PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROLDAN CARRERA, ACCUSED-APPELLANT.
QUIJANO-PADILLA, J.:
Accused-appellant Roldan Carrera (“appellant Carrera”) was charged in the following information, viz:
“That on or about June 13, 2004 in the Municipality of Barotac Viejo, Province of Iloilo, Philippines and within the jurisdiction of this Honorable Court, the above-named accsed, by means of force, threat or intimidation, with lewd design, did then and there wilfully, unlawfully and feloniously commit an act of sexual assault on the victim [AAA][2] by inserting his finger on her vagina against her will and consent.
CONTRARY TO LAW.”[3]
When arraigned, appellant Carrera pleaded not guilty to the charge. Pre-trial was conducted and, thereafter, trial ensued.
To establish the elements of the crime as charged, the prosecution presented the testimonies of the victim AAA,[4] AAA’s mother,[5] PO2 Rubie Hubo,[6] and Dr. Aimee Icamina.[7] The gist of their testimonies is summarized, thus:
In the rainy evening of June 13, 2004, at around 7:00, AAA was walking on her way home from a tailor shop. When she was about to reach their house at about ten (10) meters away, appellant Carrera suddenly came out from a dark portion of the street and waylaid AAA. Upon recognizing that it was appellant Carrera who appeared in front of her, AAA asked him whether there was any problem, and even invited him to eat supper at their house. AAA recognized appellant Carrera because the latter had worked as a carpenter when their house was constructed.[8]
Appellant Carrera then uttered to AAA “Hipos karon, patyon ta” (Quiet! Or else I will kill you). He then grabbed AAA’s arm and forcefully dragged her toward a church. When the two reached the left side part of the church, AAA being dragged there, appellant Carrera pushed AAA to the ground. She fell on the ground face down, so he immedaiately pinned her by placing his knees on her back and by holding her left arm. Appellant Carrera, then, with one hand pulled down AAA’s garterized shorts and panty while she was pinned down.[9]
While AAA was pinned down by appellant Carrera, he inserted his finger in her vagina against her will. While doing this, he also kissed AAA along her ears and her face. AAA struggled, but appellant Carrera overpowered her. She tried to kick and box him but because of her position, she was unable to reach him. She shouted for help, but the heavy rains drowned her voice.[10]
AAA continued struggling and crawling, and when appellant Carrera loosened his hold on her arm, she was able to move both her hands and was able to break free.[11] Upon this chance, AAA ran toward their house half naked, without any underwear.[12]
When AAA arrived home, her mother was shocked when she saw her daughter without any underwear, with blood on her legs and mud all over her body. So, AAA’s mother lost no time to go to the nearby police station, and there she reported the incident.[13]
AAA submitted herself for medical examination the following day. Dr. Aimee Icamina found fresh and complete hymenal laceration in AAA’s genitalia, and she issued a Medico-Legal certificate[14] stating:
“Physical Findings:
External Genitalia
(+) fresh complete hymenal lacerations at 3 & 7 o’clock position;
(+) fresh laceration fourchette.
Impression: Disclosure of sexual abuse. Medical evaluation shows definite evidence of abuse or sexual contact.”[15]
For his defense, appellant Carrera presented himself as witness[16] corroborated by the testimonies of Ananias Balleras,[17] Jovan Cartagena,[18] and Nancy Vistal.[19] The version of their defense mainly centered on alibi and denial.
According to appellant Carrera, he was at Brgy. Sto. Tomas Barotac Viejo, Iloilo, the place where he was residing at the time of the commission of the crime. He narrated that at daytime of January 13, 2004, he went to Dumarao, Capiz to attend a burial of a relative and left the place at around 3:00 in the afternoon.[20] He then arrived at Barotac Viejo Terminal at around 5:00 in the afternoon. From the terminal he boarded a single motorcycle driven by Jovan Cartagena, who drove him home to Brgy. Sto. Tomas.[21] Upon reaching Brgy. Sto. Tomas, he stopped by a store and had a drinking spree with some friends. After drinking, he, together with a friend, Ananias Balleras went home by foot.[22] Upon arriving home, he was seen by Nancy Vistal, his sister-in-law. He took his dinner and thereafter went to sleep at 7:30 in the evening. While he was in deep slumber, he was suddenly awakened by the police. The police then informed him that there was a complaint against him. So, the police brought him to the police station of Barotac Viejo, where he was detained. He also found, to his surprise, that his brother, Rodeo Carrera, was also being detained there because the latter was also one of the suspects. His brother was later on released when AAA pointed at appellant Carrera as the perpetrator.[23]
After hearing the parties’ respective evidence, the trial court gave more credence and weight on the prosecution’s evidence and found that the defense of alibi and denial by the accused weak. The trial court found that the elements of the crime to have been established beyond reasonable doubt. It did not give weight on the evidence of the defense because it is not physically impossible for appellant Carrera to be at the scene of the incident considering the fact that the distance between Brgy. Sto. Tomas and the Poblacion was only a thirty-minute drive through a motorcycle. It further underscored that there could be no mistake in the identification by AAA of appellant Carrera as the perpetrator because the two had already known and seen each other prior the incident. Thus, the trial court concluded that appellant Carrera’s bare denial cannot outweigh AAA’s affirmative testimony.
As such, the trial court ruled, thus:
“WHEREFORE, the court hereby finds the accused Roldan Carrera guilty beyond reasonable doubt of the crime of Rape by Sexual Assault defined and penalized under Art. 266-A (2) of the Revised Penal Code and sentences the said accused an indeterminate prison term ranging from four (4) years, two (2) months, and one (1) day of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum, together with the accessory penalty provided by law, and to pay the costs.
SO ORDERED.”[24]
Aggrieved, appellant Carrera filed this appeal assigning to the trial court the following errors:
1. “THE HONORABLE REGIONAL TRIAL COURT HAS ERRED IN FINDING THE ACCUSED GUILTY OF VIOLATION OF THE CRIME OF RAPE BY SEXUAL ASSAULT DEFINED AND PENALIZED UNDER ARTICLE 266-A(2) OF THE REVISED PENAL CODE;
2. THE HONORABLE REGIONAL TRIAL COURT HAS FAILED TO CONSIDER THE ABSENCE OF FORCE, THREAT OR INTIMIDATION AT THE TIME OF OR ON THE OCCASION OF THE ALLEGED SEXUAL ASSAULT.”[25]
In his Brief,[26] appellant Carrera raised the following issues: a) whether or not there was force, threat, or intimidation at the time of of or on the occasion of the alleged sexual assault; b) whether or not the element of voluntariness on the part of private complainant AAA was absolutely lacking.[27]
He then argued that the prosecution failed to prove actual force, threat or intimidation was used in committing the alleged sexual assault. As bases of this conclusion, he cites the following:
1. The prosecution failed to prove that appellant at that time was carrying any deadly weapon or any object which can be used as to produce fear, and that it failed to prove any actual threatening words or intimidating words uttered to AAA by the appellant at the very time of or on the occasion of the alleged sexual assault;[28]
2. It is highly improbable for AAA not to immediately make an outcry against an unarmed accused when she had every opportunity to do so; and,[29]
3. AAA, who was at that time already twenty-seven years old is matured enough as to be easily succumbed, threatened, intimidated in the absence of any weapon or harmful object employed against her, and that she should have moral ascendancy over the appellant because the latter was employed by her family as a carpenter.[30]
Appellant Carrera likewise proffered the following arguments to establish that voluntariness on the part of AAA was present, thus:
1. The possibility of being fingered with the consent of the victim is possible as testified by the Dr. Aimee Icamina who examined the victim;[31]
2. The medical findings did not show any bruise, abrasion, injury on any part of AAA’s body, thus no actual force was employed;[32]
3. There was no indication that AAA did her very best to resist the accused in order to protect her honor considering that she did not see to it that her shorts and panty would not be removed by tightening both her legs and by holding the same firmly;[33]
4. The shorts and panty of the victim was not even torn or damaged when the same was alleged to have been grabbed and pulled down from her;[34]
5. AAA did not testify that she employed physical attack against the appellant to show her resistance, and that this absence of resistance is shown by the absence of any bruise or injuries on her hands and body;[35] and,
6. It is quite improbable and contrary to human experience for rape to occur on the street where the crime was allegedly committed because at that time the street was busy because of the fiesta.[36]
For the prosecution, the Office of the Solicitor General’s (OSG) Brief[37] maintained that the elements of the crime of rape by sexual assault were established beyond doubt. It underscored that the AAA’s testimony to prove that force was employed in the commission of the crime, and that AAA’s resistance was futile because the appellant overpowered her. It then reiterated that appellant’s alibi cannot be given weight on the face of AAA’s positive identification.
We now resolve.
We find no merit in appellant Carrera’s appeal.
Appellant Carrera’s brief as previously mentioned centered on the absence of the elements of the crime and that the same elements were not completely established by the prosecution beyond reasonable doubt.
In gist, appellant’s arguments focused on the absence of force or intimidation and the absence of evidence showing absolute absence of voluntariness.
We, however, find that, based on AAA’s categorical and straightforward testimony, the elements of rape by sexual assault were established beyond reasonable doubt.
The elements of rape by sexual assault are:
“(1) That the offender commits an act of sexual assault;
(2) That the act of sexual assault is committed by any of the following means:
(a) By inserting his penis into another person’s mouth or anal orifice; or
(b) or any instrument or object, into the genital or anal orifice of another person.
(3) That the act of sexual assault is accomplished under any of the following circumstances:
(a) By using force or intimidation;
xxx.”[38]
Very clear from AAA’s testimony that appellant Carrera committed an act of sexual assault on her against her will by inserting his finger into her vagina, with the use of force.
The force employed and the sexual act committed was clearly recounted by AAA in her testimony, thus:
“Pros. Con-el:
Q: At that time when you were approaching your house at a distance of about ten (10) meters, can you tell the court if there was any unusual incident that happened to you?
A: While I was walking with umbrella considering that it was raining, suddenly a man just surfaced from my side and then went directly in front of me.Q: What else did that man do to you?
A: When he was right in front of me I was able to identify him immediately and I said “What is the problem? Come to our house for supper.”Q: What did he answer if he answered anything?
A: He said, “Quite (sic), I will kill you”.Q: After that what did he do if he did anything to you?
A: He immediately got hold both my arms and held them very tight and he throw (sic) me at the other side of the road.Q: After that what happened?
A: I fell to the ground face down and he immediately placed himself behind me with is knees placed on my back then he immediately pulled down my shorts and panty.Q: Were your panty and shorts totally taken off by the accused?
A: Yes, sir.Q: After that what happened when the accused have already totally taken off your shorts and panty?
A: He fingered me at the same time kissing me. He kissed me along my ears and the rest of my face while still in that position.xxxx
xxxx
Q: You said that you were fingered and kissed by the said accused. How many times did he do that to you?
A: I was not able to count because during that time I was struggling and I was trying to free myself but he was very strong. I was thinking of boxing him or anything that I can do to free myself.xxxx
xxxx
Q: You said that the incident happened in front of the 7th Day Adventist Church. Can you tell the Honorable Court if aside from this church there are some other houses around?
A: Yes, sir.Q: What was the distance of these houses from the scene of the incident?
A: The distance of this church to our house is about ten (10) meters and across this church is the house of Atty. Vencer which is also about ten (10) meters away.Q: Did it not occur to your mind to ask for help by shouting to the neighbors around?
A: I did shout to the top of my voice but they cannot hear because the rain was pouring heavily.Q: In the act of struggling in order to free yourself from the hold of the accused, can you tell the court if you were able to free yourself from the hold of the accused?
A: Yes, sir I crawled. I really tried to free myself but I really find (sic) it hard because he was on top of me, but later I was able to free myself.Court:
Q: How were you able to free yourself for a period of ten (10) minutes?
A: He was kneeling behind me with his left hand holding firmly my left arm and his right hand at my anus and to my vagina, but later he loosened his hold on my left arm and I continued to struggle and move both my arms and later I succeeded in freeing myself, Your Honor.xxxx
xxxx.”[39]
There is, thus, no merit on appellant’s arguments that there was no evidence to prove that he, at that time, was carrying any deadly weapon or any object which can be used to produce fear, and that no threatening words was used by him. What is essential is that force was employed to carry out the crime. The grabbing of the victim’s arm, the dragging and the pinning down of her body are clearly force that the appellant employed in order to commit the crime.
We note, moreover, that the victim was pinned down with her face toward the ground, thus this act alone is the force that appellant used to commit the sexual assault. This physical force is enough. Intimidating and threatening words need not accompany the use of force. Moreover, the absence of weapon does not necessarily mean that victim cannot be raped without it. Physical strength alone could be the weapon of the malefactor against the victim.
There is also no merit on appellant’s argument that it is highly improbable that AAA did not immediately make an outcry against an unarmed accused when she had every opportunity to do so. AAA clearly testified that she called for help. She shouted but the heavy downpour left her cries unheard.
Likewise, appellant’s claim that AAA should have moral ascendancy over the accused, so the accused could not have intimidated her, cannot hold water. Such argument is not even logical, the same is based on the fallacy of non sequitur. In any event, as already discussed, the appellant actually employed force in committing the crime, not intimidation.
Moreover, in trying to bolster his defense, appellant Carrera’s arguments, as summarized above, would want to impress that there is consent on the part of AAA because of the absence of injuries as a result of her struggle.
On the contrary, We found that there is total absence of voluntariness on the part of AAA. Her testimony is very categorical when she narrated that while she was pinned down by the appellant she struggled very hard, she tried to kick or box appellant but she could not overpower him. She testified that she fell on the ground facing down, and that appellant immediately knelt on her back to restrain her with his weight and held one of her arms, while appellant’s other arm was used to commit the sexual assault. Her efforts were indeed futile because the appellant overpowered her, but that does not mean she did not exert any effort to resist.
In the vintage case of People v. Momo,[40] the Supreme Court noted that the particulars of the victim’s resistance would suffice to show that the perverse act was accomplished through violence, against the girl’s will, and in spite of her manifest resistance. Thus, the same case held that when force is an element of the crime of rape, it need not be irresistible; it need but be present, and so long as it brings about the desired result, all consideration of whether it was more or less irresistible, is beside the point, to wit:
“The first of these refers to the violence and intimidation alleged in the information, and which are, according to law, the alternately essential elements of the offense charged. The defense contends that neither of these elements has been established. But, as the offended girl truthfully stated, she defended herself against the accused as long as she could, but he overpowered and held her till her strength gave out, and then accomplished his vicious purpose. These particulars suffice to show that the perverse act was accomplished through violence, against the girl’s will, and in spite of her manifest resistance. As far back as May 14, 1878, the Supreme Court of Spain held (5 Viada, 5th ed., page 224, point 8) that when force is an element of the crime of rape, it need not be irresistible; “it need but be present, and so long as it brings about the desired result, all consideration of whether it was more or less irresistible, is beside the point.”[41]
More importantly, proving resistance on the part of the rape victim is not an element of the crime of rape, thus it is not the burden of the victim to prove the same. The foregoing ruling of the Supreme Court in the case of People v. Bacatan[42] equally applies to the instant case, thus:
“Bacatan points out that the absence of abrasions in AAA’s body negates the employment of force upon her. She also did not put up tenacious resistance neither did she cry for help during and after the alleged rape incident despite the presence of other people in nearby areas. Neither was she or her family members threatened for her to succumb to the sexual congress.
We are not persuaded. In rape cases, the law does not impose a burden on the rape victim to prove resistance because it is not an element of rape. Hence, the absence of abrasions or contusions in AAA’s body is inconsequential. Also, not all victims react the same way. Some people may cry out, some may faint, some may be shocked into insensibility, while others may appear to yield to the intrusion. Some may offer strong resistance while others may be too intimidated to offer any resistance at all. The failure of a rape victim to offer tenacious resistance does not make her submission to accused’s criminal acts voluntary. What is necessary is that the force employed against her was sufficient to consummate the purpose which he has in mind.
Sufficient force does not mean great or is of such character that is irresistible; as long as it brings about the desired result, all considerations of whether it was more or less irresistible are beside the point.
In any event, AAA put up resistance by kicking and wiggling out of Bacatan whose entire weight was on top of her, but he proved too strong. He even mocked her defiance by telling her she’s like a horse.”[43]
In addition to appellant Carrera’s claim that no resistance was employed by AAA, he likewise uses in his favor the absence of any damage on the shorts or panty of AAA to claim that consent was present. He also argues that it is quite improbable and contrary to human experience for rape to occur on the street where the crime was allegedly committed because at that time the street was busy because of the fiesta.
These arguments cannot persuade. Aside from these being mere trivialities considering that the sexual assault was already established, these were already answered during the trial. The shorts and the panty were not torn and were easily removed because the same were garterized thus easily stretchable.[44] And, the street was not busy as the appellant would like to suggest because, at that time, there was a heavy downpour and no people were there to celebrate the fiesta.[45]
Further, what could be more persuasive than AAA’s testimony narrating that when she managed to free herself, she immediately ran home without her shorts and underwear. Appellant would like to impress that there was consent on the part of AAA, but who, in his or her right mind, would consent to a sexual act and thereafter run without any garments to parade his or her bare body?
AAA’s mother even categorically testified that she saw her daughter half naked, without any underwear, mud all over her body, and blood covering her legs. AAA’s deplorable state indeed bolstered her assertion that she was sexually assaulted against her will.
With AAA’s testimony being worthy of credence, corroborated by the testimony of her mother, the medico-legal findings, thus, lend more strength to the prosecution’s evidence. The fresh laceration on AAA’s hymen and the laceration fourchette are highly probable to be the results of the sexual assault committed against AAA. The possibility of a consented sexual act is thus ruled out.
Accordingly, We are constrained to affirm appellant Carrera’s conviction as ruled by the trial court. We, however, modify the trial court’s decision by adding awards of civil indemnity, moral damages, and exemplary damages in AAA’s favor.
Thus, in line with prevailing jurisprudence[46] on the award of damages for rape by sexual assault, We grant to AAA the amounts of P30,000.00 for civil indemnity, P30,000.00 for moral damages and P30,000.00 for exemplary damages. These amounts shall also be subject to legal interest at the rate of six percent (6%) per annum from the date of finality of this judgment until fully paid, pursuant to prevailing jurisprudence.[47]
WHEREFORE, the instant appeal is DENIED, and the Decision dated August 5, 2011 of the Regional Trial Court, Branch 66, Barotac Viejo, Iloilo, in Criminal Case No. 2004-2699 is hereby AFFIRMED with MODIFICATIONS insofar as the payment of civil indemnity, moral damages, and exemplary damages in favor of the private complainant.
Thus, accused-appellant is hereby ORDERED to pay the private complainant Thirty Thousand Pesos (P30,000.00) as civil indemnity, Thirty Thousand Pesos (P30,000.00) as moral damages, and Thirty Thousand Pesos (P30,000.00) as exemplary damages. In addition, legal interest at the rate of six percent (6%) per annum is imposed on all amounts of damages awarded to the private complainant from the date of finality of this judgment until fully paid.
SO ORDERED.
Ingles,* and Azcarraga-Jacob, JJ., concur.
* Acting Chairperson in lieu of Justice Ramon L. Hernando per Office Order No. 19-14-GTI dated July 7, 2014.
[1] Records, pp. 177-179.
[2] In consonance with People v. Cabalquinto (533 Phil. 703 [2006]), the real name of the victim has been withheld and a fictitious name has been used instead to protect her privacy.
[3] Records, p. 1.
[4] TSN dated January 12, 2006.
[5] TSN dated January 11, 2007.
[6] TSN dated September 7, 2006.
[7] TSN dated January 12, 2006.
[8] TSN dated January 12, 2006, pp. 15-17.
[9] Ibid., pp. 17-18.
[10] Ibid., pp. 19-20.
[11] Ibid.
[12] Ibid. pp. 32-33.
[13] TSN dated January 11, 2007, pp. 4-6.
[14] Records, p. 7.
[15] Ibid.
[16] TSN dated June 25, 2007.
[17] TSN dated August 13, 2007.
[18] TSN dated November 14, 2007.
[19] TSN dated November 10, 2009.
[20] TSN dated June 25, 2007, pp. 3-4.
[21] Ibid. pp. 4-5.
[22] Ibid. p. 5.
[23] Ibid. pp. 6-8.
[24] Records, p. 179.
[25] Rollo, p. 17.
[26] Rollo, pp. 9-37.
[27] Rollo, p. 18.
[28] Rollo, pp. 18-23.
[29] Rollo, p. 23.
[30] Rollo, p. 24.
[31] Rollo, p. 26.
[32] Rollo, p. 27.
[33] Rollo, p. 29.
[34] Ibid.
[35] Rollo, p. 30.
[36] Rollo, p. 32.
[37] Rollo, pp. 50-65.
[38] REVISED PENAL CODE, Article 266-A pars. 1 and 2.
[39] TSN dated January 12, 2006, pp. 17-20.
[40] G.R. No. 35235, September 10, 1931.
[41] Emphasis supplied.
[42] G.R. No. 203315, September 18, 2013.
[43] Emphasis and underscoring supplied.
[44] TSN dated January 12, 2006, p. 32.
[45] Ibid. p. 36.
[46] People v. Espera, G.R. 202868, October 2, 2013.
[47] Nacar v. Gallery Frames, G.R. No. 189871, August 13, 2013.