged 15 and 12, of the accused testified that one felt pain in her genitalia and that the other felt her father's organ, during the assault, none of them was made to point out the exact spot penetrated by the accused's sex organ.Furthermore, the 15 year old daughter in that case, who testified that she felt pain in her genitalia during the assault, was also "fingered" by the accused, thus raising the possibility that the pain was caused by something other than the accused's attempt to penetrate her.Unlike in this case, no proof was presented in Quarre to show that the accused had an erection when he assaulted the victims, which fact was also taken by the Court as possibly negating the consummation of the rape.
Indeed, in cases of child rape victims such as the six-year old complainant in this case, a demonstration such as the one described above reinforces the conviction that the victim knows what she is testifying about:An inexperienced female would not be able to talk about the sexual act intimately and can easily be found out if she had just been instructed as to what to say in court.
Neither is there merit in accused-appellant contention that -
"[T]he demonstration done in the present case could not be considered as credible since the prosecuting Fiscal merely made use of the thumb and index finger in illustrating the female genitalia. Furthermore, Lorlyn is too young to be considered as capable of fully comprehending about human sexuality, much more the human anatomy. Therefore, when Lorlyn pointed the alleged spot where the penis of the accused-appellant penetrated, there is no certainty that she fully understood her action when the Fiscal asked her to demonstrate the same" (Motion for Reconsideration, p. 8).
The victim, young as she was, could not have indicated the spot in her genitalia in which accused-appellant's penis made contact unless she was telling the truth. Such fact, in addition to the circumstance that accused-appellant's penis was erect when he repeatedly tried to penetrate her for which reason she felt pain in her parts, proves that the rape was consummated.
Nor are the rulings in Palicte and Gabris supportive of accused-appellant's claim. To the contrary, the ruling in Palicte that the rape was consummated applies to this case because, as stated in Palicte, the victim's testimony that she felt pain as a consequence of accused-appellant's repeated attempt to insert his sex organ into her genitalia could be none other than the result of the penile penetration sufficient to constitute rape (Decision pp. 18-19; People v. Palicte, supra at 547-548). Similarly, the nine-year old complainant in Gabris testified, as in the case of complainant in this case, that when the accused tried to insert his sex organ in her genitalia, she felt pain.
The other grounds raised in accused-appellant's motion for reconsideration have already been passed upon in the decision of December 19, 2001 (pages 17-20) and the Court finds no reason to consider them again in this resolution.
For the foregoing reasons, the Court RESOLVED to DENY with FINALITY accused-appellant's motion for reconsideration for lack of merit.
Two members of the Court maintain their dissents in this case.
Sandoval-Gutierrez, J., is on leave.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court
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