People of the Philippines vs. Guillermo Lomaque

The qualifying circumstance of relationship in rape must be proven by competent evidence — the marriage contract is the best evidence of the fact of marriage — and cannot be established by mere testimony or by the accused's own admission; absent such proof, the accused may only be convicted of simple rape. The Court further held that a variance between the mode of commission of rape alleged in the Information and that proven during trial is binding upon the accused if he fails to object to the evidence showing a different manner of commission.

The accused-appellant Guillermo Lomaque was the stepfather of the victim "AAA," who was born on September 15, 1985 to her mother "BBB." Lomaque began living with "BBB" in 1993, bringing with him his own children from a previous marriage. The charges arose from a series of sexual abuse incidents allegedly committed by Lomaque against "AAA" over a period spanning from 1993 to 1999, when "AAA" was a minor. The case was prosecuted under Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353, in relation to Section 5 of Republic Act No. 7610 (the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act).

"AAA" was born on September 15, 1985 to "BBB" by her first husband. When "AAA" was about eight years old, Guillermo Lomaque, who had begun living with "BBB" in 1993 and whom "AAA" treated as a father, started molesting her. The first act of molestation occurred on May 8, 1993, when Lomaque asked "AAA" to remove his growing mustache and pluck white hair from his head; while lying on "AAA's" lap, he smelled and sniffed her private parts and inserted his finger inside her vagina. At that time, "AAA" did not understand what had been done to her, but to avoid further incidents she began sleeping more often at the house of her aunt "DDD." When "BBB" asked why she frequently slept at her aunt's house, "AAA" told her mother that Lomaque had touched her private parts. "BBB" confronted Lomaque and they quarreled. For a time, Lomaque stopped molesting "AAA," so she returned to their house to sleep there again.

In the evening of September 16, 1996, while almost everyone was asleep, "AAA" was awakened by Lomaque, who embraced her, slowly removed her shorts, and immediately inserted his penis into her vagina; she was then only eleven years old. On September 20, 1996, when everyone in the room was already asleep, Lomaque again embraced "AAA," slowly removed her shorts, and, against her will, inserted his penis into her vagina while her back was against him. On January 2, 1998, while "BBB" was in the hospital, Lomaque again sexually abused "AAA," removing all her clothes and inserting his penis into her vagina; "AAA" could not shout because Lomaque, with a gun, threatened to kill her and her mother if she reported the incident. On April 17, 1998, while everyone was watching television, Lomaque positioned himself behind "AAA," pinned her thigh with his legs, slowly removed her shorts, and inserted his penis into her vagina; "AAA" could do nothing as she recalled Lomaque's threat to kill her and her mother. On April 27, 1998, while they were watching television, Lomaque touched and held "AAA's" vagina; she could not do anything because she was scared.

In the evening of September 13, 1998, Lomaque again sexually abused "AAA" while everyone was asleep, laying beside her, embracing her, lowering her shorts, and inserting his penis into her vagina. On October 24, 1998, while "AAA" was embracing her mother "BBB" to apologize for something, Lomaque positioned himself behind "AAA," initially held "BBB's" breasts, then lowered his hand toward "AAA's" waist, slowly removed her shorts, and inserted his penis into her vagina. During the last week of December 1998, Lomaque, clad only in a towel, summoned "AAA" upstairs, asked her to hold his penis, had it inserted into her mouth, and rubbed his penis against her lips. On February 11, 1999, while "AAA" was about to sleep, Lomaque went on top of her and inserted his penis into her vagina while kissing her.

"AAA's" ordeal eventually resulted in her pregnancy. During the last week of November 1999, Lomaque asked "BBB" to bring "AAA" to a doctor for a medical check-up, and "BBB" discovered that "AAA" was pregnant. When "BBB" inquired who the father was, "AAA" told her it was Lomaque, which Lomaque admitted; however, when "BBB" became hysterical, Lomaque retracted and concocted a story that somebody else had caused the pregnancy. After giving birth, "AAA" returned to their house, where she saw Lomaque kissing her younger sister "CCC." Afraid that "CCC" might suffer the same fate, "AAA" decided to file a complaint with the help of Bantay-Bata 163. On June 19, 2000, "AAA," accompanied by her aunt "DDD," went to Bantay-Bata 163, where she disclosed to social worker Liwayway Ilao what Lomaque had done to her; Ilao conducted further interviews and counseling, submitted "AAA" for medico-legal examination, and assisted her in filing a complaint before the Women and Children Concern Office at Camp Crame. Dr. Jaime Rodrigo Leal, the medico-legal officer who examined "AAA," testified that she had an attenuated hymen and deep healed lacerations indicating chronic penetration; while consistent with vaginal delivery, he explained that his findings validated that "AAA" had indeed been sexually abused several times, and that she gave birth on April 1, 2000.

The defense, for its part, relied on denial and alibi. Lomaque testified that he started living with "BBB" in 1993, bringing his own children from his first marriage, and denied sexually abusing "AAA." He claimed he could not have committed the crimes because, as a bio-medical technician, he was deployed all over the country to repair hospital equipment, and he offered several plane tickets in support — dated June 2, 1992; February 21, 1994; March 5, 1994; August 14, 1994; August 25, 1994; November 9, 1994; November 27 (year illegible); and January 7, 1997. He likewise testified that his parents-in-law and sister-in-law were living with them. The RTC found "AAA" to be a credible witness and rejected the defense of denial and alibi, and the CA affirmed.

• Credibility of "AAA": Appellant faulted the trial court for giving full weight and credence to "AAA's" testimony and contended that his guilt was not proven beyond reasonable doubt; he assailed "AAA's" credibility as the core of his appeal.
• Delay in Reporting: Appellant argued that "AAA's" silence and failure to divulge her alleged horrifying ordeal to immediate relatives, despite its having occurred several times, ran counter to the natural reaction of an outraged maiden despoiled of her honor.
• Failure to Resist: Appellant contended that "AAA's" failure to struggle or at least offer resistance during the rape incidents tarnished her credibility.
• Resumption of Normal Life: Appellant argued that the fact that "AAA" resumed her normal life after the commission of the alleged rapes should be taken against her.
• Improbability of Commission: Appellant contended that it challenged human credulity that he was able to sexually abuse "AAA" despite the many people around them.
• Denial and Alibi: Appellant denied his complicity in the crimes charged and alleged alibi, offering plane tickets to show that he was deployed in other places during the incidents.

• Affirmance of Conviction: The Office of the Solicitor General, for the plaintiff-appellee People of the Philippines, prayed for the affirmance of the assailed Judgment, contending that "AAA's" testimony is clear, candid, and straightforward.
• Culpability Established: Respondent contended that appellant's culpability was established beyond reasonable doubt.

• Sufficiency of Evidence / Credibility: Whether the prosecution has proven beyond reasonable doubt the guilt of appellant for the crimes of rape and acts of lasciviousness, the resolution of which rests upon the credibility of the testimony of the offended party.
• Qualifying Circumstances of Minority and Relationship: Whether the special qualifying circumstances of minority of the victim and her relationship to the appellant were properly alleged in the Information and duly proved during trial to justify a conviction for qualified rape.
• Variance in Mode of Commission: Whether the variance between the mode of commission of rape alleged in the Information and that proven during trial in Criminal Case No. Q-00-96392 affects appellant's conviction for rape by sexual assault.

• Sufficiency of Evidence / Credibility: Yes. The prosecution proved beyond reasonable doubt appellant's guilt; the RTC and CA's finding of guilt was sustained, as "AAA's" testimony bore the earmarks of truth and sincerity and the defenses of denial and alibi failed.
• Qualifying Circumstances of Minority and Relationship: No, as to relationship. While minority was proved, the fact of relationship (stepfather-stepdaughter) was not, because the prosecution failed to present the marriage contract; appellant should therefore be convicted only of simple rape in the seven counts.
• Variance in Mode of Commission: No, the variance does not affect the conviction. A variance in the mode of commission of the offense is binding upon the accused if he fails to object to evidence showing that the crime was committed in a different manner than what was alleged; appellant's conviction for rape by sexual assault stands.

• Sufficiency of Evidence / Credibility: Where the issue is the extent of credence to be properly given to the declaration of witnesses, the findings of the trial court are accorded great weight and respect, and can only be discarded or disturbed when it appears in the records that the trial court overlooked, ignored, or disregarded some fact or circumstance of weight or significance which, if considered, would have altered the result. No plausible ground existed to disturb the findings respecting "AAA's" credibility, as her testimony bore the earmarks of truth and sincerity, containing details only a real victim could remember and reveal, and she was positive and firm in identifying appellant. On the delay in reporting, the filing of complaints of rape months or even years after their commission may or may not dent credibility depending on the circumstances; delay does not diminish credibility when attributable to the pattern of fear instilled by threats of bodily harm, especially by one exercising moral ascendancy over the victim. Appellant had threatened to kill "AAA" and her mother, and at the time "AAA" was only eleven years old and living under the same roof with appellant, whom she treated as a father; the threat, coupled with his moral ascendancy, was enough to cow and intimidate her. On the failure to struggle, physical resistance need not be established when intimidation is brought to bear on the victim and the latter submits out of fear; rape is subjective and not everyone responds the same way to an attack, and a young victim is easily overcome by fear. On the resumption of normal life, no standard form of behavior can be anticipated of a rape victim following her defilement, particularly a child who could not be expected to fully comprehend the ways of an adult. On the improbability of commission despite the presence of others, rape can be committed even when the rapist and victim are not alone, and rape is not impossible even if committed in the same room while the rapist's spouse is sleeping or in a small room where other family members also sleep. On denial, it could not prevail over the victim's direct, positive, and categorical assertion. On alibi, appellant failed to substantiate it with clear and convincing evidence; the plane tickets were all issued in 1994 while the incidents subject of the Informations transpired from 1996 to 1999, rendering the alibi uncorroborated, unsubstantiated, self-serving, and deserving of no weight in law.
• Qualifying Circumstances of Minority and Relationship: Under Article 266-B of the Revised Penal Code, rape is qualified and the penalty of death is imposed when the victim is below eighteen years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. To justify the imposition of the death penalty, the special qualifying circumstances of minority of the victim and her relationship to the appellant must be properly alleged in the Information and duly proved during trial, and these two circumstances must concur. While the Informations clearly averred the special qualifying circumstances of minority and filiation (stepdaughter), and the prosecution sufficiently proved "AAA's" minority through her testimony and her Certificate of Live Birth showing she was born on September 15, 1985, it failed to prove the fact of relationship between her and appellant. The alleged relationship was not even made the subject of stipulation of facts during pre-trial. A stepdaughter is a daughter of one's spouse by previous marriage, while a stepfather is the husband of one's mother by virtue of a marriage subsequent to that of which the person spoken is the offspring. The allegation that "AAA" is the stepdaughter of appellant requires competent proof and should not be easily accepted as factually true; the bare testimony of appellant that he was married to "BBB" is not enough, nor does "AAA's" reference to appellant as her stepfather during her testimony suffice. The relationship of the accused to the victim cannot be established by mere testimony or even by the accused's very own admission of such relationship. Save for appellant's testimony that he was married to "BBB," the record was bereft of any evidence to show that appellant and "BBB" were indeed legally married; the prosecution could have presented the marriage contract, the best evidence to prove the fact of marriage, but it did not. Following Abello, "AAA" cannot be considered as appellant's stepdaughter and, conversely, appellant as "AAA's" stepfather. Appellant should therefore be convicted only of simple rape, with the proper penalty of reclusion perpetua under Article 266-B of the RPC — the same penalty imposable even if he were guilty of qualified rape pursuant to RA 9346.
• Variance in Mode of Commission: In Criminal Case No. Q-00-96392, the courts below overlooked a glaring variance between what was alleged in the Information and what was proven during trial respecting the mode of committing the offense. The Information stated that the crime was committed by appellant's insertion of his penis inside "AAA's" vagina, but "AAA" testified that appellant merely put his penis in her mouth. Nevertheless, appellant failed to register any objection that the Information alleged a different mode of the commission of the crime of rape. As ruled in Abello and Corpuz, a variance in the mode of commission of the offense is binding upon the accused if he fails to object to evidence showing that the crime was committed in a different manner than what was alleged. Thus, appellant's conviction for rape by sexual assault was sustained, the variance notwithstanding.

• Credibility of Witnesses — Trial Court's Findings Accorded Great Weight — Where the issue is the extent of credence to be properly given to the declaration of witnesses, the findings of the trial court are accorded great weight and respect, and can only be discarded or disturbed when it appears in the records that the trial court overlooked, ignored, or disregarded some fact or circumstance of weight or significance which, if considered, would have altered the result. The Court found no plausible ground to disturb the findings respecting "AAA's" credibility.
• Delay in Reporting Rape — The filing of complaints of rape months, even years, after their commission may or may not dent the credibility of a witness and of testimony, depending on the circumstances attendant thereto. It does not diminish the complainant's credibility or undermine the charges of rape when the delay can be attributed to the pattern of fear instilled by threats of bodily harm, especially by one who exercises moral ascendancy over the victim. The Court applied this to excuse "AAA's" delay, given appellant's threats and moral ascendancy.
• Failure to Resist / Struggle — Physical resistance need not be established when intimidation is brought to bear on the victim and the latter submits herself out of fear; the failure to shout or offer tenuous resistance does not make voluntary the victim's submission to the criminal acts of the accused. Rape is subjective, and a young victim is easily overcome by fear.
• No Standard Behavior for Rape Victims — No standard form of behavior can be anticipated of a rape victim following her defilement, particularly a child who could not be expected to fully comprehend the ways of an adult; people react differently to emotional stress. The Court held that "AAA's" resumption of normal life could not be taken against her.
• Rape Committed Despite Presence of Others — Rape can be committed even when the rapist and the victim are not alone; "lust is no respecter of time and place," and rape is not impossible even if committed in the same room while the rapist's spouse is sleeping or in a small room where other family members also sleep.
• Denial and Alibi — Denial could not prevail over the victim's direct, positive, and categorical assertion. Alibi must be substantiated by clear and convincing evidence; otherwise it is self-serving and deserves no weight in law. The Court rejected appellant's defenses.
• Qualifying Circumstances Must Be Alleged and Proved — To justify the imposition of the death penalty in qualified rape, the special qualifying circumstances of minority of the victim and her relationship to the appellant must be properly alleged in the Information and duly proved during trial, and these two circumstances must concur. The Court found the relationship unproven.
• Best Evidence of Marriage — The marriage contract is the best evidence to prove the fact of marriage; relationship cannot be established by mere testimony or even by the accused's own admission. This stricter requirement is proper because relationship is an aggravating circumstance that increases the imposable penalty and hence must be proven by competent evidence. The Court applied this to reduce the rapes to simple rape.
• Variance in Mode of Commission of the Offense — A variance in the mode of commission of the offense is binding upon the accused if he fails to object to evidence showing that the crime was committed in a different manner than what was alleged. The Court applied this to sustain the rape by sexual assault conviction despite the variance.
• Elements of Acts of Lasciviousness under Article 336, RPC — The elements are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done under any of the following circumstances: (a) by using force or intimidation; (b) when the offended party is deprived of reason or otherwise unconscious; or (c) when the offended party is under twelve years of age; and (3) that the offended party is another person of either sex. To obtain conviction, the prosecution must also establish the elements of sexual abuse under Section 5, Article III of RA 7610: (1) the accused commits the act of 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, whether male or female, is below eighteen years of age.
• Definition of Lascivious Conduct — Under Section 2(H) of the Implementing Rules and Regulations of RA 7610, lascivious conduct is a crime committed through the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks with the intention to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, among others.
• Appeal Throws the Whole Case Open for Review — In a criminal case, an appeal throws the whole case open for review, allowing the Court to determine the sufficiency of evidence respecting the presence of qualifying circumstances even if not raised by the parties.

• "The filing of complaints of rape months, even years, after their commission may or may not dent the credibility of witness and of testimony, depending on the circumstances attendant thereto." — This passage states the rule on delayed reporting of rape, which the Court applied to excuse "AAA's" delay in light of the threats and moral ascendancy exerted by appellant.
• "It does not diminish the complainant's credibility or undermine the charges of rape when the delay can be attributed to the pattern of fear instilled by the threats of bodily harm, specially by one who exercises moral ascendancy over the victim." — This passage articulates the rationale for treating delay in reporting as non-fatal to credibility, a formulation frequently cited in rape jurisprudence.
• "Lust is no respecter of time and place." — This oft-quoted aphorism supports the rule that rape can be committed even when the rapist and victim are not alone, which the Court used to reject appellant's contention that the presence of other people made the abuse improbable.
• "The relationship of the accused to the victim cannot be established by mere testimony or even by the accused's very own admission of such relationship." — This passage states the evidentiary standard for proving the qualifying circumstance of relationship, which the Court applied to reduce the rapes from qualified to simple rape.
• "This modifying circumstance, however, was not duly proven in the present case due to the prosecution's failure to present the marriage contract between Abello and AAA's mother. If the fact of marriage came out in the evidence at all, it was via an admission by Abello of his marriage to AAA's mother. This admission, however, is inconclusive evidence to prove the marriage to AAA's mother, as the marriage contract still remains the best evidence to prove the fact of marriage." — Quoted from People vs. Abello, this passage supplies the best-evidence rationale for requiring the marriage contract to prove the qualifying circumstance of relationship.

• People vs. Eling, G.R. No. 178546, April 30, 2008, 553 SCRA 724 — Cited for the rule that the trial court's findings on witness credibility are accorded great weight and respect and can only be disturbed when the trial court overlooked, ignored, or disregarded facts of weight or significance.
• People vs. Ricamora, 539 Phil. 565 (2006) — Cited for the rule that the filing of rape complaints months or years after commission may or may not dent credibility depending on attendant circumstances.
• People vs. Degala, 411 Phil. 650 (2001) — Cited for the rule that delay does not diminish credibility when attributable to the pattern of fear instilled by threats of bodily harm by one exercising moral ascendancy.
• People vs. Domingo, G.R. No. 177136, June 30, 2008, 556 SCRA 788 — Cited for the rule that the effect of fear and intimidation instilled in the victim's mind cannot be measured against any hard-and-fast rule and is viewed in the context of the victim's perception and judgment.
• People vs. Tejero, G.R. No. 187744, June 20, 2012, 674 SCRA 244 — Cited for the rule that the failure of the victim to immediately report the rape is not necessarily an indication of a fabricated charge.
• People vs. Achas, G.R. No. 185712, August 4, 2009, 595 SCRA 341 — Cited for the rule that physical resistance need not be established when intimidation is brought to bear on the victim.
• People vs. Crespo, G.R. No. 180500, September 11, 2008, 564 SCRA 613 — Cited for the rule that no standard form of behavior can be anticipated of a rape victim following her defilement.
• People vs. Montesa, G.R. No. 181899, November 27, 2008, 572 SCRA 317 — Cited for the aphorism "Lust is no respecter of time and place."
• People vs. Mariano, G.R. No. 168693, June 19, 2009, 590 SCRA 74 — Cited for the rule that rape is not impossible even if committed in the same room while the rapist's spouse is sleeping or in a small room where other family members also sleep.
• People vs. Espina, G.R. No. 183564, June 29, 2011, 653 SCRA 36 — Cited for the rule that denial could not prevail over the victim's direct, positive, and categorical assertion.
• People vs. Tambis, G.R. No. 175589, July 28, 2008, 560 SCRA 343 — Cited for the rule that in a criminal case an appeal throws the whole case open for review.
• People vs. Hermocilla, G.R. No. 175830, July 10, 2007, 527 SCRA 296 — Cited for the definition of a stepdaughter as a daughter of one's spouse by previous marriage and a stepfather as the husband of one's mother by virtue of a marriage subsequent to that of which the person spoken is the offspring; also cited for the rule that when one of the qualifying circumstances of relationship and minority is omitted or lacking, that which is pleaded and proved may be considered as an aggravating circumstance.
• People vs. Agustin, G.R. No. 175325, February 27, 2008, 547 SCRA 136 — Cited for the rule that the relationship of the accused to the victim cannot be established by mere testimony or even by the accused's very own admission of such relationship.
• People vs. Abello, G.R. No. 151952, March 25, 2009, 582 SCRA 378 — Cited for the rule that the marriage contract remains the best evidence to prove the fact of marriage, and that relationship as an aggravating circumstance must be proven by competent evidence; also cited for the rule that a variance in the mode of commission of the offense is binding upon the accused if he fails to object.
• People vs. Corpuz, 517 Phil. 622 (2006) — Cited for the rule that a variance in the mode of commission of the offense is binding upon the accused if he fails to object to evidence showing a different manner of commission.
• People vs. Bayya, 384 Phil. 519 (2000) — Cited for the rule that when one of the qualifying circumstances of relationship and minority is omitted or lacking, that which is pleaded in the Information and proved by the evidence may be considered as an aggravating circumstance.
• People vs. Esperanza, 453 Phil. 54 (2003) — Cited for the same rule on the treatment of a pleaded and proved qualifying circumstance as an aggravating circumstance when the other is lacking.
• People vs. Soria, G.R. No. 179031, November 14, 2012, 658 SCRA 483 — Cited for the same rule on the treatment of a pleaded and proved qualifying circumstance as an aggravating circumstance when the other is lacking.
• People vs. Madsali, G.R. No. 179570, February 4, 2010, 611 SCRA 596 — Cited for the rule that civil indemnification is mandatory upon the finding of rape.

• Article 266-A, Revised Penal Code (as amended by RA 8353) — Defines rape by sexual intercourse (paragraph 1) and rape by sexual assault (paragraph 2); the Informations charged appellant under paragraph 1, and the Court convicted him of simple rape under this article.
• Article 266-B, Revised Penal Code — Provides the penalties for rape; rape under paragraph 1 is punished by reclusion perpetua, and rape is qualified with the penalty of death when the victim is under eighteen years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. The Court applied this to hold that the proper penalty for simple rape is reclusion perpetua.
• Article 336, Revised Penal Code (Acts of Lasciviousness) — Defines and penalizes acts of lasciviousness; the Court enumerated its elements and applied them to sustain appellant's conviction.
• Section 5(b), Article III, Republic Act No. 7610 — Defines child sexual abuse; the Court required the prosecution to establish its elements in addition to those of Article 336 to obtain a conviction for acts of lasciviousness in relation to RA 7610.
• Section 2(H), Implementing Rules and Regulations of RA 7610 — Defines lascivious conduct as a crime committed through intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks with the intention to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
• Republic Act No. 9346 — An Act Prohibiting the Imposition of Death Penalty in the Philippines; the Court noted that the penalty of reclusion perpetua is the same penalty imposable even if appellant were guilty of qualified rape pursuant to RA 9346.
• Indeterminate Sentence Law — Applied by the Court in fixing the indeterminate penalties for rape by sexual assault and acts of lasciviousness, with the minimum taken from the penalty one degree lower than that prescribed by law and the maximum from the maximum period of the prescribed penalty in view of the aggravating circumstance of minority.

• Arturo D. Brion (Acting Chairperson)
• Roberto A. Abad
• Jose Portugal Perez
• Marvic Mario Victor F. Leonen