FIRST DIVISION

[G.R. Nos. 115236-37. January 29, 2002.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BRYAN FERDINAND DY y

LA MADRID and GIOVAN BERNARDINO y GARCIA, Accused-Appellants.

DECISION

YNARES-SANTIAGO, J.:

Accused-appellants Bryan Dy and Giovan Bernardino were charged with Rape and Acts
of Lasciviousness in a complaint initiated by Gina Marie Mobley under the following
informations:chanrob1es virtual 1aw library

Criminal Case No. 12600-R: chanrob1es virtual 1aw library

That on or about the 12th day of January, 1994, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually aiding one another, did then and there willfully, unlawfully
and feloniously and taking advantage of the unconscious state of the complainant who
was then under the influence of drugs, have carnal knowledge of the complainant GINA
MARIE MOBLEY, against her will and consent.

CONTRARY TO LAW.

Criminal Case No. 12601-R: chanrob1es virtual 1aw library

That on or about the 12th day of January, 1994, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, actuated by
lust with lewd design and with deliberate intent to satisfy their lascivious desire,
conspiring, confederating and mutually aiding one another, did then and there willfully,
unlawfully and feloniously kiss her, fondle her breast, undress her and insert their
fingers into her vagina, who was then unconscious by reason of the drugs employed on
her by the accused, all against her will and without her consent, thereby inflicting upon
the latter moral shock, fright, humiliation, dishonor and besmirched reputation on the
part of the complainant and her family.

The two cases were tried jointly. Accused-appellants refused to be arraigned and enter
a plea; hence, a plea of "not guilty" was entered on their behalf.

During the trial, the following undisputed facts were established: Complainant Gina
Marie Mobley, together with her companion Helen Kathleen Tennican, both American
nationals, were exchange students at the Chengdu University of Science and
Technology in Chengdu, Sichuan, China. Gina was taking up Biology. Helen was also a
Biology major and took Chinese Studies as an additional course. Both were enrolled at
the Pacific Lutheran University at Tacoma, Washington, where Gina was a university
scholar.
Having heard of the renowned Filipino hospitality from their Filipino-American friends,
Gina and Helen decided to spend their semestral break in the Philippines. They arrived
in the country on January 10, 1994. They stayed overnight in Manila then went to
Angeles City the next day. In Angeles City, they visited a bar and had cocktails, played
billiards and went disco dancing.

The following morning, January 12, 1994, they flew over Mt. Pinatubo and viewed the
lahar covered areas on board an ultralight plane. That afternoon, they were driven from
their hotel to the Philippine Rabbit Bus terminal in Dau, Pampanga, where they were
supposed to take a ride to Baguio City. While waiting for their bus, they went to a
Shakey’s Pizza Parlor near the terminal.

Gina and Helen took the table near the comfort room. Accused-appellants Bryan and
Giovan, who are brothers-in-law, were seated at the next table. With them was their
driver, Rizal. Bryan recognized the two girls from the Angeles Flying Club, where Gina
and Helen rented the ultralight plane. Gina went to the comfort room. Bryan and
Giovan approached Helen and introduced themselves. They invited Helen to join them
at their table but she declined.

While Brian and Giovan were still talking to Helen, Gina returned. She presumed that
Helen knew them, so she started to talk with the boys. Gina told them they came to the
country to see the sights and that they wanted to experience Filipino hospitality. Since
they could hardly hear each other above the din of the TV, the girls agreed to join them
at their table. The girls talked about their plan to go to Baguio City and Banaue. Bryan
and Giovan offered the girls a ride to Baguio City. Gina and Helen talked the matter
between themselves. Eventually they accepted the offer thinking that they could save
some money. Besides, they thought the boys looked nice and trustworthy.

They left Shakey’s at 7:30 in the evening and boarded a white 1991 four-door
Mitsubishi sedan. Rizal took the wheel, while Bryan sat at the front passenger seat.
Helen, Gina and Giovan stayed on the back seat, in that order. Before proceeding to
Baguio, they stopped at a residential area where Bryan delivered some papers and
picked up some jackets.

On their way to Baguio, they talked about school. The girls told them about their
boyfriends, while Bryan talked about his Italian ex-girlfriend. Rizal and Giovan did not
join in the conversation at all. Bryan asked Gina whether she has taken drugs, but Gina
replied that she only drinks alcohol occasionally.

The group arrived in Baguio City at 10:45 in the evening. They proceeded to the house
of Bryan’s uncle, but shortly afterwards, they left to look for another place to stay. They
went to the Terraces Hotel but found the rates too expensive. Then, they checked the
Baden Powell. The girls found the dormitory style accommodations to their liking and
were about to unload their things, when Bryan suggested the Benguet Pines Tourist
Inn, which he said he had already tried and had found to be a very fine hotel.

They checked in at the Benguet Pines Tourist Inn at 11:00 in the evening. They got two
rooms on opposite sides of the corridor on the second floor. After a while, Bryan and
Giovan asked the girls out for some drinks and dancing at the Songs Jazz Bar along
Session Road.

The parties’ versions of the events that followed differed.

According to Gina and Helen, while at the Songs Jazz Bar, Helen drank a margarita,
tequila and blowjob with plenty of water. Gina drank Singaporean sling, blowjob and
half a glass of Giovan’s mai tai. Bryan drank just one shot of tequila while Giovan drank
half a glass of mai tai. They also had appetizers. Gina and Helen did not feel
intoxicated. They just felt warm.

On the other hand, Bryan and Giovan narrate that Helen drank margarita, daiquiri,
tequila and blow job while Gina had Singaporean sling, tequila, blow job and mai tai.
Bryan had a bottle of beer and two shots of tequila while Giovan only drank one bottle
of beer. They ordered chicken wings and kropeck chips. chanrob1es virtua1 1aw 1ibrary

After the group left Songs Jazz Bar, Gina’s and Helen’s account went as follows: chanrob1es virtual 1aw library

As they were pulling away, Giovan, who was driving, said that he was thirsty and
wanted to buy cola drinks. Gina agreed to have one (See Exhibit "B-2"). But Helen
declined since she had drank plenty of water already at the Songs Jazz Bar (Ibid.).
Giovan then drove to what the girls called a convenience store because it was open at
odd hours, but which is actually the Kowloon Restaurant, according to the boys. Giovan
and Bryan alighted and returned after some ten minutes with Giovan carrying three
plastic cups of Sprite or Seven-Up and Bryan, two cups and a plastic bag containing
Chinese food with small lemons to be squeezed on it. Bryan gave Helen and Gina a cup
each. Since she thought it impolite not to drink what was given her, Helen removed the
cover of her cup and sipped from it as there was no straw, although the cup cover had
a hole into which a straw is to be inserted. On the other hand, Gina did not at first
remove the lid of her cup (See Exhibit "4"); she just sucked from the hole intended for
the straw (Exhibit "4-B"). But later on she took off the cover (Exhibit "4-A") and drunk
from the cup.

Meanwhile, as they were drinking their cola drinks, Giovan drove the group to Camp
John Hay (should be Club John Hay) where he told the guards at the gate that they
were just going to check on the Club’s billeting rates. They parked in front of the
billeting office. Gina was then about to finish her cola drink when she felt something
gritty in it which stuck into her teeth; they were like small particles. She spat them
back into the cup and dumped out the remaining contents of the cup outside the car
and thereafter gave the cup to Giovan who threw it into a trash can. Gina commented
out loud about the gritty substance in her drink and related that in China they often
found strange things in their food. There was no word from the boys. Helen finished her
drink and then handed the empty cup to Giovan who likewise threw it into a trash can.
1

After leaving Club John Hay, the group returned to their hotel. The girls went on to
narrate:chanrob1es virtual 1aw library

Giovan, Gina, Bryan and Helen, in that order entered. Helen no longer noticed where
Rizal was. Giovan directly proceeded upstairs and stopped on the stair just above the
first landing while Gina followed him and stopped on the first landing. Helen got the
keys to their room while Bryan was behind her talking to the desk clerk. Helen 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. Helen waited for Bryan and they went upstairs together. Gina was trying to open
her and Helen’s room with difficulty and so the latter got the key from her and opened
the door. Both entered the room briefly and when Helen was still by the doorway, Gina
went out and walked towards the boys’ room. Gina had no recollection why she did so;
all she could recall was that she was standing inside the boys’ room.

On the other hand, Helen remembered that one of the boys asked if she had playing
cards but he seemed preoccupied with something else, so she did not make any move
to get the playing cards from her bag. Since she was very tired she entered their (girls’)
room, took off her contact lenses in the comfort room, put them in her contacts case
and went to bed. Thereupon, she lost her memory. Sometime later, she felt the
sensation of wanting to vomit and ran to the comfort room in panic that she might not
get there on time. However, she did not know if she vomited. She lost her sense of
time and did not know if she ever went back to bed. She had never felt that way
before.

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 tell if her
eyes were open but, in any event, 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 noticed that one of the boys pushed the two beds
in the room together. She 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 by holding on to its
elastic waist line. Giovan was all along kissing her with his tongue in her mouth, 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. More words were in her mind but she
could not speak them out. 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. 2

Again, Bryan and Giovan had a different story: chanrob1es virtual 1aw library

[F]rom the Songs Jazz Bar they went to Kowloon Restaurant because Bryan was hungry
and wanted to eat siomai and chicken pao with Sprite. Gina and Helen also wanted
Sprite while Giovan and Rizal, grape juice and root beer, respectively. Giovan and Rizal
went down to buy all these. They made their orders through a small window because
the main entrance to the restaurant was already closed. They returned with Rizal
holding three plastic cups of Sprite with ice in them and Giovan, root beer and grape
juice and two plastic bags containing siomai and chicken pao. Then, Giovan drove them
to John Hay because one of the girls wanted to see the place. That was already past
2:00 o’clock in the morning of January 13. They pulled over the premises of the
billeting area because Giovan told the guards at the gate that they would just check on
the billeting rates. Giovan went to the billeting office where he stayed for about ten
minutes. In the meantime, those left in the car finished their drinks and Bryan collected
the cups and threw them into a trash can at the farther left side of where they parked.
They were at John Hay for less than 15 minutes. Then, they left for the Benguet Pines
Tourist Inn at about 2:00 o’clock in the morning of January 13. 3

As to the events that occurred at the hotel, Accused-appellants had this to say: chanrob1es virtual 1aw library

Bryan, Helen, Gina and Rizal got off the car ahead as Giovan went to park it. Giovan
got the key to their room from the car’s glove compartment and picked up the key to
the girls’ room from the backseat of the car because he saw it lying there. He averred
that they did not leave their hotel keys at the front desk when they left for the Songs
Jazz Bar since there was no one there at the time. After giving the girls’ key to them at
the hallway where they were talking with Bryan, he went to their 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 had entered the boy’s room, they joined together the two beds inside and
sat on them (Exhibit ‘8"). They taught Gina how to play Russian poker or what is
commonly called pusoy for more than thirty minutes. But Gina never learned the game
and so they switched to blackjack. Then, Gina said that she was hungry. Giovan offered
to go out and buy what Gina wanted, to which the latter replied that any food will do.
Giovan left with Rizal. That was already past 4:00 o’clock in the morning of January 13.
After Giovan had closed the door, she and Bryan continued playing blackjack. After
some ten minutes, Gina put down the playing cards and said that she just wanted to
talk with Bryan. She lay down on her left side facing Bryan with her left hand
supporting her head. Bryan moved up on the bed until his face was on the same level
as Gina’s. Their heads were more than a foot but less than two feet away from each
other. While they were talking Gina was stroking Bryan’s head, may be six times. Bryan
just kept silent as he did not know what to do. On the other hand, Gina was smiling at
him. He then smacked her on the lips. She kissed him back and they started kissing
each other. Gina inquired if he had sex before and he replied, "yes", although it was not
true because he was afraid that Gina might laugh at him if he told the truth that he has
no experience in lovemaking. Bryan shot back a similar question to her and she
answered that she has not had sex yet and is still a virgin as she wanted to preserve
her virginity for her future husband. At this point they again kissed each other. Then,
Gina asked if Bryan had a condom and the latter said, "none." She remarked that she
was worried about AIDS and he told her that he is not afflicted with the disease.
Thereupon, Gina said that if they are to do it, he should not tell it to anyone to which
he commented that he is not the kiss-and-tell type. She then undressed and he did the
same. They went back to bed and resumed kissing each other. Gina went on top of
Bryan and then she slid down and kissed the area around his organ and later did a
fellatio on him. After he had climaxed, Gina moved up and wanted to kiss him but he
did not react. She then asked him to enter her and he replied, "yes", and touched her
breasts. However, he 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 because
earlier when they were playing cards something fell from Gina’s jogging pants which he
picked up. When he handed it to her, she commented that it was tampon used for
menstruation. 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 security guard told him that the two had not yet gone back. He returned
to their room and, again, lay down beside Gina. This time he fell 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. He went down to the car and found both Giovan and Rizal sleeping inside
the car: Rizal on the driver’s seat with Giovan beside him. 4

Giovan claimed that he and Rizal bought food for Gina at the Kowloon Restaurant.
When Giovan returned to the room, however, he found Bryan and Gina sleeping. So he
just ate the food that they bought. He slept in the car with Rizal until Bryan woke them
up.

Bryan related to Giovan what had transpired between him and Gina. Giovan teased
Bryan that he might get AIDS. Giovan told Bryan that he would like to go home to his
wife. Bryan ordered breakfast, then he and Giovan went upstairs to their room. Gina
was still there. They asked her if she would like some breakfast, but she said no.

Bryan and Giovan then got their things and went downstairs. Bryan finished his
breakfast. Bryan told Giovan that they should wait for the girls to wake up before
leaving Baguio. They went first to the driving range at Camp John Hay, but it was full,
so they just went back to the hotel. It was 8:00 in the morning. Bryan wrote his phone
number on a piece of paper to give to the girls, since he had promised to show them
around Manila. They went upstairs to the girls’ room and found Gina there. Both girls
were still sleeping. Bryan roused Gina and asked her if it was alright for them to leave.
Gina said, "Yes." Before leaving, Brian left the paper with his phone number.

Gina testified that she passed out after doing oral sex on Bryan. She woke up at 3:00 in
the afternoon feeling groggy and confused. She was shocked to realize what time it
was, since she normally sleeps only seven and a half to eight hours a day. She also felt
tired. She could not remember how she was able to get back to their room. She also
felt that her hair, pillow and underwear, which was on the floor, were wet. She
remembered that check-out time at the hotel was at 12:00 noon. She opened her purse
to get money to pay for the room, but found that her US$290.00, P2,000.00, 300 yuan
and US$200.00 traveller’s check were all missing. Only her US $100.00 traveller’s
check was left. She tried to wake Helen up but the latter only rolled over.

She got up and went out of the room, but she had difficulty balancing herself. She
walked to the boys’ room but found that the door was already open and the beddings
had been changed. She ran downstairs and met Hilda, a hotel desk girl, who asked her
if she was alright. Gina cried and told her that she had been robbed. Hilda said she will
call the police. Gina returned to their room to wake up Helen but the latter still did not
wake up.

After sometime, Gina again went downstairs and was introduced to five or six members
of the Criminal Investigation Service (CIS). She told them that she was robbed and
sexually molested and narrated to them what had happened. Two CIS agents drove
Gina to look for the house of Bryan’s uncle but Gina could not find it.

The hotel owner, Mrs. Delos Santos, asked two hotel guests, Mariano Robles, Jr. and
Rizza Lao, for assistance in helping Gina. Together, they went upstairs and found Helen
still asleep. She was wearing black tights and a green sweatsuit. A bra lay on the table.
Mrs. Delos Santos tried to wake her up. It took a while before Helen opened her eyes
and gazed around her. Mrs. Delos Santos introduced Mariano and Rizza. Helen said
nothing. Rizza propped her up with a pillow on her back. Helen appeared sleepy,
helpless and unable to move. When Rizza asked her what happened, she just cried.
They thought she was drunk but her breath did not smell of alcohol. Someone brought
in a bowl of soup and Rizza let her sip from it a little at a time. Helen tried to eat it with
a spoon but her hands trembled and she could not put the spoon properly into her
mouth. It took her about 30 minutes to finish the soup.

Mariano and Rizza decided to take Helen for a walk to let her blood circulate. Rizza
helped her into her sandals and pulled her to the side of the bed. Helen tried to stand
up but she fell back. Mariano held her on both arms and pulled her up. He stood on
Helen’s right side, held her right arm with his right hand and placed his left arm around
her waist. Rizza held Helen’s left arm. Mariano and Rizza tried to move forward but
Helen could not take a single step. Mariano dragged her forward and she made shaky
steps.

On the stairway, Mariano had to remind Helen that they were going downstairs. He
guided her every step until they reached the hotel lobby. From the hotel, they walked
around Burnham Park for about fifty (50) minutes to an hour. Everytime they came
upon a stairway, Mariano had to instruct Helen how to go down step by step. Whenever
Helen got tired, they sat on a bench. They did this four (4) or five (5) times. Mariano
had to support Helen’s back every time they sat down on the park benches to prevent
her from falling over.

When they returned to the hotel, they saw Gina. Mariano and Rizza invited the two girls
to have dinner with them. Gina declined. They took Helen to the Barrio Fiesta
Restaurant along Session Road. Again, they had to assist Helen in getting out of
Mariano’s car. At the restaurant, Helen hardly ate.

On the witness stand, Helen recounted that at that time she felt as if the effects of
anesthesia was wearing out. She was disoriented and groggy. She was dizzy and did
not feel like waking up. She had difficulty focusing on a single object. The act of walking
was itself an ordeal.

The following morning, Helen still felt groggy and had difficulty concentrating and
walking. She and Gina decided to go to Baguio General Hospital for a urinalysis and
pelvic examination. Dr. Mildred Torres, who conducted the tests, made the following
findings:chanrob1es virtual 1aw library

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.

Uterus: small. Adnexae: negative. Bleeding: negative.

Discharge: minimal; whitish.

Specimen taken for sperm analysis and gram straining. Urinalysis and pregnancy test
requested.

Result: Pregnancy Test: Negative.

Urinalysis: Epithelial cells: occasional. Amorphous Urates: moderate. Pus cells 0-3.
RBC: 0-2

Gram Stain: Smear shows gram (-) reds.

Pus cells: chanrob1es virtual 1aw library

Epithelial cells: many.

Smear Identification: Negative for sperm cell.

Dr. Torres also 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. Ruling out infection due to the absence of purulent or
yellowish discharge, she supposed that it could have been caused by scratching or
coitus. 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.

Gina likewise underwent urinalysis and her urine sample yielded negative of sperm cell.
She did not, however, undergo drug testing as there were no facilities for such
anywhere in Baguio City.

The prosecution presented Dr. Francisco Hernandez, a neuro-surgeon, as expert

witness to corroborate Gina’s testimony that she was drugged. Dr. Hernandez testified
that in the practice of his profession, he uses sedative-hypnotic drugs belonging to the
benzodiazepine family of drugs. According to him, he uses these drugs as tools, such
that whenever he sees a patient, he can form an opinion on whether he or she has
been drugged.

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 conducted by the trial court in the afternoon of January 26 and 27, 1994,
Dr. Hernandez 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.
Rey 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. He added,
though, that while Gina’s behavior as described in her journal might have been caused
by ativan, he did not have any basis to conclude the same in much the same way that
he concluded that said behavior was caused by alcohol. He conceded that if ativan were
to be taken with alcohol, there would be a potentiating effect, meaning, that because of
the alcohol, the effect of the ativan would last longer or there would be sedation.

The second expert witness, 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. He conceded, though, that ativan and
some other benzodiazepines are relatively new drugs and, as yet, he has had no
experience observing its effects except from what he has read. Like Dr. San Pedro, he
stated that if alcohol is ingested with any of the psychotropic drugs like ativan, a
potentiating effect would be produced in the sense that the pharmacologic effect of the
drug is increased.

The trial court gave credence to the version of the prosecution. On March 16, 1994, it
rendered a decision the dispositive portion of which is as follows:
chanrob1es virtual 1aw library

WHEREFORE, the Court hereby finds and declares both the accused BRYAN FERDINAND
DY y LA MADRID and GIOVAN BERNARDINO y GARCIA guilty beyond reasonable doubt
of the crimes of rape and acts of lasciviousness as charged and —

(a) In Crim. Case No. 12600-R, for rape, DY is sentenced, after appreciating in his favor
the privileged mitigating circumstance of minority and the generic mitigating
circumstance of voluntary surrender, to suffer an indeterminate penalty of EIGHT (8)
YEARS of prision mayor, as minimum, to FOURTEEN (14) YEARS and EIGHT (8)
MONTHS of reclusion temporal, as maximum; while BERNARDINO is sentenced, likewise
after appreciating in his favor the mitigating circumstance of voluntary surrender, to
suffer an indeterminate penalty of TWELVE (12) YEARS and ONE (1) DAY of reclusion
temporal, as minimum, to TWENTY (20) YEARS and ONE (1) DAY of reclusion perpetua,
as maximum. Both accused are ordered to pay the offended party GINA MARIE MOBLEY
in the amounts of: P50,000.00 for her being raped, P12,195.00 (the equivalent of
US$450.00 dollars at the exchange rate of P27.10 to US$1.00) as actual damages, and
P500,000.00 as moral damages, plus costs.

(b) In Crim. Case No. 12601-R, for acts of lasciviousness, DY is sentenced, after
applying in his favor the same mitigating circumstances mentioned above, to suffer a
straight penalty of TWO (2) MONTHS of arresto mayor; and BERNARDINO is sentenced,
likewise after applying to him the same mitigating circumstance stated above, to suffer
an indeterminate penalty of TWO (2) MONTHS OF arresto mayor, as minimum, to TWO
(2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum. Both accused
shall also indemnify, jointly and severally, the offended party, GINA MARIE MOBLEY, in
the amount of P100,000.00 for and as moral damages, plus costs.

Both accused shall furthermore pay, jointly and severally, the offended party attorney’s
fees in the amount of P100,000.00 in the two cases.

The accused BERNARDINO shall be credited with his preventive imprisonment under the
terms and conditions prescribed in Article 29 in relation to Article 70 of the Revised
Penal Code, as amended.

SO ORDERED 5

Accused-appellants filed separate appeals. Accused-appellant Bryan Dy assigned the

following errors: chanrob1es virtual 1aw library

A. Errors of Law

I. THE DECISION RENDERED BY THE TRIAL COURT SHOULD BE REVERSED AND SET
ASIDE ON THE GROUND THAT NO VALID ARRAIGNMENT TOOK PLACE DURING THE
TRIAL BELOW.

II. EVEN ASSUMING THAT THE PROCEEDINGS BELOW WERE VALIDLY CONDUCTED,
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF RAPE AND OF
ACTS OF LASCIVIOUSNESS BECAUSE: chanrob1es virtual 1aw library

a. THE CHARGE OF ACTS OF LASCIVIOUSNESS SHOULD HAVE BEEN DEEMED

INCLUDED IN THE CHARGE OF RAPE. chanrob1es virtua1 1aw 1ibrary

b. THE LOWER COURT ERRED IN USING THE TESTIMONY OF DR. PEDRO SOLIS, THE
EXPERT WITNESS FOR THE DEFENSE, GIVEN BY HIM MORE THAN TWENTY YEARS AGO
IN THE CASE OF PEOPLE V. CESAR GUY, 12 C.A. REP. 2ND 258, TO DISCREDIT THE
TESTIMONY GIVEN BY HIM DURING THE TRIAL BELOW.
B. Errors of Fact

III. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF RAPE BECAUSE: chanrob1es virtual 1aw library

a. THERE WAS IN FACT NO CARNAL KNOWLEDGE;

b. THE PRIVATE COMPLAINANT WAS NOT DEPRIVED OF REASON OR OTHERWISE

UNCONSCIOUS;

c. THERE WAS NO FORCE OR INTIMIDATION.

IV. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF ACTS OF

LASCIVIOUSNESS BECAUSE: chanrob1es virtual 1aw library

a. THERE WAS NO ACT OF LEWDNESS COMMITTED;

b. THE PRIVATE COMPLAINANT WAS NOT DEPRIVED OF REASON OR OTHERWISE

UNCONSCIOUS; and

c. THERE WAS NO FORCE OR INTIMIDATION.

V. THE TRIAL COURT ERRED IN NOT FINDING THAT THE SUBSEQUENT ACTS OF
APPELLANT ARE NOT CONSISTENT WITH THE ACTS OF A PERSON WHO HAD JUST
COMMITTED AN OFFENSE.

VI. THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE COMPLAINANT’S
SUBSEQUENT ACTS AND STATEMENTS MADE AS PART OF THE RES GESTAE SHOW
THAT SHE HAD NOT BEEN MOLESTED.

VII. THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE COMPLAINANT’S
CREDIBILITY HAS BEEN IMPEACHED.

VIII. THE TRIAL COURT ERRED IN NOT FINDING THAT THE CREDIBILITY OF THE
OTHER PROSECUTION WITNESSES HAS BEEN IMPEACHED. 6

Accused-appellant Giovan Bernardino, on the other hand, assigns the following errors:
1aw library
chanrob1es virtual

I. THE TRIAL COURT FAILED TO ACCORD THE CONSTITUTIONAL RIGHTS OF THE

ACCUSED TO DUE PROCESS OF LAW THUS DEPRIVING THEM OF A FAIR TRIAL.

II. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A CO-
CONSPIRATOR IN THE CRIME OF RAPE BECAUSE THERE WAS NO CARNAL KNOWLEDGE
BETWEEN BRYAN DY AND PRIVATE COMPLAINANT.

III. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A CO-
CONSPIRATOR IN THE CRIME OF RAPE BECAUSE NEITHER FORCE NOR INTIMIDATION
WAS EMPLOYED NOR WAS THE PRIVATE COMPLAINANT DEPRIVED OF REASON OR
OTHERWISE UNCONSCIOUS.
IV. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY AS A CO-
CONSPIRATOR IN THE CRIME OF RAPE BECAUSE BRYAN DY LACKED THE REQUISITE
DOLO OR CRIMINAL INTENT TO COMMIT THE SAID INTENTIONAL FELONY.

V. THE TRIAL COURT ERRED IN CONCLUDING THAT GIOVAN BERNARDINO WAS A CO-
CONSPIRATOR IN THE CRIME OF RAPE BY REASON OF CONSPIRACY OR THAT HE
PARTICIPATED IN ANY WAY IN THE ALLEGED CRIME.

VI. THE TRIAL COURT ERRED IN FINDING GIOVAN BERNARDINO GUILTY OF THE
CRIME OF ACTS OF LASCIVIOUSNESS BEYOND REASONABLE DOUBT.

VII. THE TRIAL COURT ERRED IN DECLARING THAT THE CRIME ALLEGEDLY
COMMITTED WAS QUALIFIED RAPE, AND IN FAILING TO CREDIT ACCUSED-APPELLANT
GIOVAN BERNARDINO WITH THE MITIGATING CIRCUMSTANCE OF MINORITY.

VIII. THE TRIAL COURT ERRED IN ORDERING BOTH ACCUSED-APPELLANTS IN

CRIMINAL CASE No. 12600-R TO PAY THE PRIVATE COMPLAINANT FIFTY THOUSAND
PESOS FOR THE ALLEGED RAPE, ACTUAL AND MORAL DAMAGES PLUS COSTS; AND IN
CRIMINAL CASE No. 12601 TO MORAL DAMAGES PLUS COSTS. 7

The defense contends that there was no valid arraignment since they were not
furnished a copy of the complaint or information. Moreover, the complaint or
information was not read in a dialect or language known to them. While they waived
their right to enter a plea, they claim that they never waived their right to be informed
of the nature and cause of the accusation against them.

Concededly, the right to be informed of the nature and cause of the accusation may not
be waived. Indeed, the defense may waive their right to enter a plea and let the court
enter a plea of "not guilty" in their behalf. However, it becomes altogether a different
matter if the accused themselves refuse to be informed of the nature and cause of the
accusation against them. The defense can not hold hostage the court by their refusal to
the reading of the complaint or information.

The reason proffered by accused-appellants’ for their refusal to be arraigned, i.e., that
to do so would supposedly constitute a waiver of their right to appeal the resolutions of
the prosecutor to the Secretary of Justice, 8 appears to be specious. Evidently accused-
appellants only wanted the trial court to suspend the arraignment to enable them to
exhaust their remedy of appeal to the Secretary of Justice. However, Accused-
appellants had no valid ground to move that their arraignment be held in abeyance,
considering that at that time they had not filed a petition for review of the prosecutor’s
resolution before the Department of Justice. In Solar Team Entertainment, Inc. v. How,
9 this Court has held that:chanrob1es virtual 1aw library

Procedurally speaking, after the filing of an information, the court is in complete control
of the case and any disposition therein is subject to its sound discretion. The decision to
suspend arraignment to await the resolution of an appeal with the Secretary of Justice
is an exercise of such discretion.

x           x          x
It bears stressing that the court is however, not bound to adopt the resolution of the
Secretary of Justice since the court is mandated to independently evaluate or assess
the merits of the case, and may either agree or disagree with the recommendation of
the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice
would be an abdication of the trial court’s duty and jurisdiction to determine prima facie
case.

As the Solicitor General correctly observed, thus: chanrob1es virtual 1aw library

. . . [A]ssuming, arguendo, that appellants were not validly arraigned, such defect, if
any, was waived when appellants, without objection, proceeded to trial as if they have
been duly arraigned (22 C.J.S. 626). Any irregularity in an arraignment, such as failure
to deliver a copy of the indictment, or to read the same to accused, or delivering the
same to the attorney of the accused, instead of to the accused himself, is waived by
failure to object thereto in the trial court (Ibid., p. 628).

x           x          x

It is also important to stress that to nullify the proceedings had before the court a quo
would set a dangerous precedent. For, all that an accused would do is to refuse to be
arraigned and then proceed to trial, and if found guilty would just invoke the absence of
arraignment to set aside the proceedings had in the trial court. Such practice would run
counter to the purpose and spirit of our rules of procedure which is: to help achieve an
orderly and speedy disposition of cases. 10

Nonetheless, 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. 11 The failure to
read the complaint or information in a language or dialect known to them was
essentially a procedural infirmity that was eventually non-prejudicial to Accused-
Appellants. Not only did they receive a copy of the information, they likewise
participated in the trial, cross-examined the complainant and her witnesses and
presented their own witnesses to debunk and deny the charges against them. The
conduct of the defense, particularly their participation in the trial, clearly indicates that
they were fully aware of the nature and cause of the accusations against them.

Interestingly, 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.

Accused-appellants are clearly estopped to question the alleged invalidity of or infirmity

in their arraignment. By actively participating in the trial of the case, they have
effectively waived whatever procedural error there was in their arraignment. In short,
whatever was the defect in their arraignment was substantially cured by their own
omission and subsequent actions.

Accused-appellants next submit that the crime of acts of lasciviousness should have
been absorbed by the crime of rape.

The Office of the Solicitor General disagreed arguing, thus: chanrob1es virtual 1aw library

While it may be true that in certain cases, the crime of acts of lasciviousness may be
considered absorbed by the crime of rape, in the instant ease, it cannot be so because
the two crimes were committed by two different persons acting in conspiracy. Such
being the case, there is no occasion for the application 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. In the case under consideration, while appellant Bernardino has
committed the crime of acts of lasciviousness, his co-conspirator appellant Bryan Dy,
committed the crime of rape. They are, therefore, liable for both offenses in view of the
presence of conspiracy.

Appellants, in insisting that the crime of acts of lasciviousness should have been
absorbed by the crime of rape, misappreciated the application of Section 5, Rule 120
(when an offense includes or is included in another) of the Rules on Criminal Procedure
and the principle of conspiracy. 12

The position of the Solicitor General is well-taken. As will be shown hereunder, both
accused-appellants acted in conspiracy, especially in their act of offering the girls
alcoholic drinks at the Songs Jazz Bar and in administering drugs in their cola drinks.
Under the principle of conspiracy, the act of one is the act of all. Consequently, Bryan
should also be held criminally liable for the acts of lasciviousness committed by Giovan
on Gina, made possible by his convenient absence in the room. Corollarily, Giovan
should be held equally guilty for the rape committed by Bryan.

Accused-appellants dispute the factual findings of rape made by the trial court, arguing
that: (1) that there was no carnal knowledge; (2) complainant was not deprived of
reason or otherwise unconscious; and (3) there was no force or intimidation.

In rape cases, courts are guided by the following principles: (1) to accuse a man of
rape is easy, but to disprove it is difficult though the accused may be innocent; (2)
considering that in the nature of things, only two persons are usually involved in the
crime of rape, the testimony of the complainant should be scrutinized with great
caution; and (3) the evidence for the prosecution must stand or fall on its own merit
and not be allowed to draw strength from the weakness of the evidence for the
defense. 13

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." 14 He claims that Dr. Torres’ and Dr.
Solis’ findings as well as complainant’s journal confirmed his testimony. Dr. Torres, in
particular, testified that complainant’s cervix merely showed reddening and irritation
indicating positive erythema at the lateral aspect of the vaginal wall. Said erythema
could have been caused by coitus, infection, scratching, or the use of a tampon. She
added that erythema could not be caused solely by sex. The presence of erythema,
however, cannot give a definitive conclusion as to its cause. She also found
complainant’s hymen to be intact and that there was no laceration, bleeding or
spermatozoa.

Dr. Solis, on the other hand, submits that 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. He
added that coitus is a blind act and would have caused irritation to the labia majora,
labia minora and hymen in addition to the vaginal wall, suggesting that erythema on
the vaginal wall was more consistent with scratching or the insertion of a foreign object
such as a tampon.

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. In fact, Dr. Torres
could not give a definitive conclusion that the reddening of the vaginal walls was not
caused by sexual intercourse. Even if we were to follow Dr. Solis’ line of reasoning, he
was not likewise categorical in stating that the reddening of the vaginal walls was not
caused by penetration by a penis. Rather, he stated that such reddening was "more
consistent" with scratching or the use of a tampon. 15

Further, lack of lacerated wounds does not negate sexual intercourse. A freshly broken
hymen is not an essential element of rape. Even the fact that the hymen of the victim
was still intact does not negate rape. As explained by Dr. Maximo Reyes, medico-legal
officer of the NBI, there are hymens that may admit without necessarily producing
laceration and there are hymens that may admit injuries that will produce such
laceration. 16

Even 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. The Court rejects the argument that the absence of sperm
in the vaginal area is a good defense in a rape case. 17

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. To repeat, the rupture of the hymen
or laceration of any part of the woman’s genitalia is not indispensable to a conviction
for rape. 18

Accused-appellant Dy also insists that complainant could not have been drugged,
relying on the opinion of his expert witnesses, namely, Dr. San Pedro and Dr. Solis. The
reasoning that complainant could not have been drugged as there was no drug test
taken is at least speculative and at most non sequitur. The trial court found that: chanrob1es virtual 1aw library

The proven reaction of Gina and Helen to the cola drinks given them by the accused
unmistakably indicates that they were indeed drugged. Dr. Francisco Hernandez, the
prosecution expert witness, opined that the sedative-hypnotic drug known as ativan or
lorazepam could probably be the one used. As explained by him, ativan is a dose-
related drug. A dosage of from 0.5 milligram to 4 milligrams could produce in a person
of average built or with a weight of 130 pounds anxiolytic effect, visual hallucination,
amnesia, confusion, disorientation, gait unsteadiness and sedation. At a 4-milligram
dosage, the imbiber would experience sedation and excessive sleepiness (See Exhibit
"G"). The onset of the action of the drug is within 15 to 45 minutes from the time it is
ingested; it peaks after 2 hours; and the action will last for 6 to 8 hours.

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, she spat back into her cup the cola in her
mouth and dumped out the rest of her drink.

Accused-appellant Dy can not take comfort in the fact that Gina failed to undergo a
drug test. In People v. Villanos, 19 the issue of whether the laced softdrink should have
been presented in evidence to prove that complainant felt dizzy and unconscious after
drinking the same was resolve thus: chanrob1es virtual 1aw library

True, there was no test conducted to determine the presence of any sedative or drug in
the drinks given to the victims which caused them to lose momentary control of their
faculties. But this is of little consequence as the same is not an indispensable element
in a prosecution for rape. Under the circumstances, it suffices that the victim was found
to have been unconscious at the time the offender had carnal knowledge of her.

Accused-appellant Dy’s submission that the ativan is an anxiety-reducing drug and not
a sedative which would not normally produce sleep unless taken in massive quantities is
belied by the undisputed fact that 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. The trial court correctly appreciated the clinical
and academic assessment of the potency and effect of ativan which, according to Dr.
Hernandez, is a benzodiazepine or a sedative-hypnotic drug. More specifically, the trial
court found that: chanrob1es virtual 1aw library

Gina experienced patchy amnesia, i.e., she could remember some of the events
happening to her and in front of her but forget the others, like her inability to recall that
she went back to their room and even bathed. She also had disorientation and
confusion because she did not know why she went to the boys’ room and why she was
naked. 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.

Quite significantly, Dr. San Pedro, one of the defense expert witnesses, stated that
ativan could also cause Gina’s feeling that she was falling in and out of consciousness
during the incident in question. Significantly, too, Dr. San Pedro further testified that
Gina’s behavior could be consistent with her taking alcoholic drinks and ativan on the
same occasion. Dr. Solis, the other defense expert witness, also gave the view that
imbibing alcohol together with ativan would produce potentiation or increase the
pharmacologic effect of the drug. 20
Accused-appellant Dy asserts that: (a) the combination of drugs and alcohol normally
produces a potentiating effect in that the subject can either fall into a coma or do the
opposite which is to act aggressively and with extreme hostility, and (b) the effects
described by complainant and Helen Tennican are more consistent with alcohol use
rather than the effect of drugs. These assertions are not in accord with the trial court’s
findings of fact, and when combined with the adjectives "normally" and "more
consistent," are not definitive.

Even so, the trial court did not err in its assessment of the credibility of Dr. Hernandez’s
testimony. The fact that Dr. Hernandez has not been accredited as an expert by the
Dangerous Drugs Board does not necessarily mean that he is not an expert on the
effects of drugs, as accused-appellant Dy would like this Court to believe. Accreditation
by the Board is not an essential element of expertise. More properly, expertise pertains
to knowledge and experience as well as relevant exposure to a particular field of
discipline. It appears that Dr. Hernandez has met these latter requisites.

Since complainant was drugged, she was effectively deprived of reason if not effectively
rendered unconscious.

Under Article 335 of the Revised Penal Code, as amended by RA No. 7659, rape is
committed by having carnal knowledge of a woman who is unconscious. In such a case,
the fact of sexual assault and the identity of the assailant can be established from the
events preceding or following the victim’s loss of consciousness. 21 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. In People v. Lintag, 22 this Court held that: chanrob1es virtual 1aw library

[I]f the ability to resist is taken away by administering drugs, even though the woman
may be conscious, sexual intercourse with her is rape. (Citation omitted) If the
woman’s will is affected by the anesthetic so that the connection is had without her
consent, though she may be more or less conscious, the act will be rape. (Citation
omitted)

In this regard, the trial court observed: chanrob1es virtual 1aw library

Gina has positively and steadfastly and unrelentingly claimed that after the effects of
the drug had taken on her and she lay down on the beds put together in the boy’s
room, Giovan lay alongside her and forcibly kissed her with his tongue inside her
mouth, kissed her breasts and inserted his index and middle fingers into her vagina
followed by Bryan having sexual intercourse with her and just to prevent Bryan from
penetrating her further, she did oral sex on him. 23

Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. The agreement may be deduced from
the manner in which the offense was committed. It must be shown that all participants
performed specific acts with such closeness and coordination as to indicate a common
purpose or design to commit the felony. 24
Accused-appellants joint participation in the crime of rape is clear from the trial court’s
findings as follows: chanrob1es virtual 1aw library

(a) Bryan and Giovan were both at the Angeles Flying Club when Bryan spotted Gina
and Helen;

(b) The two boys and their driver sat at a table next to the girls’ and immediately Bryan
and later on Giovan struck up a conversation with the girls, initially with Helen whom
they invited to their table which she declined, and then with Gina after the latter came
out of the washroom who accepted the boys’ invitation to their table and Helen then
followed suit;

(c) 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           x          x

(e) At the Songs Jazz Bar, Bryan and Giovan kept on offering and giving Gina and Helen
alcoholic drinks;

(f) As they left, Giovan suggested that he was thirsty and wanted cola drink;

(g) Notably, Helen declined any further cola drink since she had already drunk enough
water at the Songs;

(h) But 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;

(i) 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;

(j) 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.

Accused-appellant Bernardino’s contention that he could not have been a co-conspirator

in the crime of rape because Bryan Dy lacked the requisite dolo or criminal intent to
commit said intentional felony is unmeritorious. 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 accused-
appellants on the former. By doing so, Accused-appellants ensured that complainant
would be in no position to resist or to effectively say "no." The fact of drugging
complainant betrays both accused-appellants’ intent to sexually assault complainant or
engage in sexual intercourse with her.
In addition, Accused-appellant Dy submits that he would not have acted the way he did
had he committed the crime of rape. His argument is non sequitur. While an accused-
appellant’s post-incident behavior is never proof of guilt, neither is it of innocence.

By the same token, Accused-appellant submits that complainant’s acts and statements,

which are allegedly part of the res gestae, indicate that she had not been raped or
molested. This contention is, likewise, unmeritorious. The behavior and reaction of
every person cannot be predicted with accuracy. It is an accepted maxim that "different
people react differently to a given situation or type of situation and there is no standard
form of behavioral response when one is confronted with a strange or startling
experience. Not every rape victim can be expected to act conformably to the usual
expectations of every one. Some may shout; some may faint; and some may be
shocked into insensibility, while others may openly welcome the intrusion." 25
Behavioral psychology teaches us that people react to similar situations dissimilarly.
There is no standard form of behavior when one is confronted by a shocking incident.
The workings of the human mind when placed under emotional stress are
unpredictable. This Court indeed has not laid down any rule on how a rape victim
should behave immediately after she has been abused. This experience is relative and
may be dealt with in any way by the victim depending on the circumstances, but her
credibility should not be tainted by any modicum of doubt. 26

Accused-appellant Dy also avers that the credibility of complainant and her other
witnesses was impeached. In effect, Accused-appellants question the trial court’s
assessment of complainant’s credibility.

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. Be that as it may, 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. 27

Needless to say, this is a matter best assigned to the trial court which had the first-
hand opportunity to hear the testimonies of the witnesses and observe their demeanor,
conduct, and attitude during cross-examination. Such matters cannot be gathered from
a mere reading of the transcripts of stenographic notes. Hence, the trial court’s findings
carry great weight and substance. 28

In any case, well-settled is the rule that the 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. Only the trial judge can observe the furtive glance, blush of conscious shame,
hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of
an oath — all of which are useful aids for an accurate determination of a witness’
honesty and sincerity. The trial court’s findings are accorded finality, unless there
appears in the record some fact or circumstance of weight which the lower court may
have overlooked, misunderstood or misappreciated and which, if properly considered,
would alter the results of the case. 29 Unless certain facts of substance and value were
overlooked which, if considered, might affect the result of the case, its assessment
must be respected for it had the opportunity to observe the conduct and demeanor of
the witnesses while testifying and detect if they are lying. 30

This Court does not agree that the trial court overlooked or misappreciated any fact of
substance or value. In assessing the credibility of complainant, the trial court
commented thus: chanrob1es virtual 1aw library

The Court had observed her demeanor when she was testifying and she was direct,
spontaneous and straightforward, even crying in narrating the sensitive details of her
horrible experience; she had also demonstrated much care and concern about her
obligation to tell the truth and nothing but the truth under the oath which she had
taken before sitting on the witness chair. 31

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. 32

Besides, 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. It is settled
jurisprudence that when a woman says that she has been raped, she says in effect all
that is necessary to show that rape was indeed committed. 33 A woman would think
twice before she concocts a story of rape unless she is motivated by a patent desire to
seek justice for the wrong committed against her. 34

No decent woman in her right mind would tell a tale that could sully her reputation and
bring undue embarrassment and shame to herself and expose her family to all sorts of
public aspersions if it is not the truth. 35 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. 36 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. 37

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 becomes inconsequential in a case where there are affirmative,
nay, categorical declarations towards the accused-appellant’s accountability for the
felony. 38

It is doctrinally settled that the lone testimony of a rape victim, by itself, is sufficient to
convict if credible. Equally settled is the principle that when a woman declares that she
has been raped, she says in effect all that is necessary to mean that she has been
raped, and where her testimony passes the test of credibility, the accused can be
convicted on the basis thereof. This is because from the nature of the crime, the only
evidence that can be offered to establish the guilt of the accused is the complainant’s
testimony. 39

Accused-appellant Bernardino assails the trial court’s failure to credit him with the
mitigating circumstance of minority. There is no merit to this contention. Accused-
appellant Bernardino was already nineteen when the crime was committed. Moreover,
in the case of People v. Abad, 40 which accused-appellant Bernardino cites, the
circumstances and immaturity of accused in said case "did not allow him the freedom of
initiative and action which should be expected of a person who is aware of the full
consequences and responsibility for his acts." Accused-appellant Bernardino was not
under similar circumstances and neither was there any clinical basis to show he was
immature.

Under the second paragraph of Article 335 of the Revised Penal Code, rape is punished
by reclusion perpetua. Although Section 17 of R.A. No. 7659 fixed the duration of
reclusion perpetua from 20 years and 1 day to 40 years, the penalty has remained
indivisible.

At the time of the commission of the crime, Accused-appellant Dy was 17 years old,

hence a minor. Under Article 68 of the Revised Penal Code, when the offender is a
minor under 18 years, the penalty next lower to that prescribed by law shall be
imposed, but always in the proper period.

Minority being a privileged mitigating circumstance, the proper imposable penalty in

this case for accused-appellant Dy is reclusion temporal, which ranges from 12 years
and 1 day to 20 years. Appreciating the ordinary generic mitigating circumstance of
voluntary surrender in favor of Dy, the imposable penalty should be within minimum
period of reclusion temporal, i.e., 12 years and 1 day to 14 years and 8 months.
Applying the Indeterminate Sentence Law, the minimum term of the penalty should be
within the range of prision mayor in any of its periods, i.e., from 6 years and 1 day to
12 years.

Considering the foregoing, Accused-appellant Dy is hereby sentenced to suffer the

penalty of 8 years of prision mayor, as minimum up to 14 years and 8 months of
reclusion temporal, as maximum.

As regards accused-appellant Bernardino, he is not entitled to the privileged mitigating

circumstance of minority considering that at the time of the commission of the crime,
he was already nineteen years old. 41 Hence, as to him, the proper imposable penalty
is reclusion perpetua, an indivisible penalty. Under Article 63, first paragraph, of the
Revised Penal Code, this penalty shall be imposed regardless of the attendance of the
mitigating circumstance of voluntary surrender.

The trial court erred in sentencing accused-appellant Bernardino to an indeterminate

penalty. Since the penalty of reclusion perpetua is imposed on him, Accused-appellant
Bernardino can not enjoy the benefit of the Indeterminate Sentence Law. 42

Accused-appellant Bernardino’s act of kissing Gina’s breasts and inserting his finger into
her vagina constituted acts of lasciviousness. 43 The penalty for this felony, under
Article 336 of the Revised Penal Code, is prision correccional. The penalty to be
imposed on accused-appellant Dy, after appreciating the privileged mitigating
circumstance of minority and the generic mitigating circumstance of voluntary
surrender, is arresto mayor in its minimum period. Inasmuch as the Indeterminate
Sentence Law is not applicable, 44 the trial court correctly imposed on him the straight
penalty of two months of arresto mayor.
On the other hand, the penalty to be imposed on accused-appellant Bernardino,
considering the generic mitigating circumstance of voluntary surrender, is prision
correccional in its minimum period. The trial court, therefore, correctly imposed on him
the indeterminate penalty of two months of arresto mayor, as minimum, to two years
and four months of prision correccional as maximum.

Finally, in the matter of the damages awarded by the trial court, this Court reduces the
award of moral damages from P500,000.00 to P50,000.00 in line with prevailing
jurisprudence. Moral damages are not awarded to punish the accused but to
compensate for the mental anguish, serious anxiety, and moral shock suffered by the
victim or his family as the proximate result of the wrongful act. The award is not meant
to enrich the victim at the expense of the accused. 45

Likewise, the award of P12,195.00 or the equivalent of US$450.00 as actual damages is

deleted for lack of factual basis. To seek recovery of actual damages, it is necessary to
prove the actual amount of loss with a reasonable degree of certainty, premised upon
competent proof and on the best evidence obtainable by the injured party. 46

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. 1 2601-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 prision correccional, as maximum, is AFFIRMED.

Accused-appellants Dy and Bernardino are further ORDERED, jointly and severally, to

pay complainant, Gina Marie Mobley, the amounts of P50,000.00 as civil indemnity,
P50,000.00 as moral damages and P100,000.00 as attorney’s fees, and to pay the
costs of the suit. The award of P12,195.00 or US$450.00 as actual damages is
DELETED.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.