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[G.R. Nos. 147650-52.April 26, 2005]

PEOPLE vs. PEPITO

EN BANC

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated APR 26 2005.

G.R. Nos. 147650-52 (People of the Philippines vs. Rodolfo S. Pepito.)

In People of the Philippines v. Rodolfo S. Pepito, [1] cralaw promulgated on 16 October 2003, the Court affirmed the judgment [2] cralaw of Judge German M. Malacampo of the Regional Trial Court (RTC), Branch 19, of Isulan, Sultan Kudarat finding Rodolfo S. Pepito guilty beyond reasonable doubt of three counts of qualified rape of his own minor daughter Jelyn Pepito, and sentencing him to suffer the penalty of death in each case.

Subsequently, the accused-appellant filed a motion for reconsideration [3] cralaw dated 17 November 2003 on two grounds. First, the accused-appellant alleges that "the prosecution failed to prove his guilt beyond reasonable doubt allegedly despite Jelyn's lack of resistance." Second, the accused-appellant argues that he should not have been meted out the penalty of death but reclusion perpetua, as the prosecution failed to prove the presence of the qualifying aggravating circumstances of minority and relationship.

Required to submit its comment, the Office of the Solicitor General contended that no new issues have been raised in the accused-appellant's motion for reconsideration, which should therefore be denied for being pro forma and of no merit. [4] cralaw

Upon a thorough review of the records of this case, we find no reversible error which would give us cause to disturb the aforementioned Decision. In light, however, of the gravity of the penalty imposed, we find it necessary to nevertheless address each of the issues raised by the accused-appellant.

We understand the first ground for reconsideration to mean that the accused-appellant alleges lack of resistance by the victim as a reason for us to reconsider our Decision.

At the outset, we reiterate that in cases of incestuous rape, moral ascendancy may substitute for force and intimidation. Thus, we have held that:

. . . We have to bear in mind that in incestuous rape, the minor victim is at a great disadvantage because the assailant, by his overpowering and overbearing moral influence, can easily consummate his bestial lust with impunity. As a consequence, proof of force and violence is unnecessary unlike where the accused is not an ascendant or blood relative of the victim. Thus, the failure of the victim to explicitly verbalize, as in this case, the use of force, threat, or intimidation by the accused should not adversely affect the case of the prosecution as long as there is adequate proof that sexual intercourse did take place . . . [5] cralaw

Moreover, the records of this case in fact show that Jelyn did indeed resist the assault against her. With regard to the rape incident on 26 July 1995, the trial court recounted her testimony in this manner:

That she is 18 years old, formerly residing in Barangay Banali, Senator Ninoy Aquino, Sultan Kudarat, and presently under the custody of the DSWD, Cotabato City; that her parents are Rodolfo Pepito and Thelma Pepito; that she is the eldest of the seven children of her parents; that she only finish Grade V and was not able to finish his elementary studies in Grade VI as she abruptly stopped going to school due to the incidents in question that happened to her (witness started crying) when she was allegedly molested and sexually abused by her own father, Rodolfo Pepito, on several occasions; that she further identified her written sworn statement (Exhs. "C" & "C-1") taken in the Provincial Prosecution Office on September 25, 1998; that she, likewise, identified her affidavit (Exhs. "A", "A-1" & "A-2") conducted on her by Judge Osmundo M. Villanueva on the same day, December 16, 1997; that sometime in the evening of July 26, 1995, while she was inside her room at their house in barangay Banali, Sen. Ninoy Aquino, Sultan Kudarat, to sleep/, her father, Rodolfo Pepito, had sexually abused her, that she allegedly struggled by way of trying her best to awaken her brothers and sisters, but she failed, thus:

Q��� How did you struggle?

A���� I tried to struggle in order to awaken my younger brothers and sisters, sir.

Q��� How?

A���� I was to touch my brothers and sisters in order to awaken them, sir.

Q��������� Jovelyn was beside you that night?

A���� Yes, sir.

Q��� In the course of your struggling, was she not awaken?

A���� He was already transferred a little bit far from me, sir.

Q��� Who moved her away a little farther (sic) from you?

A���� My father, sir.

Q��� Was she not awaken?

A���� She just moved but she was not awaken, sir.

Q��� How about your brother Reyno, who was then about 14 years old at that time was he not awaken as you were struggling?

A���� None, sir.

Q��� How about Ronilo?

A���� He just moved, sir.

Q��� You are telling the Honorable Court that despite of your struggle against the assault of your father no one among your brothers and sisters were awaken that night?

A���� It was only Jemaydie who cried, sir. (TSN, p. 17, April 21, 199). [6] cralaw

Jelyn next remembers having been violated by her father on her youngest sister's birthday. As she related in the trial court:

Q.�� Now, in the evening of June 9, 1996, where were you?

A.��� I was in our house in Banali.

Q.�� What was the occasion in your house on June 9, 1996?

A.��� That was the birthday of my younger sister Jonaide.

Q.�� How old is Jonaide on June 9, 1996?

A.��� Four years old, sir.

Q.�� Did your family celebrate the birthday of your sister Jonaide?

A.��� No, sir.

Q.�� In the evening what time did you go to bed?

A.��� I sleep early, sir.

Q.�� In the evening of June 9 1996 in Banali, do you remember of anything unusual that happened again?

A.��� Yes, sir.

Q.�� What happened?

A.��� He again molested me, sir.

Q.�� Who molested you?

A.��� My father, sir.

Q.��������� When you said my father you are referring to the accused Rodolfo Pepito?

A.��� Yes, sir.

Q.�� What was that repeated by him on you?

A.��� He again raped me, sir.

Q.��������� Where did you sleep that evening?

A.��� On the same room where I sleep, sir.

Q.�� With whom were with you in that room?

A.��� My brothers and sisters.

Q.�� How did you know that this accused your father entered again your room?

A.��������� Because there was someone who was groping me (kap-kap), sir.

Q.�� Was there any light inside the room?

A.��� Our light was put off.

Q.�� Was it dark inside the room?

A.��� Yes, Your honor.

Q.�� Was there a door in your room as of June 1996?

A.��� Yes, Your Honor.

Q.�� Was there a curtain placed to cover the entrance door?

A.��� Yes, Your Honor.

Q.�� In other words, anyone can just enter your room because there was no shutter?

A.��� Yes, sir.

Q.��������� Where was the first touch by that someone groping on you?

A.��� On my legs, sir.

Q.�� After that what happened?

A.��� I felt he was raising my t-shirt, sir.

Q.�� What were you wearing that evening?

A.��� T-shirt, sir.

Q.�� What about your underwear, if you have any?

A.��� I am wearing short pants and panty, sir.

Q.�� After you felt that your legs were being touched by that someone what else happened?

A.��� He again mounted on top of me, sir.

Q.�� What happened to your short pants and your panty?

A.��� He threw it away, sir.

Q.�� Who removed your pants and panty?

A.��� He is the one, sir.

Q.�� Did you recognize who was that person who entered again your room?

A.��� Yes, sir.

Q.�� Who was that person?

A.��� My father, sir.

Q.�� You are referring to the accused Rodolfo Pepito?

A.��� Yes, sir.

Q.�� What else did he touch on your body?

A.��� My breast, sir.

Q.�� What else?

A.��� My private part, sir.

Q.�� Now, you said accused Rodolfo Pepito again mounted on you did you not complain or did you not resist?

A.��� I resist, sir, but he was holding both my hands. [7] cralaw

Finally, Jelyn testified as to last time her father molested her:

Q.�� What happened on that evening of August 30, 1997?

A.��� He again did it to me, sir.

Q.�� Who did that to you again?

A.��� My father, sir.

Q.�� You are referring to Rodolfo Pepito the accused in this case?

A.��� Yes, sir.

Q.�� What did he do again to you?

A.��� He again mounted on me, sir.

Q.�� What time was that?

A.��� About 10:00 o'clock in the evening, sir.

Q.��������� Where was your mother?

A.��� She was also there.

Q.�� How far was your mother from you?

A.��� From here about half meter.

Q.�� Was she beside you?

A.��� About half meter, Your Honor.

Q.�� You said that hut was too small for the four of you. You, Jonaide, your mother and father. How did you sleep on that hut?

A.��� That hut was a one room affair that would accommodate when you lay down to sleep.

Q.�� That night who is next at you?

A.��������� Jonaide, sir.

Q.�� After Jonaide who is next?

A.��� My mother.

Q.�� After your mother?

A.��� My father.

Q.�� Do you mean to tell us that evening of August 30, 1997, your father got up and went on the other side where you were sleeping?

A.��� Yes, sir.

Q.�� What were you wearing at that time?

A.��� At that time I was wearing a t-shirt and long pants.

Q.�� And when your father got up and went besides you what was the first thing he did?

A.��� He removed my long pants, sir.

Q.�� What about your underwear?

A.��� Yes, sir.

Q.�� Of course you were awakened by the act of your father removing your long pants and underwear, what did you do when you felt that your father was removing your underwear?

A.��� I pushed him, sir.

Q.�� What happened after you pushed him?

A.��� He stood up and he boxed me, sir.

Q.�� After boxing you what happened?

A.��� I bumped a post and I lost consciousness.

Q.��������� Before you lost consciousness did you not endeavor to reach your mother who is just beside Jonaide and wake her up?

A.��� I was able to touch Jonaide, sir.

Q.�� Was Jonaide able to wake up?

A.��� Yes, sir.

Q.�� What did Jonaide do?

A.��� I asked help from Jonaide and that Jonaide bite and even kicked him.

Q.�� What did your father do when Jonaide bite and kicked him?

A.��� He used me again, sir, or sexually abused me.

Q.�� Was your father in the act of fucking you when Jonaide bite him at the back and kicked him?

A.��� Yes, sir.

Q.�� What about your mother?

A.��������� Nothing, sir.

Q.�� Do you feel your mother was also awakened that time?

A.��� Yes, sir.

Q.�� What did she do?

A.��� She was sleeping, sir.

Q.�� She did not notice what your father was doing and what as Jonaide was doing?

A.��������� When my father pushed Jonaide that is the time my mother notice[d] that my younger sister was on the other side.

Q.�� Your father pushed Jonaide away while he was on the act of fucking you?

A.��� Yes, sir.

Q.�� Now, when your mother woke up she saw your father in the act of sexually abusing you?

A.��� Yes, sir.

Q.��������� Because he was still in the act of sexually abusing you?

A.��� Yes, sir.

Q.�� What did your mother do when she saw that your father was sexually abusing you?

A.��� My mother went to the other side and my father told her not to go near him.

Q.�� And when your father said that what was he doing?

A.��� Still using me, sir.

Q.�� You mean, your father can afford to do that to you in the presence of your mother?

A.��� Yes, sir.

Q.�� Why?

A.��������� Because my mother was afraid, sir.

Q.�� Afraid of your father?

A.��� Yes, sir.

Q.�� Why was [s]he afraid of your father?

A.��������� Because my father has a pistol, sir.

Q.�� Has your mother experience being hit by your father?

A.��� Yes, sir. [8] cralaw

The trial court held that:

. . .(W)hile it appeared that Jelyn Pepito did not apparently put up a determined resistance, that was not, however, necessary when the offender is the father of the girl. A sexual act between a father and daughter is so revolting that it would be hard to believe that the complainant would have submitted thereto if her will to resist had not been overpowered. Besides, the kind of force or violence, threat or intimidation as between father and daughter need not be of such nature and degree as would be required in other cases, for the father in this instance exercises strong, moral and physical influence, and control over his daughter.. Thus, in several cases of rape, the Supreme Court had held that in rape committed by a father against his own daughter, the former's moral ascendancy and influence over the latter substitutes for violence or intimidation. (People v. Casil, 241 SCRA 285; People v. Matrimonio, G.R. No. 82223-24, November 13, 1992, People v. Burce, 269 SCRA 293; People v. Bayona, G.R. Nos. 133343-44, March 2, 2000). [9] cralaw

We upheld the trial court, and stated that "(s)uch theory of accused-appellant is unavailing, as it is belied by the testimony of Jelyn that she struggled against his sexual advances by trying to shout and attempting to awaken her siblings who were with her in the room. Undoubtedly, such resistance negates consent. Besides, it is highly inconceivable that Jelyn would simply yield to the bestial desires of her own father had not her resistance been overpowered. Contrary to accused-appellant's contention, failure to shout or offer tenacious resistance does not make voluntary the victim's submission to his criminal acts considering that he was her father who has great moral ascendance over her. Resistance is not an element of rape and the absence thereof is not tantamount to consent. Threat or intimidation employed by rapists against their victims, especially when they are minors is such as to easily force the latter into submission. Physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter yields herself against her will because of fear for her life and personal safety." [10] cralaw

The foregoing testimony unequivocally shows that the accused-appellant's allegation that "the prosecution failed to prove his guilt beyond reasonable doubt despite the victim's lack of resistance" is unavailing.

The accused-appellant next argues that he should not have been meted out the penalty of death but reclusion perpetua, as the prosecution failed to prove the presence of the qualifying aggravating circumstances of minority and relationship.

The first paragraph of Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, provides that the death penalty shall be imposed if the crime of rape is committed "when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step�parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim."

To justify the imposition of the death penalty in cases of this nature, the minority of the victim and her relationship with the offender, which are special qualifying circumstances, must be alleged in the complaint or information and proved by the prosecution during the trial by the quantum of proof required for conviction; [11] cralaw otherwise, the accused-appellant can only be held liable for the crime of simple rape penalized by reclusion perpetua. [12] cralaw

The relationship between Jelyn and the accused-appellant has been adequately established. It was alleged in all three informations, [13] cralaw stipulated and admitted to during pre-trial, [14] cralaw and, in the course of the trial, testified to by the victim and admitted by the herein accused-appellant and his wife, Jelyn's own mother, who testified against her daughter as a witness for the defense.

Jelyn unequivocally identified her father as her assailant when she was violated on 26 July 1995 thus:

Q.�� In the late evening while you were sleeping do you remember of anything unusual that happened?

A.��� Yes, sir.

Q.�� What happened?

A.��� There was somebody who entered our room, sir.

Q.�� What did that somebody do when he entered your room?

A.��� He entered our room I felt that he was touching parts of my body.

Q.�� Was that a man or a woman?

A.��� A man, sir.

Q.��������� Which part of your body that was being touched by that man?

A.��� My breast, my private part.

Q.��������� When you felt that somebody or a man was holding or smashing your breast then he was holding your private part of vagina what did you do?

A.��� I was about to struggle, sir, but that man advise[d] me no to move.

Q.�� Were your brothers and sisters sleeping at that time?

A.��� Yes, sir.

Q.�� Did you recognize that man?

A.��� Yes, sir.

Q.�� Who was that man?

A.��� My father, sir.

COURT:

Q.�� What do you mean that you were about to struggle?

A.��� I was about to shout but he covered my mouth with his hands, Your Honor, and prevented me to shout.

PRO. ALAMADA:

Q.��������� Where was your mother at that time?

A.��� She is in the other room, sir.

Q.��������� When you said he was your father you are referring to Rodolfo Pepito the accused in this case?

A.��� Yes, sir.

Q.�� Will you please point to him if he is in the courtroom?

A.��� He is the one, sir.

Witness pointing to a person sitting on the bench for the accused and who when asked his name he said his name is RODOLFO PEPITO. [15] cralaw

Likewise, as to the rape which occurred on 9 June, 1996, Jelyn again identified her father in the following manner:

Q.�� In the evening of June 9 1996 in Banali, do you remember of anything unusual that happened again?

A.��� Yes, sir.

Q.�� What happened?

A.��� He again molested me, sir.

Q.�� Who molested you?

A.��� My father, sir.

Q.��������� When you said my father you are referring to the accused Rodolfo Pepito?

A.��� Yes, sir.

Q.�� What was that repeated by him on you?

A.��� He again raped me, sir. [16] cralaw

Finally, with respect to the incident on 30 August 1997, Jelyn stated clearly that:

Q.�� What happened on that evening of August 30, 1997?

A.��� He again did it to me, sir.

Q.�� Who did that to you again?

A.��� My father, sir.

Q.�� You are referring to Rodolfo Pepito the accused in this case?

A.��� Yes, sir.

Q.�� What did he do again to you?

A.��� He again mounted on me, sir.

Jelyn's testimony is expressly and clearly admitted by her mother and, more importantly, by the accused. Jelyn's mother testified in the following manner:

ATTY. GUERRERO:

Q:�� You said that you are married, could you tell us who is your husband?

A:��������� Rodolfo Pepito, Sir.

Q:�� How many children do you have with Pepito, Rodolfo?

A:��� We have seven children, sir.

Q:�� Who are they?

A:��� Jelyn, Rieno, Romy, Jovelyn, Joemarie, Jenevie and Ronillo. [17] cralaw

The accused-appellant has consistently admitted, from pre-trial onwards, that Jelyn is his daughter.

Q:�� On August 30, 1997 where were you?

A:��� I was in Kalibuhan, sir.

Q:�� Were there members of your family that came to you at Kalibuhan on that day August 30, 1997?

A:��� My wife, my children and some of my nephews and nieces, sir.

Q:�� Who among your children that went to Kalibuhan?

A:��� Jelyn, Ronillo, Romy, Jovelyn, Jenevie, my wife and my brother-in-law, sir. [18] cralaw

...

Q.�� That August 30, 1997 when Ronillo celebrated his birthday, all your children including Jenevie were all there?

A.��� Only two who were not around, they were Reno and Jenevie.

Q.�� So, only five of them who were there?

A.��� Yes, sir.

COURT:

Q.�� Jelyn was one of them?

A.��� Yes, your honor.

FISCAL ALAMADA:

Q.�� Jelyn is the eldest of your children?

A.��� Yes, sir. [19] cralaw

With respect to the victim's minority, we return to our ruling in People v. Pruna, [20] cralaw where we set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance:

1.������ The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.

2.������ In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3.������ If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule130 of the Rules on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

4.������ In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused.

5.������ It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

6.������ The trial court should always make a categorical finding as to the age of the victim.

In People v. Corial, [21] cralaw we had occasion to go through the requirements set forth in Pruna. We reiterated the first three paragraphs of the Pruna guidelines, thus:

.... The primary evidence of age of the victim is her birth certificate. Age may also be proven by such authentic documents as a baptismal certificate and school records only in the absence of a birth certificate. If the aforesaid documents are shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient but only under the following circumstances: a) If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b) If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c) If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

However, since the prosecution in Corial was unable to offer the victim's certificate of live birth or any similar authentic document in evidence, the trial court relied on the sworn statement of Marietta Corial, the victim's mother, who attested to the date of her daughter's birth. Marietta Corial, however, did not testify in open court, as she was alleged to be mentally ill. We there held that "(s)uch sworn statement was thus inadmissible in evidence under the hearsay rule, and unless the affiant had been placed on the witness stand, the admission of the mere affidavit and the conviction of accused-appellant on the basis thereof would violate the right of the accused to meet witness face to face. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age under the circumstances heretofore mentioned, the complainant's sole testimony can suffice provided that it is expressly and clearly admitted by the accused; to repeat, "provided that it is expressly and clearly admitted by the accused .'' [22] cralaw (emphasis supplied)

In the instant case, the minority of the victim was also alleged in all three informations, [23] cralaw stipulated and admitted to during pre-trial, [24] cralaw and, in the course of the trial, testified to by the victim and admitted by the herein accused-appellant. Jelyn testified thus:

Q.�� In the year 1995 you were then 15 years old?

A.��� Yes sir. [25] cralaw

On 20 April 1999, the accused-appellant testified as to her minority thus:

Q.       Do you know what year your daughter was born?

A.� She was born on August 22, 1980, sir. [26] cralaw

From the foregoing, there is no doubt in our minds that when the three incidents of rapes were committed on 26 July 1995, 9 June 1996, and 30 August 1997, Jelyn was still a minor under eighteen (18) years of age.

In keeping with the guidelines we set forth in People v. Pruna, as interpreted in People v. Corial, the foregoing testimony of the victim, as expressly and clearly admitted by the herein accused-appellant, warrants the imposition of the death penalty, contrary to the assertions of the accused-appellant in the instant motion.

We are very much aware of the gravity of the penalty imposed in this case, and we have gone over every page in the records; however, given the circumstances of this case, the imposition of the supreme penalty of death is truly unavoidable.

WHEREFORE, premises considered, the instant motion is hereby denied for lack of merit.

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO
Clerk of Court



Endnotes:

[1] cralaw G.R. No. 147650-52, 16 October 2003.

[2] cralaw Records, pp. 117-149.

[3] cralaw Rollo, pp. 206-209.

[4] cralaw Rollo, pp. 212-216.

[5] cralaw People v. Cea, G.R. Nos. 146462-63, 14 January 2004, citing people v. Servano, G.R. Nos. 143002-03, 17 July 2003.

[6] cralaw Judgment, supra, Note 2, pp. 119-121.

[7] cralaw TSN, 20 April 1999, pp. 3-7.

[8] cralaw TSN, 20 April 1999, pp. 12-18.

[9] cralaw Rollo, pp. 49-50.

[10] cralaw Citations omitted; Rollo, pp. 196-197.

[11] cralaw People v. Cea, supra, Note 5.

[12] cralaw People v. Corial, G.R. No. 143125, 10 June 2003, 403 SCRA 577, citing People v. Flores, G.R. No. 130713, 20 January 2000, 322 SCRA 779.

[13] cralaw Rollo, pp. 5-10.

[14] cralaw Minutes of the Proceeding during the Pre-trial Stage of the Above-entitled Cases, Records, pp. 38-39; Pre-trial Order dated 16 March 1999, Records, pp. 45-47.

[15] cralaw TSN, 20 April 1999, pp. 5-13.

[16] cralaw TSN, 20 April 1999 at 2:00 in the afternoon, pp. 4-5.

[17] cralaw TSN (Thelma Pepito), 16 July 1999, p. 2.

[18] cralaw TSN (Rodolfo Pepito), 16 July 1999, p. 11.

[19] cralaw TSN (Rodolfo Pepito), 16 July 1999, pp. 15-16.

[20] cralaw G.R. No. 138471, 10 October 2002, 390 SCRA 577, 604.

[21] cralaw Supra, Note 12, p. 588.

[22] cralaw Id., pp. 588-589.

[23] cralaw Rollo, pp. 5-10.

[24] cralaw Minutes of the Proceeding during the Pre-trial Stage of the Above-entitled Cases, Records, pp. 38-39; Pre-trial Order dated 16 March 1999, Records, pp. 45-47.

[25] cralaw TSN, 16 July 1999, p. 19.

[26] cralaw TSN, 20 April 1999, p. 3.


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