Republic of the Philippines
G.R. No. 126545 April 21, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appelle
LORENZO ANDAYA y FLORES, accused-appellant.
Before us for automatic review is the Decision of the Regional Trial Court, Branch 56, Libmanan, Camarines Sur, in Criminal Case No. L-1722, convicting Lorenzo Andaya of the crime of Rape imposing to death penalty.
The information against accused Lorenzo Andaya reads:
The undersigned upon a sworn complaint originally filed by the private offended parties, accuses LORENZO ANDAYA Y DOE of the crime of Rape defined and penalized under Art. 335 of the Revised Penal Code, committed as follows:
That on or about the 25th day of July at around 10:00 o'clock in the morning and several days thereafter, in Barangay Bagumbayan, Municipality of Libmanan, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, with grave abuse of confidence, and taking advantage of the mental disorder of herein victim NELLY SOLANO, did then and there willfully, unlawfully and feloniously have the carnal knowledge to said victim, a 17 years of age, against her will and consent, and to her damages and prejudice.
ACTS CONTRARY TO THE LAW. 1
Nelly Solano is a seventeen-year old barrio lass who lives with her father, Domingo Solano, her mother and her brother Mario in a 6 x 7 meter house with one bedroom in barangay Libmanan, Camarines Sur. Sometime in 1994, Lorenzo Andaya requested Domingo Solano to be allowed to stay with the family; Domingo Solano consented although Lorenzo was a total stranger. Lorenzo stayed with the Solanos as a "transient resident" for almost one (1) year. 2
On July 25, 1994, accused Lorenzo ("Inso") came to the Solano residence when Nelly's parents were in the market, and her brother Mario was at work in the store, pulled Nelly inside me house, threatened to kill her if he will not give in and succeeded in having carnal knowledge with her in the bedroom; "kinastahan po niya ako, kinikito niya ako", a Bicol slang connoting having sexual intercourse with force. 3 Inso removed her panty; she did not do anything and did not resist for fear that he will kill her. As she was lying down on the floor, Inso was fucking her, she was hurt, and she did not enjoy what was happening. When her parents arrived, she did not tell them what happened, until later. 4 Lorenzo succeeded in having sex with her many times (maybe five) whenever her parents were in the market. 5
Domingo Solano learned that his daughter was sexually abused because "she was so sleepy". He brought her to the Libmanan District Hospital where she was found to be pregnant. 6
Dr. Wyda D. Berina conducted a medical examination and issued a Medico Legal Certificate dated September 9, 1994 with the following findings:
Patient claims to have been raped 3 x with 2nd incident occurring next day in the next afternoon with 3rd incident occurring several days (?) later at an unrecalled time.
1) Old hymenal tear at 3:00 o'clock
2) Old hymenal tear at 9:00 o'clock
3) On speculum examination, admits speculum (small) with ease
Cx: Positive Hegar's sign, nulliparous
4) On I. E., admits tactating fingers (#2) with ease
Cx: soft, non-tender
Uterus enlarged to about 2-3 months size.
Barring complications and under normal conditions the above lesions may require medical attendance from 6 months to 7 months. 7
Dr. Liza Salvador, an obstetrician-gynecologist, testified to explain the above findings of Dr. Berina who was no longer connected with the hospital. Dr. Salvador stated that there were old hymenal tears, 3 o'clock and 9 o'clock positions and the cervix had no lesion and there was no old scar. "Positive Hagar's sign" as stated in the medical certificate means that there were changes in the shape and size of the uterus; cervix was virginal and soft and the uterus enlarged, indicating that the patient was pregnant two or three months. 8
Nelly gave birth to a baby girl who was named Nerissa while the trial was going on and before she testified on October 5, 1995. Asked who the father of the child was, she answered "Inso is the father" 9 and pointed to him in
The Court ordered a psychiatric examination of Nelly Solano, Dr. Chona C. Cuyos-Belmonte, psychiatrist of Bicol Medical Center, Naga City, submitted the following report:
This client was brought by her brother-in-law Mr. Jesus Opinion in compliance with the court order by Judge Bagalasca.
According to him, he has known the client for almost 15 years now, Since that time Nelly has been noted to be dull mentally. She was able to reach grade I only due to this problem. She is describe further to be always with-drawn seclusive, although generally behave and compliant. She is obedient but at times also throws temper tantrums despite her present age. At home, she could only be made to do very simple household chores. She needs lots of supervision in any given task. She could not be send to errands especially when money matters are concerned. She could not ride in public transport vehicle without companion.
MENTAL STATUS EXAMINATION:
She was seen and evaluated on August 10, 17, 31 and September 7, 1995. She looks small for her chronological age of 18 but her physical features are that of an adult. She has sogged engrossed breast and pole dry skin. She is generally behave and manageable. She speaks in a soft but audible voice. She has a very limited production but she is coherent and relevant. She refused to elaborate even when prodded.
She made mention about the rape incident. She said it was done to her by "Inso" for about 4 times. She can't give specific dates and details. She is intellectually dull as evidence by her poor fund of general knowledge, poor comprehensive capability and concrete thinking. Her orientation to time, place and person is also impaired. She has very limited insight about her condition and her judgment is also impaired.
PSYCHOLOGICAL TESTING RESULT:
Revised Beta Examination
Bender Visual Motor Gestalt Test
Tests Results and Evaluation:
Subject obtained an I.Q. of 31, classified as moderate mental retardation. All sub-test scores indicate a very low level of mental capacities. Projective tests project psychotic features.
REMARKS AND RECOMMENDATION
On the basis of the foregoing findings, the alleged victim NELLY SOLANO was found to be suffering from the MODERATE MENTAL RETARDATION. Her mental age is estimated to be 5 to 9 years of age. She has some depressive features.
In terms of her competency to stand witness in her behalf, it is the opinion of the undersigned that since she has the capacity to delineate truth from fantasy and she has the capacity to relate her story despite of the level of her Intellectual I. Q., then she can be considered competent to stand witness in her behalf. It is also suggested to the honorable court that questions be done in simple, direct and concrete manner for her to be able to comprehend easily the court proceedings. 11
On direct examination Dr. Belmonte admitted that no psychiatric treatment is necessary for Nelly Solano; what she needs is a special type of education. Nelly is a "mental retardate", with a level of moderate mental retardation, i.e., this person can study until grade 3, but will never progress after that; she needs a lot of supervision with simple task, has difficulty in holding a job, or even riding public transport or relating to people. 12
Accused Lorenzo Andaya testified in his defense. He declared that he has been a resident of Bulan, Sipocot Camarines Sur, since 1981, where he lived with his parents, brother and sisters. He denied that he was in Bagumbayan, Libmanan, Camarines Sur on July 25, 1994, as he was in Sipocot constructing their family house. The first time he came to the house of the Solanos was one day in November 1993 when he came to said house for shelter during a heavy rain, and he stayed in Bagumbayan only for a week, the fist three days at Domingo Solano's house and the rest of the week, he stayed with Erning Paliza. He came back on June 19, 1994 to take back his rooster which he was planning to enter in a cockfight during the fiesta. He denied that raped the complainant but admitted that he offered her marriage after she delivered a baby girl and he had seen the child, but the marriage did not materialize although she had signed the application for marriage license. He claims that when the Solanos discovered that Nelly was pregnant they suspected him as the one who raped their daughter, he first came to know about the case when he was apprehended by the policeman on September 26, 1994. 13
The prosecution presented Ernesto Paliza as rebuttal witness. He lives half a kilometer away from the house of Domingo Solano and stated that the accused Lorenzo Andaya stayed in his place during the month of July and the month of September 1994, and it was at his place where Lorenzo was picked up by the policeman. He did not know the activities of the accused because "sometimes he leaves, sometimes he comes back" 14
Bienvenido Cundangan also testified as a rebuttal witness. He stated that his house was less than 400 meters away from the Solanos and that the accused stayed with the Solanos for at least a year since they met on July 1994 in the house of the Solanos. He did not know when he left. 15
The trial court found the accused guilty of statutory rape; although the victim was already seventeen years old, she had this mental age of a seven year old. It held:
The Court is morally convinced that the accused LORENZO ANDAYA Y FLORES, is GUILTY beyond reasonable doubt of the crime of RAPE, as defined and penalized under Article 335(3) of the Revised. Penal Code, and he is hereby sentenced to suffer the maximum penalty of DEATH. He is directed to indemnify the offended party in the amount of Fifty Thousand Pesos (P50,000.00) as moral damages, and Fifty Thousand. Pesos (P50,000.00) as exemplary damages and to acknowledge his offspring, NERISSA SOLANO, with the offended party. 16
Accused Lorenzo Andaya raises a lone assignment of error in his Appellant's Brief:
ASSIGNMENT OF ERROR.
THE COURT A QUO ERRED IN NOT CONSIDERING THE FACT THAT THE ALLEGED VICTIM VOLUNTARILY SUBMITTED TO THE SEXUAL ACTS AND THAT HER MENTAL AGE OF "MODERATE RETARDATION" CANNOT BE LOWER THAN THAT OF A TWELVE-YEAR OLD CHILD BASED ON THE FINDINGS OF THE PSYCHIATRIST, THUS NEGATING THE COMMISSION OF RAPE.
After a careful examination of the evidence on record, we affirm the judgment finding accused-appellant guilty of rape.
The complainant is a mental retardate; it was established by the prosecution that her mental age is estimated to be 5 to 9 years old. No evidence was presented by the defense to rebut the result of the psychological test administered to the victim either on the ground of inaccuracy or falsity. The psychiatric report stated that the victim has the capacity to delineate truth from fantasy and despite the low level of her intellectual IQ, she has the capacity to relate her story and can be considered competent to stand witness in her 17
The trial court found Nelly's answers to be "spontaneous and clear" despite her retardation. She was consistent in telling the court that it was "Inso" who raped her in her house while her parents were away. She testified on direct examination as follows:
Q: Tell us how did it happen that Lorenzo Andaya, whom you called Inso, is the father of your daughter Nerissa Solano?
May we request that the interpreter should ask the witness if she understand the question.
(The interpreter asked the witness and again translated the question.)
A Kinastahan po niya ako, kinikito niya ako."
The last portion means that he has having sex with me.
We place on record that "Kinastahan po niya ako", is a bicol slang word of having sexual intercourse.
But the connotation here is with force.
Yes, kasta is with force.
Just have that made of record, but the last part, we interpret it.
Make of record the manifestation of both counsel that "kasta" according to Prosecutor Solano it is with force but Atty. Borja do not agree with that interpretation but "kinikito niya ako is having sex with her.
Q: Tell us how many times, if you can still recall, that the accused "kinastahan ka"?
A: I do not recall, Sir.
Q: Could it be five times?
A: Maybe, Sir.
Q: Can you tell us when was that, if you can still recall, that the accused in this case "kinastahan ka" for the first time?
A: When my parents are in the market, he would come to me.
Your Honor please, I move that the testimony be stricken out of the record for not being responsive to the question because the question is when was the first time?
Go on with that question but the answer be recorded.
Q: When was the first time na kinastahan ka?
A: That was a long ago, Sir.
Q: Could it be July 25, 1994?
A: Yes sir.
Q: Tell us or show us how the accused "kinastahan ka"?
A: If do not submit to him for sexual intercourse, he would kill me.
Q: Tell us, how did the accused do it to you as you said "kinastahan ka" after the accused said that be will kill you if you will not give in to his demand or request to "kasta saimo"?
A: He pulled me.
Q: After pulling you, tell us what happened next?
A: Then he had sexual intercourse with me.
Where did he pull you?
A: He pulled me inside.
Q: Inside what?
A: Inside the house.
Q: Tell us if this "pagkasta saimo" or the accused having sexual intercourse with you is with your consent?
Very much leading, Your Honor.
Witness may answer. According to the doctor who testified before, she should be asked questions that are direct, simple and short.
A: No sir. 18
and on cross-examination:
Q: And what time does he usually return home?
A: Whenever my father is not around, when he is in the market, Inso comes back to the house.
Q: And what does Inso do in your house when he comes back to your house?
A: "Na rape sakuya". He raped me.
Q: I would request You Honor that the word "Na rape" be made of record as testified to by the witness. By the way, did you ever go to school?
A: Yes sir. Grade I.
Q: Where did you study?
Q: When you said when your father left the house, Inso would return to you and raped you. Now, how did you come to know the word "rape"?
A: "Kito". (Witness answered in Bicol dialect.)
Q: From whom did you learn the word "rape"?
A: None, sir.
Q: Did you heard that word from anybody else?
A: Yes, sir.
Q: From whom did you learn the word "rape"?
A: "Basta sa tao" or from a person.
Q: Did you understand the word "rape"?
A: Yes, sir. Sexual intercourse.
Q: What? How do you understand?
Is it not she answered already "kito" or sexual intercourse. 19
Asked who the father was, Nelly pointed to the accused in court. 20
We find no cogent basis to disturb the trial court's finding that Lorenzo Andaya raped Nelly Solano, the veracity and truthfulness of whose narration was found to be credible, and not shown to be rehearsed or dictated by a vengeful parent despite Nelly's difficulty in explaining and the minor inconsistencies in her testimony. Needless to state, the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand, and to note their demeanor, conduct and attitude under grilling examination. The trial court's findings carry great weight and respect and will be sustained by the appellate courts unless the trial court overlooked misunderstood, or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or effect the result of the case. 21 In the instant case, we see no compelling reason to depart from this established rule.
The alleged flaws in Nelly's testimony cited in the appellant's brief do not impress the Court as materially impairing the credibility of the said testimony. It is claimed that despite several repetitions of the sexual act, she did not report them to her father or the authorities thus proving that "she accepted her fate or perhaps had enjoyed the act that she did not want to end her sexual relationship with the accused 22
The contention must fail. A mental retardate is incapable of giving rational consent. 23 The term "deprived of reason" in Article 335 of the Revised Penal Code has been construed to include those suffering from mental abnormality or deficiency, or some form of mental retardation. 24 A mental condition of retardation deprives the complainant of that natural instinct to resist a bestial assault on her chastity and womanhood. 25 Jurisprudence has established that sexual intercourse with one who is intellectually weak to the extent that she is incapable of giving consent to the carnal act constitutes rape. 26 And it is well-settled that sexual intercourse with a woman who is a mental retardate constitutes statutory rape, which does not require proof that the accused used force or intimidation in having carnal knowledge of the victim for conviction. 27 At any rate, there is evidence to show that the accused-appellant used force and intimidation in committing the crime of rape in this case, as complainant testified, upon questioning by the court, that the accused-appellant threatened her with a one-foot-long bolo. 28
The sexual congress was consummated; a child was born and Nelly pointed to the accused as the father. The accused offered marriage, but Nelly subsequently withdrew her alleged earlier conformity. Not a few number of cases have established that an offer of marriage is considered an implied admission of guilt of the accused. 29
The defense of alibi and denial was correctly found to be unworthy of credit. The accused-appellant's claim that he was in his residence at Sipocot on July 25, 1994 and, that he stayed only with the Solanos for three days in November 1993, was not established by competent evidence. The trial court noted that Sipocot and Libmanan are neighboring municipalities which can be easily reached in less than fifteen minutes. Besides the denial of the accused cannot prevail in the face of the positive identification of the accused. 30
Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation:
2. When the woman is deprived of reason or otherwise unconscious, and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.
The crime alleged in the criminal complaint is rape by means of force and intimidation and taking advantage of the mental disorder of the victim. Sexual intercourse with a woman who is a mental retardate with the mental age of a child below 12 years old constitutes statutory rape, which does not require proof that the accused used force and intimidation in having carnal knowledge of the victim for conviction. 31 The penalty for statutory rape is reclusion perpetua, which being a single indivisible penalty, is imposable regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. 32
Under the above-quoted provisions, when the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. There is evidence to show that the accused-appellant used force and intimidation; but in the absence of any concrete evidence that the rape was committed with the use of deadly weapon no aggravating circumstance may be considered by the court. The penalty of reclusion perpetua should still be imposed pursuant to Article 63(2) of the Revised Penal Code. 33
With respect to the monetary liability of the accused-appellant, the trial court's award of P50,000.00 as moral damages which is automatically granted in rape cases without need of proof 34 is in accordance with prevailing jurisprudence. There is, however, lack of basis for the award of P50,000.00 as exemplary damages.
WHEREFORE, the judgment of the court a quo convicting Lorenzo Andaya of the crime of rape is hereby AFFIRMED with the modification that the penalty imposed is reclusion perpetua, and the accused is directed to pay Nelly Solano, in addition to the amount of P50,000.00 as moral damages awarded by the trial court, the sum of P50,000.00 as civil indemnity. The award of exemplary damages is hereby deleted.1âwphi1.nęt
Davide, Jr., CJ., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena and Ynares-Santiago, JJ., concur.
1 Rollo, p. 3.
2 Tsn, August 8, 1995, pp. 3, 9-10.
3 Tsn, October 5, 1995, pp. 5-7, Tsn, October 6, 1995, pp. 3-4, 7-8, Tsn, November 20, 1995, p. 5.
4 Tsn, November 20, 1995, pp. 4-6.
5 Tsn, October 5, 1995, p. 6.
6 Tsn, August 8, 1995, pp. 6-7.
7 Records, p. 6.
8 Tsn, August 28, 1995, pp. 4-5, 9-10.
9 Tsn, October 6, 1995, p. 13.
10 Tsn, October 5, 1995, p. 4-5.
11 Exhs. "B" and "B-1", Records, pp. 66-67.
12 Tsn, October 3, 1995, pp. 5, 9-12.
13 Tsn, November 21, 1995, pp. 2-10.
14 Tsn, December 12, 1995, pp. 2-7.
15 Tsn, December 12, 1995, pp. 3-5.
16 Rollo, pp. 26-27.
17 Exhibit "B-1", Records, p. 67.
18 Tsn, October 5, 1995, pp. 5-7.
19 Tsn, October 6, 1995, pp. 7-9.
20 Tsn, October 5, 1995 pp. 4-5.
21 People vs. Castillo, Jr., 275 SCRA 753; People vs. Cogonon, 262 SCRA 693; People vs. Cura, 240 SCRA 234.
22 Appellant's Brief at p. 6.
23 People vs. Mariano, 124 SCRA 802.
24 People vs. Guererro, 242 SCRA 606.
25 People vs. Gallano, 108 SCRA 405.
26 People vs. Abendaño, 242 SCRA 531.
27 People vs. Gallano, 108 SCRA 405, People vs. Padilla, 126124, prom. January 20, 1999.
28 Tsn, November 20, 1995, pp. 20-21.
29 People vs. Valdez, 150 SCRA 405; People vs. Aragona, 138 SCRA 569; People vs. Gerones, 193 SCRA 263.
30 People vs. Arbaquez, 216 SCRA 147; People vs. Mañago, 191 SCRA 552.
31 People vs. Antonio, 233 SCRA 283; People vs. Asturias, 134 SCRA 405, People vs. Atento, 196 SCRA 357.
32 Art. 63 Revised Penal Code.
33 People vs. Santos, 94 SCRA 277; People vs. Padilla, supra.
34 People vs. Malapo, G.R. No. 123115, August 28, 1998.
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