32 People V Mendoza

PEOPLE VS.
ROGER MENDOZA
G.R. No. 180501
November 24, 2008
VELASCO JR., J.:
This is a rape case involving 6-year-old victim, AAA. It occurred in the early afternoon of
April 25, 2000 after her parents had left for work. She was then six (6) years old. At home with her
on that day was the maid and accused-appellant, who was reapplying as family driver. As she was
playing with the water hose in the garage, her dress got wet forcing her to repair to her room to
change. Accused-appellant followed. Once inside the room, accused-appellant tried to undress her,
tightly held her hands, and told her to lie in the bed. He thereupon pulled her panties down. In
reaction, she pulled it up but accused-appellant quickly pulled it down again. It was at this moment
when, according to AAA, accused-appellant touched her vagina with his fingers and kissed her on
the left cheek. All the while, he repeatedly assured her of being her friend and that they were just
playing the mother-and-father roles. Shortly after, she ran to her parents' room and locked the
door. Accused-appellant followed but left after AAA ignored his insistence to continue with the
father-mother game. Later in the evening, AAA told her parents about her ordeal, after which they
reported the matter to barangay officials and the police. AAA was then asked to undergo a medical
examination.
In the course of her direct examination, AAA was presented a sketch of a female body to
assist her pinpoint what part of her body accused-appellant touched. In response, she shaded the
area in between the legs of the female figure. AAA's father testified that accused-appellant first
applied as a driver in 1995. He came back to reapply on April 24, 2000, was asked to drive on that
day, and stayed for the night. The following morning, her father left early for work leaving the still
sleeping applicant behind. The father narrated what his daughter disclosed when he arrived home
from work, adding that, when he routinely called the house at about 3:00 in the afternoon, the
answering AAA called accused-appellant "bastos" and explained why so. AAA's mother
corroborated for the most part her husband's testimony. She attested that AAA was only six years
old when it happened.
DEFFENSE:
Accused-appellant admitted to being at AAA's family home on April 24, 2000 and staying
overnight. He remained in the house the following day waiting for AAA's father to return so he
could collect what he earned for a day's work. To while his time away, he went outside to watch and
talk to persons doing road repair work. And while outside, he suddenly felt water falling upon him.
As it turned out, AAA was playing in the yard with the water hose aimed at him, which he did not
mind. She continued to play with the hose and ended up flooding the garage. Thereafter, he asked
the road workers about the possibility of working with them only to be told he would need a
barangay clearance. He then left, returning a few days later to submit his clearance to the workers'
foreperson and to collect his one-day salary. According to accused-appellant, AAA's father was so
angry at him for not waiting last April 25, 2000 that he pushed accused-appellant and banged his
head against the garage wall. After AAA's mother pacified her irate husband, barangay officials
arrived and brought accused-appellant to the police station. Once there, accused-appellant was
charged with molesting AAA, who, however, did not say anything at the police station; it was her
mother who answered all the questions of the police investigator. He was charged with fingering
the sexual organ of AAA. He denied the accusation, asserting that he did not touch the child, being
outside their house on the day in question watching men doing road repair work.
On October 27, 2004, the RTC rendered judgment finding accused-appellant guilty of rape.
CA modified the RTC's decision, the modification consisting of downgrading the crime to and
finding accused-appellant guilty of acts of lasciviousness, a crime which is necessarily included in
the offense charged in the underlying Information The CA predicated its modificatory disposition
on the interplay of the following premises: The RTC hastily concluded that rape was committed
because there was insertion by accused-appellant's finger into the private part of AAA. The records,
however, show that accused-appellant merely stroked the external surface of AAA's vagina. The
medical findings also showed that there was no physical manifestation of insertion into AAA's
vagina, bolstering the inference that no insertion took place.
On July 12, 2007, accused-appellant filed his Notice of Appeal of the CA decision.
ISSUE/S:
Whether or not the CA erred in convicting accused-appellant for the crime of acts of lasciviousness
on the basis of the evidence presented.
RULING:
The Court need not belabor the issue of whether or not accused-appellant is guilty of rape
which in turn resolves itself into the question of whether or not he inserted his fingers into AAA's
sexual organ. The issue has been peremptorily answered in the negative by the CA, basing its
resolution on the relevant finding of the examining doctor and on the testimony of AAA, who, at
best, was tentative in her response when queried about the finger-insertion aspect of the incident.
Also, the People does not challenge the determination. And precisely because of the fact of non-
insertion, that the appellate court was impelled, and rightly so, to downgrade the criminal act to
acts of lasciviousness. The records appear to support the appellate court's modificatory action.
By analogy, we hold that for a charge for rape by sexual assault (with the use of one's fingers as the
assaulting object, as here) to prosper, there should be evidence of at least the slightest penetration
of the sexual organ and not merely a brush or graze of its surface.
This is in consonance with Article 266-A, paragraph 2 of the Revised Penal Code, as
amended by Republic Act No. 8353, which provides:
Art. 266-A. Rape; when and how committed.--Rape is committed--
1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a. Through force, threat or intimidation;
b. When the offended party is deprived of reason or otherwise unconscious;
c. By means of fraudulent machination or grave abuse of authority; and
d. When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present.
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his penis into another person's
mouth or anal orifice, or any instrument or object, into the genital or anal orifice of
another person.
As the CA observed, AAA's telling testimony deserves full faith and credit, given as it were in a
categorical manner by a young and an immature girl who had no motive and none was ascribed by
the defense to falsely impute the commission of a serious crime against the accused. And if we may
add, in cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is
sufficient to establish the guilt of the accused.

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