Shariff Uddin y Sali vs. People of the Philippines

A single act of coerced lascivious touching of a child below 18 years of age constitutes Lascivious Conduct under Section 5(b), Article III of Republic Act No. 7610 without proof of a separate prior sexual abuse, while throwing the child into a deep ravine to conceal the abuse establishes attempted killing but not abuse of superior strength absent deliberate excessive use of strength. The elements of Lascivious Conduct were all present through intimidation, and intent to kill was proved by external manifestations, yet the qualifying circumstance failed because purposeful taking advantage of strength disparity was not shown.

AAA was a 13-year-old minor born on February 23, 2002, entitled to special protection under Republic Act No. 7610 against child abuse, exploitation and discrimination. Shariff Uddin y Sali was an adult construction worker from Zamboanga City who had been staying for three weeks with his live-in partner's parents in AAA's locality. Section 5(b), Article III of Republic Act No. 7610 punishes sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse with reclusion temporal in its medium period to reclusion perpetua.

On February 20, 2016 at about 10:30 a.m., AAA, then 13 years old, was on her way to buy food and chicken feed upon her father's order when she encountered petitioner coming from the opposite direction about 15 to 18 meters away. At a place where there were no houses, petitioner blocked her way, pulled her to a forested or masukal area, and touched her breast in a circular motion while pulling her for about 35 minutes. Despite her pleas to stop and her attempts to pull away, petitioner inserted his hand inside her panty and touched her private part while embracing her and telling her not to be noisy, leaving her immobile from fear.

Thereafter petitioner suddenly carried AAA and threw her into a ravine about 25 meters high from where they stood. She rolled down, hit her head on the ground, lost one slipper, and was prevented from further rolling by vines that wrapped around her body. When she stood up, she removed the vines, retrieved her slipper, looked for the other one, and ran until she saw a man at the top of the mountain whom she asked for help. The man, Alvin Santos, came down, brought her up to the road, and took her to his niece's house; she had many bruises and body pain and recounted what happened. According to Santos, who was about 10 meters away getting cogon grass, he saw petitioner pulling AAA, then carrying and throwing her into the cliff, and when asked why, petitioner only looked at him and ran away while AAA cried for saklolo.

Later that day AAA's parents arrived, the incident was reported to the police, and AAA identified petitioner at his house, leading to his arrest. She was medically examined at 4 p.m. on the same day by Dr. Joy Cristobal-Gonzalo, who found old hymenal lacerations at 1, 3, 6 and 9 o'clock positions opined to have been sustained more than six months before. Petitioner, for his part, denied the charges and testified that he stayed inside his house taking care of his one-year-old child during the three-week vacation and did not go out, claiming he first saw AAA only when she came asking about a running man, though he gave inconsistent answers on cross-examination about whom he first spoke with and denied knowing Santos. The trial court found AAA consistent, natural, unwavering even on cross-examination, without fabrication, and found intent to touch private parts, flagrant intent to kill from throwing her 25 to 30 meters down, and abuse of superior strength from the disparity between a 13-year-old girl and an adult male construction worker.

• Second Element of Section 5(b): Petitioner argued that the prosecution neither alleged nor proved that AAA was a child exploited in prostitution or subjected to other sexual abuse apart from the incident charged, so the second element was missing.
• Credibility and Inconsistency: Petitioner maintained that AAA was inconsistent in testifying on direct examination that he pulled her to the forested area but stating on cross-examination that he was not able to pull her.
• Behavior After Incident: Petitioner argued that AAA's actuation of retrieving her slipper and looking for the other one after rolling to the ground lies outside human experience, since a sexually abused person would exert effort to escape rather than bother with belongings.
• Denial and Alibi: Petitioner maintained that he did not commit the crimes because he was inside his house taking care of his child and had not gone out during the three-week stay.

• Lascivious Conduct: Whether petitioner's acts of touching the breasts and vagina of 13-year-old AAA constitute Lascivious Conduct under Section 5(b), Article III of RA 7610 despite the absence of a separate prior sexual abuse.
• Attempted Killing and Qualifying Circumstance: Whether petitioner's act of throwing AAA into a deep ravine after the sexual abuse establishes Attempted Murder with abuse of superior strength, and whether AAA's testimony is credible despite alleged minor inconsistency and post-incident behavior.

• Lascivious Conduct: Yes. All three elements were present, coercion having subdued AAA's will, and a single coerced act suffices without a separate prior abuse.
• Attempted Killing and Qualifying Circumstance: Partly. Intent to kill was proved, but abuse of superior strength was not; liability is only for Attempted Homicide, with AAA's minor inconsistency immaterial and denial rejected.

• Lascivious Conduct: The offense requires (1) commission of sexual intercourse or lascivious conduct, (2) with a child exploited in prostitution or subjected to other sexual abuse, and (3) the child is below 18. AAA was undisputedly 13, as alleged and proved by Certificate of Live Birth. Touching her breasts and inserting a hand into her panty to caress her vagina falls within intentional touching of genitalia and breast with intent to gratify sexual desire. Coercion equivalent to intimidation, which need not be irresistible, was shown when petitioner blocked her in a deserted place, pulled her to a forested area for 35 minutes despite resistance and pleas, frightened her into immobility, and ordered silence. Under Olivarez vs. Court of Appeals and People vs. Tulagan, other sexual abuse includes lascivious conduct through coercion or intimidation by an adult, and child abuse under Section 3(b) covers maltreatment whether habitual or not, so no distinct prior abuse is required.
• Attempted Killing and Qualifying Circumstance: Attempted felony requires commencement by overt acts without performing all acts of execution due to a cause other than spontaneous desistance. For attempted murder, intent to kill must be proved clearly through means used, wounds, conduct before, during and after, circumstances and motive. Intent was evident from carrying AAA and throwing her into a 25 to 30-meter ravine, comparable to falling from a third floor, apparently to conceal sexual abuse, with consummation prevented only by vines. Abuse of superior strength, however, requires not merely inequality in age, size and strength but deliberate taking advantage through excessively disproportionate force. No such purposeful excessive force was shown beyond carrying and throwing after a 35-minute pulling, and no physical injuries were proved despite allegation of multiple abrasions, the medical examination having covered only the hymen. Hence no Article 248 qualifying circumstance attended, reducing liability to Attempted Homicide. AAA's pull-versus-not-pulled discrepancy was minor, inconsequential to elements, and excused by leeway for minor witnesses recounting trauma; youth is a badge of truth, trial court credibility findings are binding absent arbitrariness, and unsubstantiated denial and inherently weak alibi cannot prevail over positive identification.

• Lascivious Conduct under Section 5(b), Article III of RA 7610 — The elements are: (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 is below 18 years of age, or over but unable to fully care for or protect herself or himself. Applied here, all elements concurred because petitioner sexually touched a 13-year-old through coercion. For victims 12 years old or above but under 18, the nomenclature is Lascivious Conduct under Section 5(b) of RA 7610 without reference to the Revised Penal Code, punishable by reclusion temporal in its medium period to reclusion perpetua.
• Other sexual abuse; coercion or intimidation — Other sexual abuse covers not only abuse for profit but also lascivious conduct through coercion or intimidation by an adult, and child abuse under Section 3(b) includes maltreatment whether habitual or not. A single incident suffices; no separate distinct prior sexual offense need be alleged or proved. Intimidation need not be irresistible; blocking, dragging to a secluded area, frightening, and silencing the child satisfies compulsion subduing the will.
• Intent to kill in attempted or frustrated murder — Intent to kill, a specific intent distinct from general criminal intent presumed from dolo, must be alleged and proved by direct or circumstantial evidence through external manifestations. Factors considered are (1) means used, (2) nature, location and number of wounds, (3) conduct before, during or immediately after, and (4) circumstances and motive. Throwing the victim into a deep ravine after sexual abuse to conceal it manifests intent to kill.
• Abuse of superior strength — Present whenever there is inequality of forces notoriously advantageous for the aggressor and the aggressor takes advantage of it, depending on age, size and strength. Superiority alone is insufficient; it must be shown the assailant consciously sought the advantage or deliberately used force excessively out of proportion to the means of defense. Mere carrying and throwing without proof of such excessive force, despite age disparity, does not establish the circumstance.
• Credibility of child victim; denial and alibi — When the offended party is of tender age, courts give credit to her account considering vulnerability and shame if untrue; youth and immaturity are badges of truth. Trial court assessments of demeanor are entitled to great weight if not conclusive. Minor inconsistencies on non-essential details do not impair credibility. Denial, if unsubstantiated, is self-serving and deserves no weight, and alibi is inherently frail, easy to fabricate and difficult to rebut, and cannot prevail over positive categorical identification.
• Penalties; Indeterminate Sentence Law — Lascivious Conduct under Section 5(b) carries reclusion temporal medium to reclusion perpetua; the Indeterminate Sentence Law applies because reclusion perpetua is used as maximum of a range starting from a divisible penalty. Absent Section 31 circumstances, minimum is taken from prision mayor medium to reclusion temporal minimum and maximum from reclusion temporal maximum. Attempted Homicide is punished two degrees lower than reclusion temporal for consummated homicide, or prision correccional, with minimum from arresto mayor. Applied here, penalties were fixed at 8 years and 1 day of prision mayor medium to 20 years of reclusion temporal maximum, and 6 months of arresto mayor to 4 years and 2 months of prision correccional, respectively.

• "Lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person[.] — States the controlling regulatory definition used to classify petitioner's breast and vaginal touching as lascivious conduct.
• "There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance." — Recites the statutory definition of attempted felony applied to differentiate attempted killing from consummation prevented by vines.
• "The circumstance of abuse of superior strength is present whenever there is inequality of forces between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor, and the latter takes advantage of it in the commission of the crime." — Provides the canonical test whose second requirement of deliberate taking advantage was found unproven, causing downgrade to homicide.
• "When the offended party is of tender age and immature, courts are inclined to give credit to her account of what transpired, considering not only her relative vulnerability but also the shame to which she would be exposed if the matter to which she testified is not true. Youth and immaturity are generally badges of truth and sincerity." — Justifies crediting AAA's testimony despite minor inconsistency and post-incident behavior.

• People vs. Tulagan, G.R. No. 227363, March 12, 2019 — Followed as controlling on nomenclature and penalty for Lascivious Conduct when victim is 12 to under 18, on single-act sufficiency under Section 5(b), and on damages and interest.
• Olivarez vs. Court of Appeals, 503 Phil. 421 (2005) — Followed to hold other sexual abuse includes lascivious conduct through coercion or intimidation by an adult and that intimidation need not be irresistible.
• People vs. Caoili, 815 Phil. 839 (2017) — Cited by the CA for classifying the offense as Lascivious Conduct under Section 5(b) when victim is 12 or over but under 18.
• Yap vs. People, G.R. No. 234217, November 14, 2018 — Followed for elements of attempted felony and factors proving intent to kill in attempted or frustrated murder.
• People vs. Evasco, G.R. No. 213415, September 26, 2018 — Followed to require conscious seeking or deliberate use of superior advantage and to deny exemplary damages absent aggravating circumstance.
• People vs. Jugueta, 783 Phil. 806 (2016) — Followed to fix damages for Attempted Homicide at P20,000.00 civil indemnity and P20,000.00 moral damages with no exemplary damages.
• People vs. Nocido, G.R. No. 240229, June 17, 2020 — Followed for application of the Indeterminate Sentence Law to Lascivious Conduct and absence of Section 31 circumstances.

• Section 5(b), Article III, Republic Act No. 7610 — Punishes those who commit sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse with reclusion temporal medium to reclusion perpetua; applied to petitioner's coerced sexual touching of 13-year-old AAA.
• Section 3(a) and 3(b), Republic Act No. 7610 — Define children as persons below 18 and child abuse as maltreatment whether habitual or not including sexual abuse; used to establish minority and to reject need for separate prior abuse.
• Article 248, Revised Penal Code, as amended by RA 7659 — Defines murder and lists abuse of superior strength as qualifying circumstance; examined but found inapplicable for lack of deliberate advantage-taking.
• Article 249, Revised Penal Code — Defines homicide without Article 248 circumstances punishable by reclusion temporal; applied after downgrade to Attempted Homicide.
• Article 6, paragraph 3, Revised Penal Code — Defines attempted felony; applied to hold petitioner commenced killing by throwing AAA into the ravine but failed to consummate due to vines.
• Article 51, Revised Penal Code and Indeterminate Sentence Law — Provide penalty two degrees lower for attempted felony and rules for minimum and maximum terms; used to compute indeterminate penalties for both offenses.
• Section 31, Republic Act No. 7610 — Lists common penal provisions for imposing maximum period; found absent, so penalties were taken from medium periods and standard ranges.

Leonen, J. (Chairperson), Hernando, J., Delos Santos, J., and Rosario, J., concur.