REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Cebu City

PEOPLE OF THE
PHILIPPINES,
Plaintif,
CA G.R. CEB CR-HC No. 2018-001
- versus -

XXX,
Accused-Appellant.
x---------------------------x

BRIEF FOR THE ACCUSED-APPELLANT

ASSIGNMENT OF ERROR

THE COURT A QUO GRAVELY ERRED

IN CONVICTING THE ACCUSED-
APPELLANT OF THE CRIME OF RAPE
DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.

STATEMENT OF THE CASE

Accused-appellant XXX was charged in two

Informations for the crime of RAPE, the respective
accusatory portions of which read, viz:

Criminal Case No. 2018-002:

“That on or about the 25 th day of August 2018 in

Brgy. Makalipay, Makadatu City, and within
the jurisdiction of this Honorable Court, the
above-named accused, prompted with lewd
design, and by means of force and taking
People vs. XXX Page 2 of 16
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Brief for the Accused-Appellant
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advantage of his superior strength and moral
ascendancy being the father of AAA, 11 years
old, did then and there wilfully, unlawfully and
feloniously have carnal knowledge with said
minor-daughter against her will and consent, to
her damage and prejudice.

Contrary to law.”

Criminal Case No. 2018-002:

“That on or about the 26 the day of August 2018

in Brgy. Makalipay, Makadatu City, and within
the jurisdiction of this Honorable Court, the
above-named accused, prompted with lewd
design, and by means of force and taking
advantage of his superior strength and moral
ascendancy being the father of AAA, 11 years
old, did then and there wilfully, unlawfully
and feloniously have carnal knowledge with
said minor-daughter against her will and
consent, to her damage and prejudice.

Contrary to law.”

Upon arraignment, accused-appellant entered a plea of

NOT GUILTY to the crimes charged.

After pre-trial, joint trial on the merits ensued.

On August 16, 2019, the Regional Trial Court of

Makadatu City1 rendered a Decision,2 the dispositive portion
of which reads:

“WHEREFORE, premises considered, the

Court finds accused XXX GUILTY beyond
reasonable doubt of the crime of RAPE

1
Hereinafter referred to as court a quo.
2
A copy of which is hereto attached as Annex “A”.
People vs. XXX Page 3 of 16
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committed under Article 266-A of the Revised
Penal Code, as charged in Criminal Case No.
2018-002, and hereby sentences said accused to
suffer the penalty of imprisonment of
RECLUSION PERPETUA, and is hereby ordered
to pay the victim, AAA, Seventy-Five
Thousand Pesos (P75,000.00) as civil
indemnity, Seventy-Five Thousand Pesos
(P75,000.00) as moral damages and Twenty-
Five Thousand Pesos (P25,000.00) as
exemplary damages.

In Criminal Case No. 2018-001, for failure

of the prosecution to prove the guilt of the
accused beyond reasonable doubt, accused XXX
is hereby ACQUITTED of the crime charged
therein.

SO ORDERED.

AUGUST 16, 2019, City of Makadatu,

Philippines.”

Undaunted, accused-appellant filed this instant appeal.

STATEMENT OF FACTS

EVIDENCE FOR THE PROSECUTION

To prove its case, the prosecution presented AAA,

ESLA SALSA, and DR. KRIS TEEN as its witnesses.

AAA testified that xxx:

Relationship between AAA(victim) and XXX

(accused):

AAA testified that XXX is her father. When asked to

point him out, the witness refused to do so. Instead, she
People vs. XXX Page 4 of 16
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Brief for the Accused-Appellant
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cried covering her face with a face towel and was hesitant to
answer succeeding questions.

With respect to the age of AAA:

AAA was 11 years old when the crime of rape

consummated. She was born on August 26, 2008.

Complaint-affidavit of AAA:

She has six siblings and all of them are at the DSWD
shelter since their mother is in Manila. She is the eldest
among her siblings.
AAA stated that she was undressed by XXX and then he
bit her nipples and inserted his penis to her organ. She felt
pain. The rape incident happened during nighttime in the
presence of her siblings who were already asleep. During the
incident, XXX did not utter any word. XXX had raped her
many times that she can no longer count. Earlier on August
25, 2018, XXX licked AAA’s vagina, then hit her legs
and told her not to keep moving but he did not insert his
penis inside her vagina. As regards the rape incident on
August 26, 2018, a watery substance came out from her
organ.
After being raped by her father, AAA told her father’s
friend, a female whom she already forgot the name, and she
also told her teacher, a certain Ma’am Elsa, of what her
father did to her. It was her Ma’am Elsa who helped her in
going to the police.

During clarificatory questions in the Court:

AAA stated that she told Ma’am Elsa on a Monday,

immediately after the incident, but prior to that, she did
not tell anybody about previous rape incidents that her
father did to her.
The first person to whom she told her ordeal was her
father’s friend and she did it immediately after the incident
People vs. XXX Page 5 of 16
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Brief for the Accused-Appellant
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who also reported it to their mayor. During the rape
incidents, her sibling next to her was BBB, who was
then nine years old.
AAA further stated that the rape incident that she
reported to her Ma’am Elsa was the last, and she reported it
to her Ma’am Elsa on August 25, 2018 immediately after it
happened. When she reported to her Ma’am Elsa, she had
already On cross-examination, AAA stated that she can
no longer recall when did her father start raping her but for
August 20 and 27, 2018 rape incidents, she is sure of those
dates because it was a Saturday and Sunday. It was her
Ma’am Elsa who told her of those dates because she could
no longer recall them. It was also her Ma’am Elsa who
talked to the police and narrated the incident. It is not
possible that it was any other person who raped her since
even if it happened at night, she saw her father’s face. She
did not have a boyfriend in 2018. During the rape incidents,
XXX did not threaten her.

ESLA SALSA testified that xxx is the father of AAA.

She narrated that AAA is now in DSWD together with the
latter’s five siblings. One morning, she noticed that AAA
was somewhat uneasy and was about to tell her
something but because she was then in a hurry to clean
the Day Care Center, she just ignored her.
AAA had a classmate who happened to be Elsa’s niece
and it was with this classmate that AAA confided that she
was molested by her father the night before. Since AAA has
five siblings, they usually stay together and would not
separate with each other in playing with their friends and
there, they started telling their friends about it. Upon
hearing this, Elsa contacted their Chief Tanod and requested
him to look for AAA who was then roaming around
their barangay, and so the girl was brought to the house of
one of the barangay kagawads.
Elsa asked several questions from AAA and the latter
was consistent with her answers that she was sexually
molested by XXX for five times already because it was
successively done to her for three nights.
People vs. XXX Page 6 of 16
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Brief for the Accused-Appellant
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During Elsa’s interview which occurred the day after the
last incident, AAA disclosed that she was punched on her
legs every time she resisted. The tanods set for the arrest of
XXX at 1:00 a.m. of August 28, 2018.

DR. KRIS TEEN testified that she attended to AAA

and accompanied by a police officer who requested for
AAA’s medical examination for the complaint of rape.
She interviewed AAA who revealed having been
sexually abused by her father. She conducted the physical
examination on the patient. AAA narrated she was raped on
August 25 and 26, 2018. There were other rape incidents
that AAA revealed but cannot anymore recall the dates. In
the medico-legal report, Dr. Teen noted that in the
parihymenal area and fossa navicularis, there was no
evident injury at the time of her examination but she noticed
that in the hymen, there was partial laceration at 4:00
o’clock position, the possible cause of which was a blunt
object; however, she was not able to indicate in the
report whether it was healed or fresh.
There was no other injury found during the examination
on August 28, 2018.

EVIDENCE FOR THE DEFENSE

The defense waived the presentation of evidence.

ARGUMENT

THE COURT A QUO GRAVELY ERRED

IN CONVICTING THE ACCUSED-
APPELLANT OF THE CRIME OF RAPE
DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.

On the identity of the accused:

People vs. XXX Page 7 of 16
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Brief for the Accused-Appellant
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Proving the identity of the accused as the malefactor is
the prosecution's primary responsibility. The identity of the
offender, like the crime itself, must be established by proof
beyond reasonable doubt. Indeed, the first duty of the
prosecution is not to prove the crime but to prove the
identity of the criminal, for even if the commission of the
crime can be established, there can be no conviction without
proof of identity of the criminal beyond reasonable doubt. 1

The herein case, the refusal of AAA to identify the

accused-appellant during the trial would be deemed as a
failure to establish evidence of identity of the malefactor,
which is primary duty of the prosecution. Failure to prove
the identity of the accused beyond reasonable doubt will
result to no conviction.

Incredibility of evidence presented by the

Prosecution:

To convict the accused based solely on the lone

testimony of the victim, her testimony must be clear,
straightforward, convincing, and consistent with human
experience. The standard must set high in evaluating the
credibility of the testimony of a victim who is not a minor
and is mentally capable.2

In this case at bar, consistency of testimonies were

immaterialized as presented in the following:

1. On the complaint-affidavit of AAA, she mentioned

that she had six (6) siblings. This was invalidated by
the statement of the witness, Elsa Salsa, as she
mentioned time and again that the victim had five
(5) siblings.

2. Witness Elsa Salsa, on her affidavit, she mentioned

that AAA had been sexually molested five (5) times,
done successively for three (3) nights, when she
conducted interview with AAA after the final incident
happened on August 27, 2018.
People vs. XXX Page 8 of 16
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Brief for the Accused-Appellant
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It is clear from the information, both from the victim
and the witness, that the dates of the rape incident
were not corroborated, it is uncertain, and would
create suspicious motive from the party.

3. The exact dates when the alleged incidents

happened, which is a substance for the Medico-Legal
report, were neither established by the victim nor
have it been corroborated by the information
provided by the witness, Elsa Salsa.

On complaint-affidavit of AAA, she mentioned that

the alleged rape occurred on the succeeding dates:
August 25, 2018 and August 26, 2018(during her
birthday).

On the other hand, on cross-examination, she

mentioned that the alleged rape incidents happened
on August 20, 2018 and August 27, 2018, and that
she is certain of those dates as she can remember
that those dates was a Saturday and Sunday.

Medico Legal Report:

Dr. Kris Teen noted that in the parihymenal area and

fossa navicularis, there was no evident injury at the time of
the examination but she noticed that in the hymen, there
was partial laceration at 4:00 o’clock position, the possible
cause of which was a blunt object; however, she was not
able to indicate in the report whether it was healed or fresh.
There was no other injury found during the examination on
August 28, 2018.

In a study conducted by Radostina D. Miterva,3 the

most common sites for lacerations were determined, "in
rape victims with ring-shaped hymens, lacerations were
most commonly located as followed at dorsal recumbence of
the patient: (1) one laceration at 6 o'clock position in
42.02% of cases; (2) two lacerations at 5 and 7 o'clock
positions in 24.55% cases; (3) three lacerations at 3, 6 and
9 o'clock positions in 45.36% of cases; and (4) four
People vs. XXX Page 9 of 16
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Brief for the Accused-Appellant
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lacerations at 3, 5, 6 and 9 o'clock positions in 25% of
cases."

In the instant case, the laceration was found only at

the 4 o'clock positions of the hymen. Considering the locality
of this laceration, there is no direct indication that the
parihymenal laceration was the result of the penetration by
accused-appellant XXX to AAA, as alleged. Also, according to
Dr. Teen, she was not able to identify whether the partial
laceration was healed or fresh. Moreover, the absence of
bruises on AAA's legs, based on the statement of Elsa Salsa,
that the victim was punched by the accused in the legs
every time she is resisting during the incident, reinforces
contrary to the evidence in medico-legal report.

Insofar as the evidentiary value of a medical

examination is concerned, Supreme Court held that a
medico-legal report is not indispensable to the prosecution
of a rape case, it being merely corroborative in nature.4 In
convicting rapists based entirely on the testimony of their
victim, Supreme Court said that a medico-legal report is by
no means controlling.5 Thus, since it is merely corroborative
in character, a medico-legal report could even be dispensed
with.6

In People vs. Amarela, G.R. No. 225642-43, January

17, 2018, the Supreme Court held that a medico-legal's
findings are at most corroborative because they are mere
opinions that can only infer possibilities and not absolute
necessities. A medico-legal, who did not witness the actual
incident, cannot testify on what exactly happened as his
testimony would not be based on personal knowledge or
derived from his own perception. Consequently, a medico-
legal's testimony cannot establish a certain fact as it can
only suggest what most likely happened.

In this case at bar, there was no corroboration between

the allegations and the medico-legal report. Thus, the
medico-legal report does not support the statements of the
victim and the witness.
People vs. XXX Page 10 of 16
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Brief for the Accused-Appellant
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On the Requisites of Article 266-A of The Revised
Penal Code, Also Known as The Anti-Rape Law of 1997

Article 266-A. Rape: When and How Committed. - Rape

is committed:

"1) By a man who shall have carnal knowledge of a

woman under any of the following circumstances:

"a) Through force, threat, or intimidation;

"b) When the offended party is deprived of reason or other

unconscious;

"c) By means of fraudulent machination or grave abuse of

authority; and

"d) When the offended party is under twelve (12) years

of age or is demented, even though none of the
circumstances mentioned above be present.

"2) By any person who, under any of the circumstances

mentioned in paragraph 1 hereof, shall commit 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.

1. Carnal Knowledge

The evidences presented by the prosecution were

not clear and ambiguous, through evident
inconsistencies of the statements of the victim and the
witness.

The dates when alleged rape incident occurred

were not established, also the medico-legal report is
not convincing, if the sexual abuse is committed.

Hence, it is unjust and unreasonable to the

accused-appellant XXX of carnal knowledge with the
People vs. XXX Page 11 of 16
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victim without conclusive facts and evidence that could
prove it beyond reasonable doubt.

2. Age of the victim

The age of the victim must be materialized to

ascertain the necessary information. Primarily, dates
must be properly and accurately established during the
alleged incidents. The victim mentioned on her affidavit
that she was raped on the date of her birthday. It is
very dubious for a normal person to forget the day he
was born. Secondarily, it is essential as it is a requisite
in convicting any person with Article 266-A of The
Revised Penal Code.

The victim mentioned that the alleged rape

incident happened during her birthday, presumed to be
August 26, 2008. However, on three separate
occasions: her affidavit; during clarificatory questions;
and during the cross-examination, she was uncertain
and her statements were contradictory on when the
alleged rape incidents occurred. It is impossible for a
sane person to forget his date of birth.

To prove the fact of minority of the victim, the

prosecution provided a photocopy of certificate of live
birth of the victim.
Under the best evidence rule, the original
document must be produced whenever its contents are
the subject of inquiry7.
The rule is encapsulated in Section 3, Rule 130 of
the Rules of Court, as follow:

Sec. 3. Original document must be produced;

exceptions. — When the subject of inquiry is the
contents of a documents, no evidence shall be
admissible other than the original document itself,
except in the following cases:
People vs. XXX Page 12 of 16
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(a) When the original has been lost or destroyed,
or cannot be produced in court, without bad faith on
the part of the offeror;

(b) When the original is in the custody or under

the control of the party against whom the evidence is
offered, and the latter fails to produce it after
reasonable notice;

(c) When the original consists of numerous

accounts or other documents which cannot be
examined in court without great loss of time and the
fact sought to be established from them is only the
general result of the whole; and

(d) When the original is a public record in the

custody of a public officer or is recorded in a public
office.

Before a party is allowed to adduce secondary

evidence to prove the contents of the original, the
offeror must prove the following: (1) the existence or
due execution of the original; (2) the loss and
destruction of the original or the reason for its non-
production in court; and (3) on the part of the offeror,
the absence of bad faith to which the unavailability of
the original can be attributed. The correct order of
proof is as follows: existence, execution, loss, and
contents8.

The gravamen of the crime of rape is carnal

knowledge with a woman by force and without consent.
If the woman is under 12 years of age, proof of force
and consent becomes immaterial not only because
force is not an element of statutory rape, but the
absence of free consent is presumed. Conviction will
therefore lie, provided sexual intercourse is proven. But
if the woman is 12 years of age or over at the time she
was violated, sexual intercourse must be proven and
People vs. XXX Page 13 of 16
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also that it was done through force, violence, threat or
intimation9.

In this case, the prosecution failed to establish beyond

reasonable doubt that accused XXX, had carnal knowledge
with the victim and, they were not able to provide solid and
acceptable evidence to the Court that would validate the age
of the victim.

The prosecution failed to prove the guilt of the

accused-appellant beyond reasonable doubt

Although the accused, XXX, did not raise any defense,

we must bear in mind that the burden of proof is never
shifted and the evidence for the prosecution must stand or
fall on its own merits. Whether the accused's defense has
merit is entirely irrelevant in a criminal case. It is
fundamental that the prosecution's case cannot be allowed
to draw strength from the weakness of the evidence for the
defense. 10

In the end, what needs to be stressed here is that a

conviction in a criminal case must be supported by proof
beyond reasonable doubt or moral certainty that the accused
is guilty.11 Absolute guarantee of guilt is not demanded by
the law to convict a person of a criminal charge but there
must, at least, be moral certainty on each element essential
to constitute the offense and on the responsibility of the
offender.12 Thus, the prosecution has the primordial duty to
present its case with clarity and persuasion, to the end that
conviction becomes the only logical and inevitable
conclusion.

The prosecution in this case failed to established proof

beyond reasonable doubt or moral certainty that the accused
is guilty. Furthermore, the evidences presented by the
prosecution were dubious and lack of substance. Hence, the
weak evidence of the prosecution will not suffice to convict
the accused.
People vs. XXX Page 14 of 16
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Brief for the Accused-Appellant
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PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court that the Decision
dated August 16, 2019 of the Regional Trial Court, Makadatu
City, be REVERSED and SET ASIDE and a new one be
rendered ACQUITTING accused-appellant XXX of the crime
of RAPE in Criminal Case No. 2018-002.

Other reliefs just and equitable under the premises are

likewise prayed for.

Respectfully submitted.
27 September 2019. Cebu City, Philippines.

By:

EC S. CADUCOY
Roll No. _14344___
IBP No. and date 91590, November 3, 2018
MCLE Compliance No. VI-00 61789
PTR No. and date 6304047, January 3, 2019

EXPLANATION

Pursuant to Sec. 11, Rule 13 of the 1997 Rules of Court

a copy of the foregoing BRIEF FOR THE ACCUSED-
APPELLANT is being served by registered mail due to
distance and lack of office personnel to effect personal
service.

EC S. CADUCOY

Copy furnished:
People vs. XXX Page 15 of 16
CA G.R. CEB CR HC No. 2018-001
Brief for the Accused-Appellant
x------------------------------x
OFFICE OF THE SOLICITOR GENERAL Reg. Receipt No. ___
134 Amorsolo St., Legaspi Village Date: ___________
1229 Makati City

Footnotes:

1
People v. Caliso, 675 Phil. 742, 752 (2011) cited in People v. Espera, 718 Phil. 680,
694 (2013).

2
People vs. Amarela, G.R. No. 225642-43, January 17, 2018.

3 Localization and Number of Defloration Lacerations in Annular Hymens, J

Biomed Clin Res Suppl. 1 Vol. 2 No. 1, 2009.

4
People v. Pamintuan, 710 Phil. 414, 424 (2013) citing People v. Opong, 577
Phil. 571, 593 (2008); People v. Lou, 464 Phil. 413, 423 (2004); People v.
Baltazar, 385 Phil. 1023, 1036 (2000); People v. Lasola, 376 Phil. 349, 360
(1999).

5
People v. Ferrer, 415 Phil. 188, 199 (2001 ).

6
People v. Dion, 668 Phil. 333, 351 (2011 )..

7
COUNTRY BANKERS INSURANCE CORPORATION vs. LAGMAN, G.R. No.
165487, July 13, 2011 Rule 133, Section 2 of the Revised Rules on Evidence.
People vs. XXX Page 16 of 16
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8
Citibank, N.A. Mastercard v. Teodoro, 458 Phil. 480, 489 (2003).

9
People of the Philippines v. Edgardo Dimaano, G.R. No. 168168, September
14, 2005.

10
People v. Cruz, 736 Phil. 564, 571 (2014) citing People v. Painitan, 402
Phil. 297, 312 (2001); People v. Bormeo, 292-A Phil. 691, 702-703 (2014)
citing People v. Quintal, 211 Phil. 79, 94 (1983); People v. Garcia, 289 Phil.
819, 830 (1992).

11
People v. Bautista, 426 Phil. 391, 413 (2002).

12
People v. Jampas, 610 Phil. 652, 669 (2009).