People vs. Ospig

Simple rape through force, threat or intimidation is established by the victim's credible, straightforward testimony of penile penetration corroborated by medical findings of healed hymenal lacerations compatible with the date of the assault. Neither a prior unsuccessful attempt, a claim of mistaking the victim for another person in the dark, nor minor inconsistencies defeats conviction where the second, consummated act was committed with force and death threats after any mistake had been dispelled.

Roger Ospig was the boyfriend of Elizabeth Salazar, with whom he lived without benefit of marriage beginning January 1998 at her boarding house in Tam-awan, Quezon Hill, Baguio City. Elizabeth was the common-law wife of Alejandro Salazar, then working in Saudi Arabia, and mother of four children including 13-year-old Gazelle Salazar and 9-year-old Gladys. The house had a living room and kitchen and one bedroom divided by a wooden wall with a curtained door, where the children slept on two beds while Ospig slept in the living room and Elizabeth divided her nights between the children's room and the living room.

Beginning January 1998, Roger Ospig, then 23 and single, stayed as lover in the Tam-awan boarding house of Elizabeth Salazar, who told him she was already separated from her husband. He helped with dishes, laundry, cooking, childcare, and the schoolwork of Gazelle and Gladys. At the time Elizabeth worked as a production worker at Bay-Sport Manufacturing Inc. at the Export Processing Zone in Loakan, Baguio City.

On October 18, 1998, Elizabeth was scheduled for night shift from 7:00 p.m. to 7:00 a.m. the next day, October 19, as shown by her daily time record and certificate of employment. According to the prosecution, in the early morning of October 19 while Elizabeth was still at work, Gazelle woke to find Ospig beside her kissing her and her nipples and inserting his finger in her vagina after removing her underwear. She resisted by turning over and lying on her front, whereupon he left for the sala; she replaced her underwear and fell asleep. He then returned, removed her shorts and underwear while pinning her arms to her shoulders, and, when she did not shout because he threatened to kill her and her brothers and sister, went on top of her, parted her legs, inserted his penis and moved up and down, causing pain until she kicked him as hard as she could, after which he left for the living room and she redressed and slept.

Gazelle confided the incident to her sister Gladys but did not tell her mother because Ospig was always nearby with a menacing look. Ospig continued staying in the house until December 24, 1998, when he left because Elizabeth's common-law husband Alejandro was expected to arrive December 25 and remain until January 1999. On February 10, 1999, Gladys came home at lunchtime and told Elizabeth what Gazelle had confided; Elizabeth fetched Gazelle from school and they went to the Department of Social Welfare and Development, and Gazelle executed a sworn statement at the police station. On February 15, 1999, on referral from the Women and Children Desk of the Baguio City Police Office, Dr. Vladimir V. Villasenor examined Gazelle and found deep healed lacerations at the 5:00 and 8:00 o'clock positions of an elastic fleshy hymen with gaping labia majora, concluding non-virginity physically, with no external signs of recent violence and negative smears for diplococci and spermatozoa, compatible with rape on or about October 19, 1998.

Appellant, for his part, testified that on the evening of October 18 he quarreled with Elizabeth over her late arrivals home, left to drink with one Danny at the billiard hall until 10:00 to 11:00 p.m., and returned home drunk to find the door unanswered but yielding when leaned on, with no electricity. He claimed he lay on Harold's bed, embraced and kissed the person there thinking she was Elizabeth, inserted his hand inside her underwear, felt no pubic hair, then felt a strong kick from Gazelle who spat at him; he washed his face and slept in the sala without telling Elizabeth. During trial he personally handed Elizabeth in court a letter dated August 20, 1999 explaining that after their argument he went home drunk and in the dark mistook Gazelle for Elizabeth, embraced and kissed her, denied raping her, and asked forgiveness, adding in Filipino that he had admitted the incident to her and that if sentenced to death there was nothing he could do. He was arrested at about 6:00 p.m. on April 9, 1999 at his Irisan residence by the PNP Criminal Investigation and Detection Group by virtue of a warrant of arrest, brought for documentation, and turned over to the Baguio City Jail. The trial court credited Gazelle's straightforward account as corroborated by medical evidence and rejected mistaken identity because resistance in the first encounter made clear the person was not Elizabeth before the second, consummated assault.

• Diary and consummation: Appellant argued that the victim's diary entry dated October 18, 1998, partly in coded symbols, stating she was only nearly abused and that the next day he did not abuse her, showed no consummated rape occurred, at most acts of lasciviousness or attempted rape.
• Mistaken identity: Appellant maintained that he mistook the victim for her mother, his live-in partner, because there was no electricity, and that embracing and kissing her and inserting his hand in her underwear did not amount to rape.
• Credibility and inconsistency: Appellant argued that the victim was not credible because on direct examination on August 18, 1999 she said penile insertion occurred only on his second return, while on rebuttal on November 11, 1999 she said insertion occurred both the first time and on his return.
• Voluntary surrender: Appellant maintained that the mitigating circumstance of voluntary surrender should apply because he voluntarily went with the person who served the warrant of arrest at his home.
• Voluntary confession: Appellant argued that his letter to the victim's mother explaining what transpired should be credited as voluntary confession of guilt before the court prior to presentation of evidence for the prosecution, since the prosecution had not yet rested and the letter was marked by both sides.

• Consummation and diary: Whether the victim's diary entry negates consummated rape and reduces liability to acts of lasciviousness or attempted rape.
• Mistaken identity: Whether appellant's claim that he mistook the victim for her mother in the dark negates rape.
• Credibility: Whether alleged inconsistency between direct and rebuttal testimony on when penile insertion occurred destroys the victim's credibility.
• Voluntary surrender: Whether going with the arresting officers serving a warrant constitutes voluntary surrender.
• Voluntary confession: Whether appellant's letter to the victim's mother constitutes voluntary confession of guilt before the court prior to presentation of evidence for the prosecution.
• Penalty and damages: Whether the penalty of reclusion perpetua, civil indemnity, and moral damages are proper for simple rape through force, threat or intimidation.

• Consummation and diary: No. Consummated rape was proved, the victim having clarified that penile insertion causing pain occurred and her straightforward testimony having been corroborated by healed lacerations.
• Mistaken identity: No. Any initial mistake was dispelled after the first resistance and departure, yet appellant returned minutes later and forced intercourse despite resistance, kicking and struggle.
• Credibility: No. The alleged inconsistency does not detract from the fact of rape supported by medical evidence, and trial court credibility findings stand absent overlooked material facts.
• Voluntary surrender: No. The requisites were not met because appellant was actually arrested by virtue of a warrant and merely submitted to authority, without spontaneous unconditional surrender.
• Voluntary confession: No. The letter was a denial of rape, appellant pleaded not guilty, and it was presented by the prosecution after two witnesses had testified, not by the defense before the prosecution's evidence.
• Penalty and damages: Yes. Simple rape through force, threat or intimidation is punishable by reclusion perpetua, with mandatory ₱50,000 civil indemnity and ₱50,000 moral damages.

• Consummation and diary: The diary entry marked Exhibit F-1 was sufficiently explained by the victim to mean penile insertion causing pain, in addition to digital penetration also causing pain. Her detailed narration established two phases: first kissing, nipple-kissing and digital penetration after removing her underwear, interrupted when she turned prone and he left; then, after she replaced her underwear and slept, his return, removal of shorts and panty while pinning her, and penile insertion with up-and-down movement causing pain until she kicked him off. Corroboration was supplied by Dr. Villasenor's finding of deep healed lacerations at 5 and 8 o'clock and gaping labia majora, opined as possibly caused by a fully erect male organ, compatible with an October 19, 1998 rape and supporting non-virginity.
• Mistaken identity: Even assuming an initial mistake, the victim's immediate resistance by turning away and the accused's withdrawal to the sala made clear the person on the bed was Gazelle, not her mother. The return after she fell asleep again and consummation by force despite pinning, threats, resistance and kicking left no room for mistake, showing intent to satisfy desire upon the child.
• Credibility: The variance on whether insertion also occurred during the first approach was immaterial because both accounts affirmed rape on the second intrusion and medical evidence confirmed loss of virginity with compatible healed injuries. Deference was accorded to the trial court's assessment of witness credibility, review of the records disclosing no overlooked, misunderstood or misapplied fact of weight altering the result.
• Voluntary surrender: The three requisites — no actual arrest, surrender to a person in authority, and voluntariness — require spontaneity and unconditional acknowledgment of guilt or desire to save trouble and expense of search or capture. Appellant was arrested at 6:00 p.m. on April 9, 1999 at his residence by virtue of a warrant, documented and jailed; merely going with the server after arrest is submission, not surrender, and no voluntary surrender exists where the warrant shows actual arrest.
• Voluntary confession: Mitigation requires confession of guilt before the court prior to presentation of evidence for the prosecution. The August 20, 1999 letter denied rape, appellant entered a not-guilty plea, and the letter was offered by the prosecution after two prosecution witnesses had testified, so it could not qualify.
• Penalty and damages: Under Article 266-A(1)(a) of Republic Act 8353, rape is committed by a man having carnal knowledge of a woman through force, threat or intimidation; Article 266-B punishes paragraph 1 rape with reclusion perpetua. Force and intimidation were shown by pinning and the death threat against the victim and her siblings that prevented outcry. Civil indemnity of ₱50,000 as actual or compensatory damages is mandatory upon rape conviction, and moral damages of ₱50,000 under Article 2219 of the Civil Code follow without additional pleading or proof beyond the fact of rape, in recognition of injury necessarily resulting from the odious crime.

• Rape through force, threat or intimidation — Rape is committed by a man who has carnal knowledge of a woman through force, threat or intimidation, and is punishable by reclusion perpetua. Applied here, pinning the 13-year-old victim down and threatening to kill her and her siblings to prevent shouting, followed by penile penetration causing pain, constituted simple rape warranting reclusion perpetua.
• Credibility of witnesses; deference to trial court — Findings on credibility carry great weight and respect and will be sustained unless the trial court overlooked, misunderstood or misapplied facts or circumstances of weight and substance altering the decision. Applied here, the victim's straightforward account was upheld despite an alleged direct-versus-rebuttal variance, especially as corroborated by compatible healed hymenal lacerations.
• Voluntary surrender as mitigating circumstance — The requisites are (a) the offender has not been actually arrested, (b) surrender to a person in authority, and (c) spontaneity with unconditional intent shown by acknowledgment of guilt or desire to save authorities trouble and expense of search or capture. Applied here, mitigation failed because appellant was actually arrested by warrant and merely submitted to police authority.
• Voluntary confession of guilt — The mitigating circumstance requires confession of guilt before the court prior to presentation of evidence for the prosecution. Applied here, a letter denying rape, coupled with a not-guilty plea and presentation by the prosecution after its witnesses testified, was not a qualifying confession.
• Civil indemnity and moral damages in rape — Upon rape conviction, civil indemnity of ₱50,000 as actual or compensatory damages is mandatory, and moral damages of ₱50,000 under Article 2219 of the Civil Code are due without additional pleading or proof beyond the fact of rape, in recognition of injury necessarily resulting from the crime. Applied here, both awards were imposed.

• "He inserted his penis in my vagina." — Victim's clarification of her coded diary entry, relied upon to reject the claim of mere near-abuse and to establish consummated penile penetration causing pain.
• "Moreover, the trial court’s finding on the credibility of witnesses carry great weight and respect and will be sustained by the appellate courts unless the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or affect the result of the case." — Canonical deference rule invoked to uphold the trial court's belief in the victim despite alleged inconsistency between direct and rebuttal testimony.
• "Voluntary surrender must be spontaneous and the intent of the accused to surrender unconditionally to the authorities must be shown because he has acknowledged his guilt or he wished to save the authorities the trouble and expenses necessarily incurred in his search or capture." — Definition applied to deny mitigation where appellant merely accompanied officers executing an actual arrest by warrant.

• People vs. Viajedor, G.R. No. 148138, April 11, 2003 — Cited for deference to trial court credibility findings and for mandatory civil indemnity and moral damages upon rape conviction; followed to affirm conviction and damages.
• People vs. Banela, 301 SCRA 84, 90-91 (1999) — Cited through People vs. Viajedor as authority for the weight of trial court credibility assessments; followed.
• People vs. Javier, 377 SCRA 300, 311 (2002) — Cited for the requisites of voluntary surrender and the requirement of spontaneity and unconditional surrender; followed to deny mitigation.
• People vs. Caber, Sr., 346 SCRA 166, 176 (2000) — Cited alongside People vs. Javier for the requisites of voluntary surrender; followed.
• People vs. Baybado, 335 SCRA 712, 727 (2000) — Cited for the rule that there can be no voluntary surrender if the warrant shows actual arrest; applied to deny mitigation.

• Article 266-A, paragraph 1(a), Republic Act 8353 — Defines rape as committed by a man having carnal knowledge of a woman through force, threat or intimidation; applied to the pinning, death threats, and penile penetration proved.
• Article 266-B, Republic Act 8353 — Punishes rape under paragraph 1 of Article 266-A with reclusion perpetua; applied to impose reclusion perpetua for simple rape.
• Article 2219, Civil Code — Allows moral damages for criminal offenses resulting in physical injuries and for rape and other lascivious acts; applied to award ₱50,000 moral damages without further proof beyond rape.
• Article 29, Revised Penal Code — Governs credit of preventive imprisonment; applied by the trial court to credit 4/5 of detention in service of sentence.

Davide, Jr., C.J. (Chairman), Panganiban, Ynares-Santiago, and Carpio, JJ., concur.