[A.C. No. 6567. AUGUST 11, 2008]

SECOND DIVISION

JOSE C. SABERON, Complainant, vs. ATTY. FERNANDO T. LARONG, Respondent.

SYLLABUS

of the Ruling of the Court

1. LEGAL ETHICS; ATTORNEYS; THE COURT'S RULING THAT THE ASCRIPTION OF "BLACKMAIL" IN THE ANSWER WAS NOT LEGITIMATELY RELATED OR PERTINENT TO THE SUBJECT MATTERS OF INQUIRY BEFORE THE BANGKO SENTRAL NG PILIPINAS (BSP) STANDS WHETHER THE STATEMENTS ARE IN THE NATURE OF A COUNTER-COMPLAINT OR A COUNTERCLAIM EMBODIED IN THE ANSWER AS RESPONDENT PRESENTLY MAINTAINS.Respondent's submission that the Answer containing the allegations of blackmail is protected by the mantle of absolute privilege was already pleaded in his Comment to Petition for Review that the allegations were absolutely privileged, like allegations made in any complaint or initiatory pleading. There, he also proffered, as he now maintains in his motion, the relevancy or pertinency of the questioned statements to the issues being litigated before the BSP. To respondent's contentions, the Court ruled that the ascription of "blackmail" in the Answer was not legitimately related or pertinent to the subject matters of inquiry before the BSP, which were the alleged alien citizenship and majority stockholding of Alfredo Tan Bonpin in the Surigaonon Rural Bank. And it reminded respondent that lawyers, though allowed latitude in making a remark or comment in their pleadings, should not trench beyond the bounds of relevancy and propriety. This Court's ruling

stands whether the statements are in the nature of a counter-complaint or a counterclaim embodied in the Answer as respondent presently

maintains.

2. ID,; ID.; RESPONDENT'S INVOCATION OF THE RULE ON PRIVILEGED COMMUNICATION IS MISPLACED; THE DEFENSE IS PECULIAR TO THE CRIMINAL CASE FOR LIBEL THAT RESPONDENT FACES WHICH DEPENDS ON A TOTALLY DIFFERENT AND EVIDENTLY

On the other hand, respondent's submission that the Answer containing the allegations of blackmail is protected by the mantle of absolute privilege was already pleaded in his Comment to Petition for Reviews that the allegations were absolutely privileged, like allegations made in any complaint or initiatory pleading. There, he also proffered, as he now maintains in his motion, the relevancy or pertinency of the questioned statements to the issues being litigated before the BSP.

To respondent's contentions, the Court ruled that the ascription of "blackmail" in the Answer was not legitimately related or pertinent to the subject matters of inquiry before the BSP, which were the alleged alien citizenship and majority stockholding of Alfredo Tan Bonpin in the Surigaonon Rural Bank. And it reminded respondent that lawyers, though allowed latitude in making a remark or comment in their pleadings, should not trench beyond the bounds of relevancy and propriety.

This Court's ruling stands whether the statements are in the nature of a countercomplaint or a counterclaim embodied in the Answer as respondent presently maintains.

Respondent alternatively contends that the questioned allegations fall within the ambit of a conditionally or qualifiedly privileged communication under Article 354 (1)7 of the Revised Penal Code. He submits that the statements, while opening up a

lawyer to possible administrative sanction for the use of intemperate language under the Canons of Professional Responsibility, should not strip the pleadings in which they made their privileged nature.

Respondent's invocation of the rule of privileged communication in the present administrative matter is misplaced. It behooves to state that this defense is peculiar to the criminal case for libel that respondent faces, which depends on a totally different and evidently higher quantum of evidence than is required in this administrative case. Needless to say, this Court's ruling as to the administrative liability of respondent is not conclusive of his guilt or innocence in the libel case.

WHEREFORE, complainant's and respondent's respective Motions for Reconsideration are

SO ORDERED.

DENIED.

Quisumbing, Corona, Velasco, Jr., and Brion, JJ. concur.

ATTESTATION

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

(Sgd.) LEONARDO A. QUISUMBING
Associate Justice

Chairperson

5 Id. at 234-241.

6 Id. at 236.

7 Art. 354 (1) of the Revised Penal Code reads: Art. 354. Requirement of publicity.- Every defamatory imputation is presumed to be malicious, even if it be true, of no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty;

[CR No. 00150. January 4 2005]*

PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. ISIDRO AVESILLA, accused-appellant.

1. REMEDIAL LAW; EVIDENCE; RAPE; LUST IS NO RESPECTER OF TIME AND PLACE.-Timehonored is the doctrine that lust is no respecter of time and place, and it could be committed even in unlikely places where people congregate, in parks, along roadsides, in school premises, in a house where there are other occupants, in the same room where other members of the family are also sleeping, and even in places which to many would appear unlikely or high risk venues for its commission (People vs. Yonto, 392 SCRA 468 [2002]).

2. ID.; ID.; EVIDENCE; WITNESSES; TESTIMONIAL

EVIDENCE; THE CRYING OF A VICTIM DURING HER TESTIMONY IS EVIDENCE OF THE TRUTH OF THE RAPE CHARGES.-It has been held that the crying of a victim during her testimony is evidence of the truth of the rape charges, for the display of such emotion indicates the pain that the victim feels when asked to recount her traumatic experience (People vs. Ancheta, G.R. No. 142431, January 14, 2004).

3. ID.; ID.; ID.; ID.; THE POSITIVE AND DIRECT TESTIMONY OF PRIVATE COMPLAINANT IS ENTITLED TO FULL FAITH AND CREDIT IN THE ABSENCE OF IMPROPER MOTIVE OR ILL-WILL.-There is no indication that private complainant concocted her story only to maliciously implicate appellant. In the absence of a clear evidence to show that private complainant was moved by any improper motive, ill-will or that her accounts were merely fabricated or concocted, her positive and direct testimony is entitled to full faith and credit (People vs. Lachica, 382 SCRA 162).

4. ID.; ID.; ID.; ID.; THE TESTIMONY OF A MINOR GIRL VICTIM OF SEXUAL ASSAULT IS GIVEN BY COURTS GREATER WEIGHT.When a woman, more so if she is a minor says that she has been raped, she says, in effect, all that is necessary to prove that rape was committed. Courts usually give greater weight to the testimony of a girl who is a victim

Court of Appeals Reports Annotated, Vol. 39.

of sexual assault, especially a minor particularly in cases of incestuous rape, because no woman would be willing to undergo a public trial and put up with the shame, humiliation and dishonor of exposing her own degradation were it not to condemn an injustice and to have offender apprehended and punished (People vs. Dionisio Ancheta, G.R. No. 142431, January 14, 2004).

5. CIVIL LAW; DAMAGES; EXEMPLARY DAMAGES; IN THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE IN THE COMMISSION OF THE CRIME, THE CLAIM FOR EXEMPLARY DAMAGES IS BASELESS.-The Court sustains the recommendation of the Office of Solicitor General (OSG) to delete the trial court's award of exemplary damages in view of the absence of any aggravating circumstance in the commission of the crime, pursuant to Article 2230, New Civil Code which provides that exemplary damages as part of civil indemnity may be imposed when the crime was committed with one or more aggravating circumstances.

APPEAL from a judgment of the Regional Trial Court of Aparri, Cagayan, 2nd Judicial Region, Branch 8.

The facts are stated in the opinion of the Court.

Office of the Solicitor General for plaintiff-appellee.

Hermenegildo G. Rapanan for accused-appellant.

LAMPAS PERALTA, J.:

This is an appeal from the Decision dated may 2, 2000 in Criminal Cases Nos. 08940 and 08-941 of Branch 8, Regional Trial Court (RTC), Aparri, Cagayan which convicted appellant Isidro Avesilla of two (2) counts of rape committed against a

minor.

1 The case was remanded by the Supreme Court to the Court of Appeals pursuant to the ruling in People vs. Mateo, G.R. Nos. 147678-87, July 7, 2004.

The Antecedents

de

Private complainant Maidalyn Guzman, when she was about twelve (12) years old, was twice raped by appellant. The first rape occurred during the wake of appellant's daughter on December 3, 1994 and the second on October 28, 1995 at a place near appellant's house. The factual details, as summarized by the Office of the Solicitor General (OSG), are:

Around seven o'clock in the evening of December 2, 1994, private complainant Maidalyn de Guzman, then twelve (12) years old, went to the house of appellant Isidro Avesilla at Binalan, Aparri, Cagayan, to attend the wake of Avesilla's daughter, Remedios. Appellant is married to the sister of Maidalyn's paternal grandfather and a neighbor of the de Guzmans (pp. 11-12, TSN, April 21, 1999).

Around three (3) o'clock of the following morning, December 3, 1994, while Maidalyn was sleeping beside the casket of Remedios in the living room of appellant's house, Maidalyn was awakened when appellant laid beside her. Maidalyn tried to shout, but appellant suddenly covered her mouth. Appellant pulled a knife and poked it at the neck of maidalyn, then raised Maidalyn's leg and removed her "garterized" shorts and panty. While appellant and Maidalyn were lying on their sides, appellant pulled out his penis, inserted it into the vagina of Maidalyn and made "push and pull" movements. As Maidalyn was being raped, she heard Jenald, the seven-year old grandson of appellant enter the room and say "Apay ni Amang agtigtigerger metten" (why is it that grandfather was trembling) (pp. 13-14, TSN April 21, 1999). After satisfying himself with her, appellant put back the panty of Maidalyn and told her not to report the incident to his family or he would kill all her family (p. 25, Ibid). Out of fear of appellant, Maidalyn decided to keep the incident to herself.

On the night of October 28, 1995 Maidalyn was on her way to buy "cornick" at a nearby store when she was waylaid by appellant. Appellant, who was in his short and "sando", grabbed Maidalyn's hands and dragged her to the extension of the house of her grandmother which was just thirty (30) meters away from the house of appellant. Once inside a room of the house where Maidalyn was taken, appellant pulled his knife and pushed her to the floor. He grabbed Maidalyn who was lying on the floor, forcibly removed her panty and shorts. Appellant then laid on top of her, pulled out his penis inserted it into Maidalyn's vagina and made "push and pull" movements. After he was through with her, appellant told Maidalyn that he would kill her if she reported the incident to her parents (pp. 9-11, TSN June 15, 1999, p. 9 TSN, August 5, 1999). Aside from these two incidents, appellant raped Maidalyn on two separate occasions prior to October 28, 1988. However, Maidalyn cannot recall their exact dates (p. 16, TSN, June 15, 1999). On October 31, 1995 Maidalyn, who could no longer withstand the abuses she received from appellant,

050774- -2

finally found the courage to inform her mother, Imelda de Guzman, that she (Maidalyn) was being sexually abused by appellant (p. 10, TSN, ibid; p. 8, TSN, November 3, 1999).2

filed on November 18, 1996, appellant was Hence, in two separate informations both charged with rape defined and penalized under Article 335, Revised Penal Code, as amended by Section 11, of Republic Act No. 7659 (otherwise known as An Act to Impose the Death Penalty on Certain Heinous Crimes). The two (2) informations read:

Re: Criminal Case No. 11-6634

That on or about December 3, 1994, in the municipality of Appari, province of Cagayan, and within the jurisdiction of the Honorable Court, the abovename accused, armed with a knife with lewd design, by the use of force violence or intimidation, with moral ascendancy and influence upon the offended party (being his grand daughter), did then and there willfully, unlawfully and feloniously have carnal knowledge of said Maidalyn De Guzman y Urbayo, a woman, under twelve (12) years of age, all against her will and consent.

CONTRARY TO LAW.3

Re: Criminal Case No. 11-6635

That on or about October 28, 1995, in the municipality of Aparri, province of Cagayan, and within the jurisdiction of the Honorable Court, the abovename accused, with lewd design by means of force, violence or intimidation, with moral ascendancy and influence upon the offended party (being his grand daughter), did then and there willfully, unlawfully and feloniously have carnal knowledge of said Maidelyn Guzman y Urbayo, a woman under twelve (12) years of age, all against her will and consent.

CONTRARY TO LAW.4

When arraigned on April 23, 1997, appellant pleaded "not guilty" to both charges (p. 44, Record). Trial ensued wherein the parties presented their respective evidence.

In a Decision dated May 2, 2000, the trial court convicted appellant, the decretal portion of which reads:

WHEREFORE, the court hereby renders judgment finding the accused Isidro Avesilla GUILTY beyond reasonable doubt of the crime of rape in both cases for having sexually abused the private complainant

2 pp. 106-109, Rollo 3 first page, Vol, I, Record 4 first page, Vol. II, Record

Maidalyn Guzman on 03 December 1994 and on 28 October 1995 with the use of a deadly weapon (knife), and sentences him to...

1

2

suffer two (2) penalties of reclusion perpetua;

indemnify the offended party Maidalyn Guzman in the amounts of:

2.1-50,000.00 in each case or a total of 100,000.00- as moral damages;

2.3- 20,000.00 in each case or a total of 40,000.00- as exemplary damages;

3- to pay the costs of litigation.

So ORDERED.5

Hence, this appeal, anchored on the following assignment of error:6

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE WEAKNESS OF HIS DEFENSE AND NOT ON THE STRENGTH OF

THE EVIDENCE OF THE PROSECUTION.

The Issue

The assigned error deals with the basic issue of credibility, that is, whether the trial court erred in giving weight and credence to the testimonies of the prosecution witnesses.

The Court's Ruling

The appeal is bereft of merit.

Appellant argues that the prosecution failed to adduce direct, competent and convincing evidence to show his culpability for rape as the trial court based its conviction not on the strength of the prosecution evidence but only on the weakness of the defense evidence. Appellant submits that it would have been unlikely for him to have committed the first rape on December 3, 1994 during the wake of his daughter and beside the latter's coffin, as the sexual drive of a person could be contained by events such as the death of a family member.' As regards the second charge of rape on October 28, 1995, appellant contends that there was no evidence of force and intimidation employed

private complainant was sleeping about 3:00 A.M. of December 3, 1994, all the visitors were gone and she was alone near the coffin of the deceased. Appellant's bestial desire must have prevailed upon him when he satisfied his lust on the sleeping victim. Indeed, time-honored is the doctrine that lust is no respecter of time and place, and it could be committed even in unlikely places where people congregate, in parks, along roadsides, in school premises, in a house where there are other occupants, in the same room where other members of the family are also sleeping, and even in places which to many would appear unlikely or high risk venues for its commission.9

Notably, during her direct examination, private complainant candidly testified as to how appellant sexually abused her on December 3, 1994, when the first rape was committed:

Q So you were sleeping at about 3:00 o'clock in the morning and you said a while ago that you left at 7:00 o'clock in the morning, in between 3:00 o'clock to 7:00 o'clock in the morning, do you recall if there was any unusual incident that happened?