Olivarez vs. Court of Appeals

An information for violation of Section 5, Article III of Republic Act No. 7610 that omits the victim's age is sufficient where the complaint stating that she is below 18 years of age is mentioned in the information, forms part of the records, was furnished to the accused, and her minority is proved by competent evidence at trial. Coerced or intimidated lascivious conduct with a child below 18, even if committed only once and not for profit, constitutes sexual abuse under Section 5.

Isidro Olivarez employed Cristina Elitiong, a high school student, together with her brothers, in the making of sampaguita garlands at his residence compound in San Pedro, Laguna. Republic Act No. 7610 provides stronger deterrence and special protection against child abuse, exploitation and discrimination, with Section 5, Article III punishing child prostitution and other sexual abuse with reclusion temporal in its medium period to reclusion perpetua.

Cristina Elitiong was a 16-year-old high school student who, with her brothers, had for one year reported on weekends to the residence of 64-year-old Isidro Olivarez to make sampaguita garlands. Her workplace lay within the compound, about three armslength from the main door of the house.

At about 11:30 in the morning of July 20, 1997, Cristina was working with her two brothers Macoy and Dodong and one Liezel when Olivarez, who was near the main door, called her. When she approached, he asked whether she had told her mother that he gave her money; upon her denial, he embraced her and held her breast while the other workers faced the street. He then pulled her to the kitchen, closed the door, and kissed her on the lips. She pushed him away and returned to her station, where Macoy saw her crying as she came out; without speaking, she went to the faucet and washed her face.

She finished the garlands she was working on and waited until afternoon for her wages. Upon arriving home, she first told her mother only that she no longer wished to return to make garlands, saying basta po mama ayaw ko ng magtuhog, and upon being pressed disclosed what had happened. On July 26, accompanied by her mother Aurora Elitiong, she reported the incident at the San Vicente Barangay Hall and gave a statement, and days later gave another statement to the local police.

According to the defense, Cristina and her brothers had slept overnight in Olivarez's house; early that morning he admonished her to join her brothers in the basement after seeing her sleeping on the sofa, then slept until 8:00 A.M. and left at 10:00 A.M. for the Caltex Service Station five minutes away by tricycle to wait for flower shipments from Pampanga. His daughter Analee, who lived in another house in the compound, returned from morning Mass at 10:30 A.M. without seeing him, while laundrywoman Maritess Buen, washing outside the kitchen, saw him earlier but found him gone by 10:00 A.M. when she entered the house. Olivarez testified he stayed at the station for two and a half hours until the goods arrived at 12:15 P.M., passed by the market, and arrived home at 12:30 P.M.; days later Maritess informed him of a barangay complaint, and at a meeting before barangay official Jaime Ramos he refused the mother's demand of P30,000 to settle, preferring to face his accusers in court.

The trial court found Cristina's testimony clear, candid, straightforward, spontaneous and categorical, and rejected Olivarez's uncorroborated alibi and denial, finding no ill-motive for the grave charge.

• Essential Elements Not Alleged: Petitioner argued that the information failed to allege the age of the offended party and that she is an abused or exploited child as defined by law, which are essential elements of violation of Section 5, Article III of Republic Act No. 7610, so he cannot be found guilty thereof and must be acquitted.
• Right to be Informed and Due Process: Petitioner maintained that his constitutional right to be informed of the nature and cause of the accusation was violated, and that an information charging violation of Section 5 but omitting its essential elements did not substantially comply with due process.
• Erroneous Conviction and Penalty: Petitioner argued that the Court of Appeals gravely abused its discretion in not reversing the trial court's conviction and sentence of imprisonment for an offense not alleged in the information.

• Sufficiency of Information and Right to be Informed: Whether the information charging "Violation of R.A. 7610" which omits the victim's age and status as a child exploited in prostitution or subjected to other sexual abuse, and which does not cite the specific section violated, violates the accused's right to be informed and warrants acquittal.
• Elements of Sexual Abuse under Section 5: Whether the acts of touching the breasts and kissing the lips of a 16-year-old by force and intimidation constitute lascivious conduct with a child subjected to other sexual abuse under Section 5, Article III of R.A. 7610.
• Credibility and Proof Beyond Reasonable Doubt: Whether the prosecution proved beyond reasonable doubt through the victim's testimony, as against alibi and denial, that petitioner committed the lascivious acts, warranting conviction and the penalties imposed.

• Sufficiency of Information and Right to be Informed: No. The defect was cured because the sworn complaint stating the victim was 16 years old was mentioned in the information, formed part of the records, and was furnished to petitioner, constituting substantial compliance.
• Elements of Sexual Abuse under Section 5: Yes. All three elements were present: lascivious conduct, performed with a child subjected to other sexual abuse through coercion or influence, who was below 18 years of age.
• Credibility and Proof Beyond Reasonable Doubt: Yes. The victim's clear, candid and straightforward testimony established guilt beyond reasonable doubt and prevailed over uncorroborated alibi and denial, with moral damages and a P15,000.00 fine properly imposed.

• Sufficiency of Information and Right to be Informed: While essential elements must generally be alleged, failure to do so is not an irremediable vice where the complaint or prosecutor's resolution containing the missing averments is attached to or forms part of the records. Reliance was placed on People vs. Rosare, People vs. Villamor, People vs. Galido, People vs. Mendez, and People vs. Torellos, where omissions of age, mental retardation, or force or intimidation were cured by the complaint or preliminary investigation records. Here the information expressly stated it was filed upon the sworn complaint of Cristina B. Elitiong, which alleged she was 16 years old; petitioner received that complaint, responded to it during preliminary investigation, and could not claim surprise. Moreover, the character of the crime is determined not by the caption or cited provision but by the recital of ultimate facts, which described lewd, forcible touching and kissing punishable under Section 5; the failure to cite the specific section was therefore inconsequential.
• Elements of Sexual Abuse under Section 5: The three elements are (1) commission of sexual intercourse or lascivious conduct, (2) performed with a child exploited in prostitution or subjected to other sexual abuse, and (3) the child is below 18 years of age. Lascivious conduct includes intentional touching of the breast with intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire under Section 32, Article XIII of the Implementing Rules and Regulations. The first element was established as petitioner kissed Cristina and touched her breasts with lewd design inferred from the acts and circumstances. The second element was present because a child who indulges in lascivious conduct under coercion or influence of an adult is deemed subjected to other sexual abuse; the law covers not only abuse for profit but also coerced or intimidated conduct, even if occurring only once, since Section 3(b) states abuse may be habitual or not, as confirmed by Senate deliberations and People vs. Larin and Amployo vs. People. The third element was proved by Cristina's testimony that she was 16 and by the Local Registrar's certification showing birth on October 17, 1980.
• Credibility and Proof Beyond Reasonable Doubt: The trial court's assessment of Cristina as categorical, spontaneous and worthy of belief was entitled to deference, absent overlooked material fact or grave abuse of discretion. Positive identification without shown ill-motive outweighed inherently weak alibi and denial. In addition to P15,000.00 moral damages, a P15,000.00 fine was imposed pursuant to Section 31(f), Article XII of R.A. 7610 as administered for rehabilitation of child victims, following Amployo vs. People and People vs. Abadies.

• Elements of sexual abuse under Section 5, Article III of R.A. 7610 — The offense requires (1) the accused commits sexual intercourse or lascivious conduct; (2) the act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child, male or female, is below 18 years of age. Applied here, kissing and breast-touching satisfied the first element, coercion satisfied the second, and proof of age 16 satisfied the third.
• Child deemed exploited or subjected to other sexual abuse — A child who indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration, or (b) under coercion or influence of any adult, syndicate or group, is deemed exploited in prostitution or subjected to other sexual abuse. The ruling emphasized that Section 5 covers not only profit-driven abuse but also lascivious conduct through coercion or intimidation, even on a single occasion.
• Definition of lascivious conduct — Under Section 32, Article XIII of the Implementing Rules and Regulations of R.A. 7610, lascivious conduct means intentional touching, directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or introduction of any object into genitalia, anus or mouth, with intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire, including bestiality, masturbation, and lascivious exhibition. Petitioner's touching of the victim's breasts and kissing fell within this definition.
• Substantial compliance with right to be informed — Failure to allege an essential element in the information is cured where the complaint or prosecutor's resolution containing the missing averment is attached to or forms part of the records and the accused is furnished a copy, so that surprise and inability to prepare a defense cannot be claimed. Here the complaint stating the victim was 16 supplied the omitted age.
• Crime determined by facts alleged, not caption — The character of the crime is determined by the recital of ultimate facts and circumstances in the complaint or information, not by the caption, preamble, or specification of the provision allegedly violated. Thus charging only "Violation of R.A. 7610" without citing Section 5 did not invalidate the information where the body described acts punishable under Section 5.
• Credibility and weak defenses — Findings on witness credibility are generally undisturbed absent overlooked material fact or grave abuse of discretion, and denial and alibi, being inherently weak, cannot prevail over positive and categorical identification without ill-motive. Cristina's straightforward testimony was therefore sustained over petitioner's uncorroborated alibi.

• "A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group." — States the controlling construction of Section 5 that extends liability beyond profit-driven prostitution to coerced lascivious conduct.
• "The character of the crime is not determined by the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they may be conclusions of law, but by the recital of the ultimate facts and circumstances in the complaint or information." — Defines the test for sufficiency of the information and justifies sustaining the charge despite omission of the specific section number.
• "Denial, like alibi, is an inherently weak defense and cannot prevail over the positive and categorical identification provided by eyewitnesses." — Explains rejection of petitioner's defense in light of the victim's positive identification.

• People vs. Larin, 357 Phil. 987 (1998) — Followed as authority that Section 5 covers a child who engages in lascivious conduct through coercion or intimidation, not only for profit.
• Amployo vs. People, G.R. No. 157718, 26 April 2005 — Followed for the elements of sexual abuse under Section 5, inference of lewd design, and imposition of fine in addition to moral damages.
• People vs. Rosare, 332 Phil. 435 (1996) — Followed as basis for substantial compliance where the prosecutor's resolution attached to the information stated the omitted element of mental retardation.
• People vs. Villamor, 357 Phil. 940 (1998) — Followed where omission of the victim's age was cured by the investigating judge's order in the preliminary investigation records stating she was nine years old.
• People vs. Galido, G.R. Nos. 148689-92, 30 March 2004 — Followed where omission of force or intimidation in rape informations was held not fatal because the complaints alleged rape by force and intimidation.
• People vs. Mendez, 390 Phil. 449 (2000) — Followed on the same point that omission of force was cured by the complaint's allegation of rape by means of force.
• People vs. Torellos, G.R. No. 143084, 1 April 2003 — Cited for treating a defective information omitting force and intimidation as cured by failure to assail it and by competent trial evidence.
• People vs. Abadies — Followed as guidepost for imposing a fine under Section 31(f) for lascivious conduct amounting to child abuse under Section 5(b).

• Section 5, Article III, Republic Act No. 7610 — Punishes with reclusion temporal in its medium period to reclusion perpetua those who commit sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; applied to petitioner's forcible kissing and breast-touching of a coerced 16-year-old.
• Section 32, Article XIII, Implementing Rules and Regulations of R.A. 7610 — Defines lascivious conduct to include intentional touching of the breast with abusive or sexual intent; used to qualify petitioner's acts as lascivious conduct.
• Section 31(f), Article XII, Republic Act No. 7610 — Allows imposition of a fine at the court's discretion, administered as cash fund for rehabilitation of child victims; basis for the additional P15,000.00 fine.
• Section 1(b), Rule 115, Revised Rules of Criminal Procedure — Guarantees the accused's right to be informed of the nature and cause of accusation; held satisfied by substantial compliance through the complaint.
• Sections 6, 8 and 9, Rule 110, Revised Rules of Criminal Procedure — Require the complaint or information to state the designation of the offense, the acts constituting it, and qualifying and aggravating circumstances in ordinary concise language; applied to uphold sufficiency despite incomplete designation.

HILARIO G. DAVIDE, JR., Chief Justice, LEONARDO A. QUISUMBING, Associate Justice, ANTONIO T. CARPIO, Associate Justice, ADOLFO S. AZCUNA, Associate Justice

• ANTONIO T. CARPIO — Maintained petitioner should be guilty only of acts of lasciviousness under Article 336 of the Revised Penal Code, punishable by prision correccional, not under Section 5 of R.A. 7610. Reasoned that the information and even the complaint failed to allege the second essential element that the child was already exploited in prostitution or subjected to other sexual abuse distinct from the charged acts, and that no evidence showed such prior subjection since sampaguita-making was decent employment; "other sexual abuse" must mean abuse other than the lascivious acts charged, such as indecent shows or obscene publications.