Republic of the Philippines

7TH Judicial Region

REGIONAL TRIAL COURT OF BOHOL
Branch 3
City of Tagbilaran

THE PEOPLE OF THE PHILIPPINES,

Plaintiff, Crim. Case No. 14194
For: CHILD ABUSE
(Sexual Abuse)
-versus-
Crim. Case No. 14195
For: ACTS OF
EDGAR DELA CUESTA, LASCIVIOUSNESS
Accused.
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OMNIBUS ORDER

For action is the Demurrer to Evidence with Approved Leave filed by

accused Edgar dela Cuesta in the relation to the above-captioned cases.

In Republic vs. Estate of Alfonso S. Lim, Sr., G.R. No. 164800, July 22,
2009, the Supreme Court defined demurrer to evidence as an objection by one of
the parties in an action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to make out a case or
sustain the issue. The party demurring challenges the sufficiency of the whole
evidence to sustain a verdict. In passing upon the sufficiency of the evidence
raised in a demurrer, the court is merely required to ascertain whether there is
competent or sufficient proof to sustain the indictment or to support a verdict of
guilt. And when the court denies the demurrer, the defendant has to present
countervailing evidence against the evidence adduced by the plaintiff.

Demurrer to evidence in criminal cases is governed Section 23, Rule 119 of

the rules of Court. In Uy vs. Chua, G.R. No. 183965, September 18, 2009, it was
held that demurrer to evidence authorizes a judgment on the merits of the case
without the defendant having to submit evidence on his part, as he would
ordinarily have to do, if plaintiff's evidence shows that he is not entitled to the
relief sought. Demurrer, therefore, is an aid or instrument for the expeditious
termination of an action, similar to a motion to dismiss, which the court or tribunal
may either grant or deny.

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 The Supreme Court has recently established some guidelines as to when a
demurrer to evidence should be granted, thus:
A demurrer to evidence may be issued when, upon the facts and the
law, the plaintiff has shown no right to relief. Where the plaintiff's evidence
together with such inferences and conclusions as may reasonably be
drawn therefrom does not warrant recovery against the defendant,
a demurrer to evidence should be sustained.

A demurrer to evidence is likewise sustainable when, admitting

every proven fact favorable to the plaintiff and indulging in his favor all
conclusions fairly and reasonably inferable therefrom, the plaintiff has
failed to make out one or more of the material elements of his case, or
when there is no evidence to support an allegation necessary to his claim.
It should be sustained where the plaintiff's evidence is prima facie
insufficient for a recovery.

This Omnibus Order has reference to two (2) related cases with the same
respondent, the incidents of which allegedly happened in the afternoon of
December 13, 2008 at Dait Sur, Inabanga, Bohol. In Criminal Case No. 14194, the
complainant is a certain Ozziel Lofranco y Perez who was still eleven (11) years of
age at the time the alleged incident happened, while in Criminal Case No. 14195,
the complainant is a certain Maricar Omit y Aparici who was still ten (10) years
old at the time of the incident.

The facts in this case may be summarized to the effect that on the afore-
mentioned date, time and place, Ozziel Lofranco, Maricar Omit and Giovanni
Doblas went to the farm of accused Edgar dela Cuesta known Sambawan Peak
situated in Dait Sur, Inabanga, Bohol, to play. While playing inside the farmhouse,
the accused, allegedly, with lewd design and/or lecherous sexual desire touched the
breast of Ozziel Lofranco; and on or about the same occasion, the accused also
allegedly pushed and pressed his hard penis against the back of Maricar Omit.

With regards to Criminal Case No. 14195, this Court finds sufficient basis to
grant that the demurrer to evidence relative thereto. While no test definitely
determines which is and which is not considered reasonable doubt under the law, it
must necessarily involve genuine and hard facts constituting the elements of the
crime, and not merely suppositional thinking. And these are what the doubt created
in this case is based on, thus:

Q. How about Edgar de la Cuesta, can you point his location?

A. He is (sic) at my back.

Q. Was the body of Edgar de la Cuesta touching your back?

ATTY. AMANTE:

That is leading, your Honor.

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PROS. ALVARO:

She is a minor, your Honor.

COURT:

Witness may answer.

A. Yes, Sir.

Q. What did you notice when his body was touching your back?

A. I was surprised that there was a hard object pressing at my back.

Q. Do you know what was that hard object pressing at your back?

ATTY. AMANTE:

This kind of question, she will be asked to make a guess. Even if she is a
minor, she will not be allowed to make a guess because she testified already
that there was something hard object.

PROS. ALVARO:

Okay. We will reform the question, your Honor.

Q. You said you feel something hard in (sic) your back, can you tell this
Honorable Court if the front of the body of Edgar dela Cuesta touched your
back?

ATTY. AMANTE:

That will be vague, your Honor. That is not clear.

COURT:

Witness may answer.

A. Yes, maam.

Q. And what was your reaction upon noticing that something hard on your
back?

A. I ran away because I was afraid.

Q. Why were you afraid?

A. I was surprised that there was a hard object pressing at my back.

(TSN August 24, 2010)

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 In the Information in Criminal Case No. 14195, Edgar dela Cuesta is
charged with Acts of Lasciviousness for allegedly, with lewd design, pushing and
pressing his penis against the back of Maricar Omit. Yet, it does not require an
inquisitive mind to notice the weak points and flaws in the testimony of Maricar
Omit, to wit:

a. Maricar Omit did not say that only the lower frontal part of the body of
the accused touched her back, but his body, meaning, the entire frontal
part of the body of the accused. Hence, the alleged hard object that was
allegedly pressed on her back may have been a hand, the lower arm, a
finger or an elbow;

b. Granting that it was the pelvis or lower frontal part of the body of the
accused that touched the back of Maricar, she cannot be sure what the
hard object pressed on her back, really was. It could have been the
buckle of a belt, the zipper or button area of the pants (pondejuhan in
the dialect), or maybe something inside the pocket;

c. Maricar did not touch, feel or hold the alleged hard object that was
pressed on her back, nor did she take a look at it, hence, she cannot be
sure nor certain what it really was. Relatively, there would be no basis
for her to state with certainty that it was the penis of the accused.

In People vs. Fabito, G.R. No. 179933, April 16, 2009, the Supreme Court
said:

In our jurisdiction accusation is not synonymous with guilt. The

freedom of the accused is forfeited only if the requisite quantum of proof
necessary for conviction be in existence. This, of course, requires the most
careful scrutiny of the evidence for the State, both oral and documentary,
independent of whatever defense is offered by the accused. Every
circumstance favoring the accused's innocence must be duly taken into
account. The proof against the accused must survive the test of reason.
Strongest suspicion must not be permitted to sway judgment. The
conscience must be satisfied that on the accused could be laid the
responsibility for the offense charged. If the prosecution fails to discharge
the burden, then it is not only the accused's right to be freed; it is, even
more, the court's constitutional duty to acquit him.

The situation in Criminal Case No. 14195 is different. In his Demurrer to

Evidence, the accused would like to emphasize upon this Court that the
prosecution was not able to build a case against him. In saying so, he is banking
on the supposed weakness of the testimony of private complainant Oziel Lofranco,
coupled with the fact that the testimony of Oziel,s mother Josephine Lofranco is
obviously hearsay, and the fact that the other supposed prosecution witnesses in the
person of Giovani Doblas and others were not presented in court. Relatively, the
accused has this to say:

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 In the entire testimony of OZIEL LOFRANCO, she narrated
that her BREASTS was not touched by the accused, BUT
BEHIND HER BREAST. The information mentions breast so 2
breasts. BUT, she did not mention even one breast was
touched, but apparently she mentioned behind the breast,
please see the TSN DATED March 9, 2010.

Relative thereto, the Supreme Court said in People vs. Rellota, 168103
August 3, 2010, that testimony must be considered and calibrated in its entirety
inclusive and not by truncated or isolated passages thereof. Due consideration must
be accorded to all the questions propounded to the witness and her answers thereto.
The whole impression or effect of what had been said or done must be considered
and not individual words or phrases alone.

Going over the transcript of stenographic notes, it is worthy to consider that

the testimony of Oziel Lofranco was started only with a few preliminary questions
on March 9, 2010 and was cut-short at noon-time. Hence, the meat of her
testimony was taken only on July 13, 2010. The point is, in the testimony of Oziel
Lofranco on July 13, 2010, she did not narrate, that her BREAST was not
touched by the accused, BUT BEHIND HER BREAST. On the contrary, the
portion of Oziel Lofrancos testimony that entails open consideration is as follows:

Q. When you were near in (sic) the aquarium, where was Edgar dela Cuesta?

A. He was near to (sic) me.

Q. And what did he do when he was near you?

A. He touched my breast and thigh.

Q. What part of your breast he touched?

A. At the lower portion.

Q. Can you demonstrate what parts were touched by Edgar dela Cuesta?

(The witness is pointing the lower right portion of her breast)

Q. And you said that your thigh was also touched, what particular part of your
thigh?

(The witness pointing the right portion of her thigh)

(TSN July 13, 2010)

The accused also raised as basis in his demurrer to evidence the following
points: (a) that, Maricar Omit and Giovanni Doblas did not state in their affidavits
that they saw the incident even if they were just a few meters away; (b) that,
Josephine Lofranco, mother of complainant Oziel Lofranco has no personal

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knowledge of the incident; (c) that, the Police Investigator, as well as the Social
Welfare Officer of Inabanga, Bohol were not presented as witnesses.

To the mind of this Court, these are evidentiary matters. In fact, in Sevalle
vs. Court of Appeals, 353 SCRA 33, it is stated that "unless expressly required by
law, the testimony of a single witness, if found credible and positive, is sufficient
to convict for the truth is established not be the number of witnesses but by the
quality of their testimonies - criminals are convicted, not on the number of
witnesses against them, but on the credibility of the testimony of even one witness
who is able to convince the court of the guilt of the accused beyond the shadow of
doubt"

This Court is not saying that the accused is guilty as charged in Criminal
Case No. 14194. Thus, while as a rule, the burden of proof rests solely on the
prosecution, with the positive testimony of complainant Oziel Lofranco, the burden
of evidence now shifts towards the shoulder of the accused.

Section 32, Article XIII, of the Implementing Rules and Regulations of RA

7610 of the Child Abuse Law defines lascivious conduct, as follows:

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.

And this is what the accused must prove in court in order to overcome the
positive testimony of the private complainant against him; that his act of touching
the breast of the complainant, if ever he did so or was able to do so, was not
intentional, nor was it done with an intent to abuse, humiliate, harass or degrade
the complainant, or to arouse or gratify his sexual desire. Relatively, he must
present sufficient and competent evidence on the matter.

WHEREFORE, for insufficiency of evidence, the Demurrer to Evidence

with Approved Leave filed by accused Edgar dela Cuesta in Criminal Case No.
14195, as above-captioned, is hereby granted and said case is hereby ordered
DISMISSED.

Corollary thereto, the bail bond posted by the accused for his provisional
liberty in Criminal Case No. 14195 in the amount of P12,000.00 per O.R. No.
7733770 dated June 8, 2009 is hereby ordered cancelled and released to the payor
Natividad dela Cuesta.

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 On the other hand, the Demurrer to Evidence with Approved Leave filed by
accused Edgar dela Cuesta in Criminal Case No. 14194 is hereby DENIED on the
reason that the prosecution was able to establish competent proof to sustain the
indictment or to support a verdict of guilt against him. Corollary thereto, the
accused has to present countervailing evidence against the evidence adduced by the
prosecution in order for him to attain a verdict of acquittal.

The Clerk of Court is hereby directed to set Criminal Case No. 14194 for
immediate reception of evidence for the accused.

SO ORDERED.

Given in Chambers this 10th day of May, 2011, City of Tagbilaran, Bohol,
Philippines.

LEO MOISES LISON

Presiding Judge

LML/dbv