THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HERACLEO ABELLO Y FORTADA, ACCUSED-APPELLANT.

People versus Abello

The Case

This is a criminal appeal in which the People of the Philippines prosecute Heracleo Abello y Fortada for sexually assaulting his stepdaughter, a woman identified only as AAA, who contracted polio in infancy and walked with difficulty. Three separate charges were filed: one for rape by sexual assault, committed by inserting his penis into her mouth, and two for lascivious conduct, committed by fondling her breasts while she slept. The case matters for two reasons. First, it shows how the Supreme Court treats the testimony of a lone victim in a crime committed in private. Second, and more importantly for the Bar, it is a study in the mismatch between what an Information alleges and what the evidence proves, and in the strict proof required before a victim may be treated as a "child" under the Child Abuse Law.

Procedural History

Three Informations, all dated the eighth of July 1998, were filed against Abello before the Regional Trial Court of Malabon City, Branch 170. He pleaded not guilty with the assistance of counsel, and the three cases were jointly tried because they arose from similar incidents involving the same parties. The trial court convicted him on all three charges. In the rape case it imposed an indeterminate penalty of seven years of prision mayor as minimum to thirteen years of reclusion temporal as maximum. In each of the two sexual abuse cases it imposed four years of prision correctional as minimum to twelve years and one day of prision mayor as maximum.

Abello appealed to the Court of Appeals, which affirmed the conviction but modified the penalties. In the rape case it raised the indeterminate penalty to twelve years of prision mayor as minimum to twenty years of reclusion temporal as maximum, and ordered him to pay AAA fifty thousand pesos in moral damages. In each of the two sexual abuse cases it imposed reclusion perpetua. The case then reached the Supreme Court by appeal, and the Court, through Justice Brion, reviewed the records and the parties' testimonies.

Facts

AAA was twenty one years old at the time of the incidents. She had contracted polio when she was seven months old, could not study because of her difficulty in walking, and could only read and write her own name and those of her friends. She lived a sheltered life, cared for by her relatives. Abello was her stepfather, married to her mother, and they all lived in the same house in Navotas, Metro Manila.

In the early morning of the thirtieth of June 1998, at around four o'clock, AAA was sleeping in the house along with her sister-in-law and her nephew. She was suddenly awakened when Abello fondled her breast. On the second of July, at around three o'clock in the morning, he did the same thing while she was again asleep. On both occasions she recognized him because light coming from outside illuminated the house. Then, on the eighth of July, at around two o'clock in the morning, Abello placed his penis inside her mouth. She awoke when he accidentally knelt on her right hand, and she cried out in pain, which forced him to hurry into his room. She nevertheless saw him. On that same date she reported the incidents to her sister-in-law and her mother.

Abello's defense was plain denial. He claimed that in each instance he had merely stepped on the victim in the sala on his way to his room after coming home. He also argued that it was impossible for him to have committed the crimes, since he was AAA's stepfather and had a healthy sexual relationship with her mother, since AAA was not alone during the incidents, and since AAA admitted she was asleep and could simply have dreamed them.

Issues

• Whether or not the trial court and the Court of Appeals erred in convicting Abello of rape by sexual assault under paragraph 2 of Article 266-A of the Revised Penal Code, as amended.
• Whether or not the courts below erred in convicting Abello of two counts of sexual abuse under Section 5 of Article III of Republic Act Number 7610, the Child Abuse Law.
• Whether or not the variance between the mode of commission alleged in the Informations, namely force and intimidation, and the mode proven at trial, namely that the victim was asleep, bars conviction.
• Whether or not the stepfather-stepdaughter relationship may be appreciated as an aggravating circumstance.

Applicable Provisions

Paragraph 2 of Article 266-A of the Revised Penal Code, as amended by Republic Act Number 8353, defines rape by sexual assault:

That the offender commits an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

This is the provision under which Abello was convicted in the first case, and its elements supply the framework for the Court's analysis.

Section 5 of Article III of Republic Act Number 7610 defines and penalizes child prostitution and other sexual abuse:

Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

Its paragraph (b) is the basis of the two sexual abuse charges:

Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.

Whether this provision applies at all turns on whether AAA is a "child" as the law defines that term.

Section 3, paragraph (a) of Republic Act Number 7610 defines "children":

"Children" refers to person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.

Because AAA was twenty one, the prosecution had to bring her within the second clause, and the Court held that it failed to do so.

Article 336 of the Revised Penal Code, as amended, punishes acts of lasciviousness:

That the offender commits any act of lasciviousness; That the offended party is another person of either sex; and That it is done under any of the following circumstances: By using force or intimidation; or When the offended party is deprived of reason or otherwise unconscious; or When the offended party is under 12 years of age or is demented.

This is the provision under which the Court ultimately convicted Abello in the two sexual abuse cases, despite the Informations having cited the Child Abuse Law.

Ruling

On the first issue, the Court affirmed the conviction for rape by sexual assault. AAA's testimony positively and unequivocally narrated the insertion of Abello's penis into her mouth, and she consistently identified him as the perpetrator. The Court stressed that where the offended party gives a straightforward, categorical and candid narration, and no ill motive is shown driving her to testify falsely, that narration deserves credence. Abello could not say why AAA would accuse him. His denial could not prevail over her positive testimony, and his own admission that he passed by the sala in the wee hours of those very mornings showed that he had the opportunity and the means to commit the crimes. The Court also rejected the suggestion that his relationship with AAA insulated him, observing that the relationship between offender and offended party has never been an obstacle to crimes against chastity, and it found the claim that AAA merely dreamed the incidents to be preposterous.

On the third issue, the Court acknowledged that the Information alleged force and intimidation while the evidence showed that AAA was asleep, but held that this variance was not fatal. Quoting its earlier ruling in People versus Corpuz:

a variance in the mode of commission of the offense is binding upon the accused if he fails to object to evidence showing that the crime was committed in a different manner than what was alleged.

Since Abello did not object, the variance did not bar conviction.

On the second issue, however, the Court ruled that Abello could not be held liable under Republic Act Number 7610. The second element of Section 5, paragraph (b) requires that the lascivious conduct be committed on a child who is either exploited in prostitution or subjected to other sexual abuse. The Court found no evidence of force or coercion, since AAA was asleep and unconscious when her breasts were fondled, and no evidence that Abello compelled her or cowed her into silence afterward. More importantly, AAA could not be considered a child under Section 3, paragraph (a). Although the trial court, the Court of Appeals and the prosecutor all treated her polio as a disability, the prosecution presented no medical evaluation or finding from a qualified physician, psychologist or psychiatrist attesting that her condition rendered her incapable of fully taking care of herself or of protecting herself from abuse. Since the law refers to a particular class, the prosecution must show that the victim truly belongs to that class, and any doubt must be resolved in favor of the accused.

Nevertheless, the Court held Abello liable for acts of lasciviousness under Article 336 of the Revised Penal Code. The character of the crime is determined not by the caption or preamble of the Information, nor by the provision of law cited, but by the recital of the ultimate facts and circumstances. The allegations sufficiently constituted acts punishable under Article 336, whose elements were all established: the acts of fondling, the offended party, and the circumstance that she was unconscious.

On the fourth issue, the Court held that the stepfather-stepdaughter relationship could not be appreciated as an aggravating circumstance, because the prosecution failed to present the marriage contract between Abello and AAA's mother. His admission of the marriage was inconclusive, as the marriage contract remains the best evidence of that fact.

Doctrine

A positive, categorical and candid narration by the victim of rape or sexual abuse deserves credence where no ill motive is shown driving her to testify falsely, and the accused's bare denial cannot prevail over it. A variance between the mode of commission alleged in the Information and that proven at trial is not fatal where the accused fails to object to the evidence. The crime committed is determined by the ultimate facts recited in the Information, not by the provision of law cited in its caption, so an accused may be convicted under the Revised Penal Code even if the Information wrongly invokes a special law. Finally, where the victim is over eighteen, she may be treated as a "child" under Republic Act Number 7610 only upon competent evidence, such as a medical evaluation by a qualified physician, psychologist or psychiatrist, that her disability renders her unable to care for or protect herself; absent such proof, the special law does not apply, and any doubt is resolved in favor of the accused.

Disposition

The Court affirmed Abello's conviction for rape by sexual assault and for two counts of acts of lasciviousness under Article 336 of the Revised Penal Code, set aside the convictions under Republic Act Number 7610, and modified the penalties accordingly.

Remember This

Memorize this line: the crime is determined by the facts alleged in the Information, not by the law cited in its caption. Examiners use this case to test the variance rule, the strict proof required to bring an overage victim within the Child Abuse Law, and the best evidence rule for marriage as an aggravating circumstance.