PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BRYAN
FERDINAND DY y LA MADRID and GIOVAN BERNARDINO y GARCIA, accused-appellants.
[
G.R. Nos. 115236-37.
January 29, 2002]
Facts:
Gina
and Helen, both American Nationals were studying in China as exchange students.
Having heard of the renowned Filipino hospitality, they decided to spend their
sem-break in the Philippines. During their visit in the Philippines, they went
to several places, and one of which was on Pampanga. While on Pampanga, they
met Accused-appellants Bryan and Giovani who offered them a ride to their
supposed destination, Baguio City. Bryan, Giovani, and Rizal(the driver) drove
the foreigners to Baguio City, and upon arriving at Baguio City, they checked
in at the Benguet Pines Tourist Inn at 11:00 PM and afterwards went out for
some drinks and dancing at the Songs Jazz Bar. The partiesverions of the events
that followed differed.
Prosecution’s Version:
According to Gina and Helen, after having alcoholic
drinks at Jazz Bar, they drove to a convenience store to get some soft drinks
before returning to the hotel.Giovani and Bryan alighted and returned bringing
with them Soft Drinks and food. Both Gina and Helen drank the drinks.
Meanwhile, while drinking their colas, Giovani
drove the group to Club John Hey in order to check on the Club’s billeting
rates. Gina was then about to finish her cola when she felt something gritty in
it which stuck into her teeth; they were like small particles. She dumped out
the remaining contents of the cup out of the car. Helen on the other hand
finished her drink and threw the cup in the trashcan.
After leaving Club John Hay, the group
returned to their hotel. Helen no longer noticed the driver Rizal.There were
two rooms they rented, the boy and the girl’s room. Helen got the key from the
counter and tossed the key to the boys room to Gina who was about seven to ten
feet away and the latter, in turn, gave it to Giovan. Helen also flipped their
key to Gina who caught it with one hand. Gina and Helen went to their room,
while Giovani and Bryan went to theirs.
Gina went out the room and walked towards the
boy’s room. Gina had no recollection why she did so. On the other hand, Helen
remembered that one of the boys asked if she had playing cards but he seemed
pre-occupied with something else, so she did not make any move to get the
playing cards from her bag. Since she was very tired she went to bed.
Thereupon, she lost her memory. Sometime later, she felt like vomiting and went
to the CR, but she could not remember if she really vomited. She lost her
senses and did not know if she went to bed.
She again regained partial consciousness when
she felt being wet on her face and upper chest as though somebody was touching
her with the mouth. She could not see
anyone or anything; she only felt that her personal space was being
violated. She curled up like a baby in
the womb and kept on saying, “no”, until whoever was with her in the room went
away. Then, she lapsed into
unconsciousness.
At this time in the boys’ room, Gina walked up
to one of the beds and lay down on her belly.
Giovan lay alongside her and forcefully kissed her. She could not call to mind what else happened
as she believed she was drugged. She
could only remember that Giovan was trying to take off her pants while she was
trying to prevent him. Giovan was lying on top of her and touching her
breasts. He inserted his fingers into
her vagina but at this precise moment someone knocked on the door.
So, Giovan got up and it was then that Gina
realized that he was completely naked and so was she. He handed the blanket on the bed to her and
she covered her body with it. She saw
lights coming from the hallway and heard Giovan say, “I think she is
asleep.” She could not recall removing
them again. When that someone laid on
top of her, she found out that it was Bryan.
He placed himself between her legs.
She could not recollect if they kissed but she felt his erect penis
against her vaginal opening. She told
him that she did not want to have sex; that she was still a virgin. He asked why she was still a virgin and she
replied that she wanted to wait for a husband. Bryan told her that he won’t put
it in. But Gina felt pain in her vagina
because his penis was going into it.
The thought occurred to Gina that if she did
not do anything, she knew what was going to happen. It dawned on her that if she stimulated him
in some other way, he might not penetrate her further. So, she slid down and did a fellatio or oral
sex on him. She could not explain her
feelings then; to her it was like a nightmare; it was as if she was observing
what was going on and it wasn’t really her; she felt like her head was detached
from her body. She did the oral sex for
only several seconds because it was as if someone went into the room. Then, she became unconscious.
Defense version:
According the Bryan and Giovan, while they
were at Songs Jazz bar, Gina and Helen drank a lot of alcoholic beverages and
mixtures. Bryan had a bottle of beer and
two shots of tequila, while Giovan only drank one bottle of beer. As they went
back to the hotel, they gave to the girls the keys to their room because it was
left at the backseat of the car. After giving the keys, Giovan went to their
room(boy’s room) followed by Rizal and then Gina. On the other hand, Bryan went
with Helen to the girls room where he borrowed Helen’s playing cards.
After, Bryan went back to the boy’s room. They
taught Gina how to play cards inside the room, but Gina never learned. Then
Gina said she was hungry, so Giovan went out to buy food. Giovan left with
Rizal, that was already 4 AM past. Bryan and Gina continued playing cards.
After some time, Gina put down the cards and talked to Bryan. Both laid down
and talked. Afterwards, they ended up kissing each other. She then undressed and
he did the same. As they were about to have sex, Giovan was turned off when,
upon feeling her genitals, his hand was smeared with transparent liquid with
something like brown or dark brown or red substance in it which smelled
awful. He concluded that it was
menstrual fluid. He told her that he could not do the act anymore to which she
replied, “never mind”.
They then put back their clothes on. Bryan went to the comfort room where he
washed his smeared hand. When he came
out, he saw Gina lying in bed with her eyes closed. He switched off the lights and laid beside
her but he could not sleep. He later on
got up and went down to see if Giovan and Rizal had already arrived. However the two had not yet gone back. He returned to their room and, lay down
beside Gina and feel asleep. The sun was
already somewhat up. He went to the
porch to see if their car was already there and he saw it there and found both
Giovan and Rizal sleeping inside the car.
It
was already morning when they woke up. Bryan ordered breakfast, then then he
and Giovan went upstairs to their room.
Gina was still there.
The
girls were still asleep so decided to leave for Bagiuo since they were running
out of time. Before leaving, Brian left a paper with his phone number.
At
around 3pm in the afternoon, Gina woked up very groggy and complained of her
missing things, and the Police was called to investigate. Helen on the other
hand had difficulty regaining her sense and was assisted by the police
investigators.
The
complainant then filed a case for Rape and Acts of Lasciviousness
During the
trial, the prosecution presented two expert witnesses.
Dr.
Torres- found erythema on both the lateral aspects of
the inner part of the labia minora which could have been caused by infection,
scratching or insertion of any foreign object into the introitus. On cross-examination,
she opined that it could also have been caused by the use of tampon during
menstruation. She concluded that no
force could have been applied on Gina’s hymen as it did not have any laceration
or bleeding.
Perineal Exam:
Positive erythema at the lateral aspect of vaginal wall. No lacerations; no bleeding noted.
Internal Exam:
Nulliparous introitus. Vagina admits two fingers with difficulty.
Pregnancy Test:
Negative.
Urinalysis:
negative of sperm cell.
Smear
Identification: Negative for sperm cell.
Dr.
Hernandez- a neuro-surgeon. Based on the set of facts
provided by the private prosecutor, the entries in Gina’s journal and the
transcript of stenographic notes taken during the preliminary examination, he
opined that Gina and Helen were drugged, possibly with lorazepam or ativan,
which is a benzodiazepine.
The
defense presented two expert witnesses to counter Dr. Hernandez’s opinion.
Dr.
San Pedro- a psychiatrist, opined that Gina and Helen
could not have been drugged because they have not been medically examined for
the presence of drugs in their system. Neither were the cups used by Gina and
Helen examined if they were indeed laced with drugs. Instead, the condition described by the girls
based on the documents given by the defense could have been caused by the
alcoholic drinks.
Dr.
Pedro Solis- testified that a person who imbibes alcohol
goes through three stages, namely: (a) stage of excitement; (b) stage of intoxication
or the proprioception stage; and (c) stage of being dead drunk or the toxic
stage. On the basis of the statement of
facts and documents provided him by the defense, Gina was only at the first
stage, the stage of excitement due to her alcohol intake for the following
reasons: she had the power to coordinate when she caught the room key thrown to
her by Helen with one hand; she could properly walk; and she could properly
reason out when she decided to do oral sex on Bryan in order to avoid sexual
intercourse. Dr. Solis explained that
the rather long sleep experienced by Gina and Helen was due to fatigue brought
about by their activities the previous day, their alcohol intake, their youth
and the cool ambience of Baguio City.
He said it could not be definitely concluded
that the girls were drugged because no drug test was conducted. He added that mere observance of the clinical
symptoms can not be a basis for concluding that they were drugged.
Issue(s)/ Ruling:
1. Was there a valid arraignment when
the accused were not furnished a copy of the complaint or information and the
contents of the complaint or information was not read in a dialect or language
known to the accused?
Yes.
The accused themselves refused to be informed of the nature and cause of the
accusation against them. The defense cannot
hold hostage the court by their refusal to the reading of the complaint or
information. Indeed, the defense may waive their right to enter a plea and let
the court enter a plea of “guilty” in there behalf.
Accused-appellants
were substantially informed of the nature and cause of the accusation against
them when their counsel received a copy of the Prosecutor’s resolution
maintaining the charge for rape and acts of lasciviousness. The failure to read
the complaint or information in a language or dialect known to them was
essentially a procedural infirmity that was deemed waived when after the
arraignment, the defense never brought up the supposed invalidity or defect
thereof. Rather, accused-appellants and
their counsel vigorously and fully participated in the trial of the case.
2. Should the crime of acts of
lasciviousness be absorbed by the crime of rape in this case?
No.
It cannot be absorbed since in this case, there was conspiracy. There is no occasion
for the application in this case of the procedural rule that one crime whose
elements are identical with another crime is absorbed by the more serious
crime. There being conspiracy, what is
applicable is the rule that the crime committed by one conspirator is added to
the crime committed by his co-conspirator and vice-versa. This is so because in conspiracy, the act of
one is considered as the act of the other co-conspirator.
3. Was there conspiracy?
Accused-appellants
joint participation in the crime of rape is clear from the trial court’s
findings as follows:
Bryan and
Giovan were both at the Angeles Flying Club when Bryan spotted Gina and
Helen;
x
xx xxx xxx
Upon learning that the girls were coming up to
Baguio City, the boys intimated that they, too, were coming up as they had
planned two weeks earlier and offered the girls a ride with them. The boys’ pretension could not be true
otherwise Bryan, who came from Manila, would have prepared at least a jacket
and some clothes for their well-planned Baguio trip; instead, they had to go
first to a residential area in Angeles City where Bryan borrowed a jacket (two
according to Helen) before driving to Baguio City;
x
xx xxx xxx
At the Songs
Jazz Bar, Bryan and Giovan kept on offering and giving Gina and Helen alcoholic
drinks;
x
xx xxx xxx
Bryan
and Giovan, who went to buy the drinks at Kowloon Restaurant, saw to it that
the two plastic cups of Sprite carried by Bryan be given to Gina and
Helen. They were the drugged cola
drinks;
As
heretofore stated, they detoured through Club John Hay to let Gina and Helen
drink their drug-laced Sprite and have the drug take its initial effect;
When
Giovan was satiating his lust on Gina, Bryan was not around to let Giovan
freely do what he wanted. When Bryan’s
turn came, Giovan also left.
4. Was there rape?(Factual Findings to
prove rape)
YES THERE WAS, because there was:
A. There was Carnal Knowledge
Accused-appellant
Dy insists there was no carnal knowledge between him and complainant. He avers that “the only intimate contact
between them consisted merely of Mobley’s kissing him, holding his penis and
eventually sucking it, and of him in turn kissing her and placing his fingers
in her vagina.
He
claims that Dr. Torres’ and Dr. Solis’ findings were consistent to his
testimony that the cervix was merely reddened and swollen (erythema) at the lateral aspect of the viginal wall
which could have been caused by coitus, infection, scratching, or the use of a
tampon and not solely sex. The Erythema or reddening could not have been caused
by intercourse as said act would have produced not only
irritation on the vaginal wall but also irritation, swelling and reddening of
complainant’s outer genital area. Furthermore, the medical examination results
showed that complainant’s hymen to was intact and that there was no laceration,
bleeding or spermatozoa.
SC
ruled:
Lack
of lacerated wounds does not negate sexual intercourse. A freshly broken hymen is not an essential
element of rape. The presence or absence of spermatozoa is
immaterial in the prosecution of a rape case.
It is well settled that penetration of the woman’s vagina, however
slight, and not ejaculation, constitutes rape.
For
rape to be consummated, full penetration is not necessary. Penile invasion necessarily entails contact
with the labia. It suffices that there
is proof of the entrance of the male organ with the labia of the pudendum of
the female organ. Penetration of the
penis by entry into the lips of the vagina, even without rupture or laceration
of the hymen, is enough to justify a conviction for rape.
Accused-appellant
Dy’s contention fails to persuade. The medical opinions he cites do not totally
rule out penetration or contact of penis with the vagina.
B. Victimswas deprived of reason or
otherwise unconscious
The
proven reaction of Gina and Helen to the cola drinks given them by the accused
unmistakably indicates that they were indeed drugged. The prosecution expert
witness, opined that the sedative-hypnotic drug known as ativan or lorazepam
could probably be the one used.
The
effects of ativan manifested themselves in Gina and Helen but they were more
profound in Helen because she drank all the cola drink spiked with drug and she
is slimmer than the 165-pound Gina who did not finish her cola drink because
when she felt something gritty that stuck into her teeth and dumped out the
rest of her drink.
Gina
slept for approximately thirteen hours while Helen slept for almost eighteen
hours. Gina testified that she normally
sleeps from seven and a half hours to eight hours.
Gina
experienced patchy amnesia, she could remember some of the events happening to
her and in front of her but forget the others.
She
also had disorientation and confusion. Disorientation and confusion, in turn,
produce hypnotic effect, making the one drugged easily suggestible, easily
manipulated and easily taken advantaged of
Gina
likewise had visual hallucination since she had the sensation that it was as if
her head was detached from her body.
She
could resist but she had no means of resisting because ativan is a muscle
relaxant and all her muscles were flaccid or lax.
Since
complainant was drugged, she was effectively deprived of reason if not
effectively rendered unconscious.
Here,
complainant was not totally unconscious but was physically helpless to resist
or effectively communicate her refusal to the lewd desires of accused-appellants. She was aware of the fact of sexual assault
and the identity of her assailants despite her patchy amnesia, disorientation
and confusion.
If
the ability to resist is taken away by administering drugs, even though the
woman may be conscious, sexual intercourse with her is rape. If the woman’s
will is affected by the anesthetic, though she may be more or less conscious,
the act will be rape.
C. There was force or intimidation
Complainant
was found to have been drugged. The obvious implication of drugging complainant
was to render her unconscious or at least unable to resist the malicious and
sexual designs of defendants. By doing so, defendants ensured that complainant
would be in no position to resist or to effectively say “No”.
The
effect of drugging complainant betrays both defendants’ intent to sexually
assault complainant or engage in sexual intercourse with her.
D.
Victim’s credibility was established during trial
Credible witness and credible testimony are the two essential elements
for the determination of the weight of a particular testimony. This principle could not ring any truer where
the prosecution relies mainly on the testimony of the complainant, corroborated
by the medico-legal findings of a physician
Findings of facts and assessment of credibility of witnesses is a
matter best left to the trial court because of its unique position of having
observed that elusive and incommunicable evidence of the witnesses’ deportment
on the stand while testifying, which opportunity is denied to the appellate
courts.
This court agrees with the findings of the trial court which
established/ bolstered the credibility of the witness’s testimony:
a. Demeanor when she was testifying and she was
direct, spontaneous and straightforward, even crying in narrating the sensitive
details of her horrible experience;
b. She demonstrated much care and concern about
her obligation to tell the truth and nothing but the truth under the oath.
c.The victim’s act of crying during her
testimony bolsters the credibility of the rape charge with the verity born out
of human nature and experience.
d.No woman would concoct a
story of defloration, allow examination of her private parts and subject
herself to public trial or ridicule if she has not, in truth, been a victim of
rape and impelled to seek justice for the wrong done to her.
e.If her story had only been contrived, she
would not have been so composed and consistent throughout her entire testimony
in the face of intense and lengthy interrogation. Indeed, if an accused had
really nothing to do with the crime, it is against the natural order of events
and human nature and against the presumption of good faith that the prosecution
witness would falsely testify against the former.
In this case, accused-appellants could not
even come up with a credible motive for complainant to charge them with
rape. At any rate, ill motive is never
an essential element of a crime.
It is doctrinally settled that the lone testimony of a rape
victim, by itself, is sufficient to convict if credible. The accused may be
convicted on the basis of the lone, uncorroborated testimony of the rape
victim, provided that her testimony is clear, convincing and otherwise
consistent with human nature.
WHEREFORE,
in view of the foregoing, the Decision of the Regional Trial Court of Baguio
City, Branch 5, in Criminal Case No. 12600-R, finding accused-appellant BRYAN
FERDINAND DY y LA MADRID and GIOVAN BERNARDINO y GARCIA guilty of Rape, and
sentencing accused-appellant Bryan Dy to suffer an indeterminate penalty of
eight years of prision mayor, as minimum, up to fourteen years and eight
months of reclusion temporal, as maximum, is AFFIRMED. The said
decision, insofar as accused-appellant Giovan Bernardino’s penalty is
concerned, is MODIFIED in that he is sentenced to suffer the penalty of reclusion
perpetua.
The decision of the trial court in
Criminal Case No. 12601-R, finding accused-appellants guilty of Acts of
Lasciviousness and sentencing accused-appellant Dy to suffer the straight
penalty of two months of arresto mayor, and accused-appellant Bernardino
to suffer the indeterminate penalty of two months of arresto mayor, as
minimum, to two years and four months of prisioncorreccional, as
maximum, is AFFIRMED.
