G.R. No. 152279




EN BANC G.R. No. 152279 January 20, 2004 PEOPLE OF THE PHILIPPINES, Appellee, vs. FRANCO BALLESTER, Appellant. D E C I S I O N YNARES-SANTIAGO, J.: Appellant Franco Ballester was charged with Rape before the Regional Trial Court of Ligao, Albay, Branch 13, in Criminal Case No. 4038 in an Information which reads as follows: That on the third week of January, 1999, at noontime, at Barangay Catumag, Municipality of Guinobatan, Province of Albay, Philippines, within the jurisdiction of this Honorable court, the above-named accused, with lewd and unchaste design, by means of force, threat and intimidation and while armed with a knife did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) MARICEL ODOÑO, 12 years of age, against her will and consent, to her damage and prejudice. ACTS CONTRARY TO LAW.1 On arraignment, appellant pleaded "not guilty" to the crime charged, whereupon trial on the merits followed. Sometime in the third week of January 1999, only complainant Maricel Odoño, twelve years old, and her youngest brother, Jeric, two years old, were left inside their house at Catumag, Guinobatan, Albay. On that day, complainant’s father, Jaime, and brother, Jameson, were out working in the cornfield while her mother, Clarissa, was in Manila working as a housemaid. Her two younger sisters were also out, playing with their friends. At around noontime of that day, while complainant was studying her lessons, she heard somebody calling from the outside. She looked out the window and saw her neighbor, appellant Franco Ballester. He asked her for jackfruit. He entered the house holding a knife and threatened complainant not to make a noise. He warned her not to tell her parents or he would kill her. After forcibly undressing complainant, he hurriedly took off his clothes and made her lie down by pressing her hands on the floor. He mounted his victim and inserted his penis into her vagina. She felt pain in her organ but could not tell how long appellant stayed on top of her. After satisfying his lust, appellant repeated his warning not to tell anybody about the incident. At first, complainant was too scared to reveal her harrowing experience to anybody. Eventually, however, she mustered enough courage to confide her ordeal to her aunt, Nilda Ordoño, who in turn informed her mother, Clarissa, via telegram. Immediately upon arriving from Manila in June 1999, Clarissa accompanied her daughter to the barangay captain to report the matter. Shortly after, they went to the Guinobatan Police Station where they were advised to see a doctor for complainant to undergo a medical examination. On 26 July 1999, Dr. Joanna Manatlao, Municipal Health Officer of Guinobatan, Albay, conducted the medical examination on Maricel that resulted in the following findings: 1. healed laceration at 12 o’clock, 2. vagina admits tip of examining finger with ease. During trial, Dr. Manatlao testified that the laceration on the hymen, such as one found on the organ of the victim, may be caused by inserting a foreign object into the vagina such as a penis or finger. She further opined that it may also be caused by a variety of reasons, like menstrual clots of blood, masturbation, sitting on a hard and sharp object or penis of a man.2 In his defense, appellant vehemently denied the accusation against him. He insisted that on the date of the alleged rape incident, i.e. third week of January 1999, he was nowhere near the house of complainant. Rather, he was in Inasakan, where he had been working as coconut picker since December 8, 1998, under the employ of one Francisco Oxina. He had been working in this capacity for the whole month of December, except on the 24th and 31st, and for the whole month of January. He decided to leave his employment in July 1999 to visit his aunt in Pio Duran, Albay. When asked what could be the reason why he was being charged of rape, he explained that it might have something to do with an earlier accusation of rape made by Maricel Odoño against his grandfather, Tomas Ballester. According to him, the Odoños were trying to extort P60,000.00 from his grandfather in exchange for the settlement of the criminal case but his grandfather refused to accede to their demands. On cross-examination, appellant also revealed that the Odoños were a quarrelsome lot, always getting into trouble with their neighbors, that is why they had to change residence every now and then. In fact, according to him, the Odoño children would occasionally get a spanking from his grandfather for being naughty. He also remembered that on one occasion the Ballester family had a confrontation with the Odoños when the former’s carabao grazed into and destroyed the latter’s plantation. On December 14, 2001, the trial court rendered judgment finding appellant guilty as charged and sentencing him to suffer the supreme penalty of death, the decretal portion of which reads: WHEREFORE, judgment is hereby rendered finding the accused Franco Ballester guilty beyond reasonable doubt of the crime of Rape as defined and penalized under Arts. 266-A and 266-B of the Revised Penal Code as amended by Republic Act No. 8353 otherwise known as the Anti-Rape Law of 1997 and accordingly, there being no mitigating circumstance but there is the presence of one aggravating circumstance of dwelling, hereby sentences said accused Franco Ballester to suffer the penalty of death. The accused is hereby ordered to indemnify the offended party the amount of P75,000.00 and another sum of P50,000.00 by way of moral damages, and to pay the costs. Pursuant to the provisions in the constitution, let the records of this case together with the exhibits and transcripts of stenographic notes be immediately forwarded to the Supreme Court for automatic review. SO ORDERED. In his Brief, appellant assails his conviction by arguing that: THE TRIAL COURT ERRED IN GIVING FULL WEIGHT TO THE TESTIMONY OF THE OFFENDED PARTY AND IN NOT GIVING FULL WEIGHT AND CREDENCE TO THE DENIAL AND ALIBI OF THE ACCUSED AND HIS WITNESSES. Appellant argues that the prosecution evidence, particularly the testimony of the offended party and her demeanor, is so incredible that it defies ordinary human experience. He draws attention to the alleged inconsistencies and contradictions in the testimony of the offended party, which cast a heavy pall of doubt on her credibility. According to appellant, the following inconsistencies conclusively demonstrate that complainant’s imputation against him is not worthy of belief: first, the offended party claims that she was raped in the third week of January 1999 but it took her almost six months after the incident to report the alleged sexual assault to her mother; second, she declared on cross-examination that it was after her aunt sent a telegram to her mother that she finally told her father about the incident despite the fact that she was with her father almost everyday; and finally, she stated on cross-examination that upon her mother’s arrival from Manila, they had a conversation about what happened in the shallow well on June 27, 1999 when appellant’s grandfather, Tomas Ballester, supposedly took advantage of her. Appellant points out that the normal thing to do would have been for complainant to tell her mother right away what she suffered in the hands of appellant, but instead of doing so, she divulged another alleged incident of sexual molestation involving appellant’s grandfather. Worse, when complainant was asked by the defense counsel to elaborate on the matter, she could not answer. We find the inconsistencies to be too trivial and inconsequential to affect the credibility of complainant Marilyn Odoño. A truth-telling witness is not always expected to give an error-free testimony, considering the lapse of time and the treachery of human memory. Thus we have followed the rule in accord with human nature and experience that honest inconsistencies on minor and trivial matters serve to strengthen, rather than destroy, the credibility of a witness, especially of witnesses to crimes which shock the conscience and numb the senses.3 More importantly, the alleged inconsistencies referred to by the defense pertain to matters extraneous to the crime of rape that do not detract from the fact that the offended party had indeed been sexually defiled. Neither can appellant find refuge in complainant’s failure to promptly report the sexual assault to her relatives. Long silence and delay in reporting the crime of rape has not always been construed as an indication of a false accusation.4 In fact this principle applies with greater force in this case where the offended party was barely twelve years old, and was therefore susceptible to intimidation and threats to physical harm. The defense of alibi and denial interposed by appellant must likewise fail. For alibi to serve as a basis of acquittal it must be established with clear and convincing evidence, with the requisites of time and place strictly observed. Where the accused fails to convincingly show that it was physically impossible for him to be at the scene of the crime at the time of its commission, as in the instant case, alibi must altogether be rejected.5 In the case at bar, appellant’s insistence that he was in Inasakan at the time of the rape should not be given credence considering that he himself admitted that the residence of the complainant in Catumag was only a two-hour walk away from Inasakan. It is therefore not fanciful to assume that it was not physically impossible for appellant to be at the scene of the crime at the time of its commission. More importantly, it is long settled that the defense of alibi is the weakest of all defenses and the same cannot prevail over the positive identification of the accused. In the instant case, Marilyn categorically and positively identified appellant as the man who entered their house and, without any remorse, sexually assaulted her. She could not have been mistaken as to the identity of the appellant because he was a long-time neighbor. It is simply too puerile for appellant to assume that the failure of the Odoños to extort money from his family could have prompted the complainant to charge him with the serious crime of rape. The force of this argument readily dissipates in the midst of appellant’s admission that his family is so poor, with no substantial worldly possession other than a single carabao. What is undeniable is that complainant would not willingly undergo the ordeal of a public trial, expose herself to the humiliation and stigma attached to a rape victim, and earn the perpetual ire of appellant’s family and relatives, had she not known with certitude that appellant is guilty as charged. In imposing the maximum penalty of death, the trial court took into account the absence of a mitigating circumstance and the presence of one aggravating circumstance of dwelling. This is clearly erroneous. Not being alleged in the Information, dwelling cannot be properly considered in determining the imposable penalty. Indeed, it would be a denial of appellant’s right to be informed of the charges against him which would amount to a denial of due process if he were to be meted the death penalty on the basis of a qualifying circumstance not alleged in the information. Rule 110, Section 8 of the Revised Rules on Criminal Procedure, as amended, provides that the complaint or information shall state the designation of the offense given in the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstance. In the Appeellee’s Brief, the Solicitor General’s theorizes that since the trial court made a categorical finding that the crime was committed with the use of deadly weapon (knife), which aggravating circumstance was also alleged in the Information, there is a need to replace dwelling with the use of deadly weapon. The Solicitor General’s posture is well taken. The Information in the instant case alleges that the appellant committed the rape by means of force, threat and intimidation and while armed with a knife, hence, he was indicted for rape qualified with the "use of deadly weapon." As clearly shown in the trial court’s decision, appellant’s act of threatening the offended party with a knife, which enabled him to have sexual congress with her, constitutes the crime of rape qualified with the use of deadly weapon.6 As such, he should be convicted under Articles 266-A and 266-B of the Revised Penal Code as amended by Republic Act No. 8353, which read: 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 circumstances: a. Through force, threat, or intimidation; x x x x x x x x x Article 266-B. Penalties. – Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. "Whenever the rape is committed with the use of deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death." x x x x x x x x x Being in the nature of a qualifying circumstance, "use of deadly weapon" increase the penalties by degrees, and cannot be treated merely as a generic aggravating circumstance which affect only the period of the penalty. This so-called qualified form of rape committed with the use of deadly weapon carries a penalty of reclusion perpetua to death. As such, the presence of generic aggravating and mitigating circumstances will determine whether the lesser or higher penalty shall be imposed. When, as in this case, neither mitigating nor aggravating circumstance attended the commission of the crime, the minimum penalty, i.e. reclusion perpetua, should be the penalty imposable pursuant to Article 63 of the Revised Penal Code. The award of civil indemnity in the amount of P75,000.00 must likewise be modified.1âwphi1 Such amount can only be awarded if the crime of rape was effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable mandatory laws.7 Since the penalty is less than capital, the civil indemnity must be reduced to P50,000.00. Moral damages should also be awarded the victim in the amount of P50,000.00 without need of proof showing that she suffered from mental, physical, and psychological trauma as these are too obvious to require recital by the victim during trial. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Ligao, Albay, Branch 13, in Criminal Case No. 4038, finding appellant Franco Ballester guilty beyond reasonable doubt of the crime of rape is AFFIRMED with MODIFICATIONS. As modified, appellant is sentenced to suffer the penalty of reclusion perpetua, and is further ordered to INDEMNIFY the victim the reduced sum of P50,00.00 as civil indemnity, in addition to P50,000.00 as moral damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Footnotes 1 Rollo p. 8. 2 TSN, January 11, 2001, pp. 10-13. 3 People v. Loto, G.R. Nos. 114523-24, 5 September 1995, 248 SCRA 59. 4 People v Alimon, G.R. No. 87758, 28 June 1996, 257 SCRA 658. 5 People v. Cañada, G.R. No. 112176, 6 February 1996, 253 SCRA 277; People v. Terrible, G.R. No. 140635, 18 November 2002; People v. Purazo, G.R. No. 133189, 5 May 2003. 6 People v. Barrientos, G.R. No. 119835, 28 January 1998, 221 SCRA 285; People v. Baroy, G.R. Nos. 137520-22, 9 May 2002. 7 People v. Metin, G.R. No. 140781, 8 May 2003. The Lawphil Project - Arellano Law Foundation