Republic of the Philippines

COURT OF APPEALS
Cagayan de Oro City

PEOPLE OF THE PHILIPPINES CA-G.R. CR. No. HC-03220-

- Plaintiff-Appellee MIN
(RTC, Branch 15, Zamboanga
- versus - City)
(RTC Case No. 30946-30947)
ERICSON ROJAS y ATILANO
- Accused-Appellant. Re: RAPE
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x

APPELLANT’S BRIEF

COMES NOW Appellant, ERICSON ROJAS y ATILANO,

through counsel, unto this Honorable Court of Appeals, most respectfully
submits his Appellant’s, and hereby avers that:

Table of Contents

Headings Page/s
Statement of Case 2
Assailed Judgment 2-3
Propriety of Appeal 3
Statement of Facts 3
Assignment of Errors 4
Discussions and Arguments 4-10
Prayer 10
Verification and Certification 11

Citation of Laws and Cases

Laws Page/s
Rule 41, Rules of Court 3
Rule 44, Rules of Court 3
Republic Act No. 8353 2, 3, 4 & 9
Article 22, Revised Penal Code 9
Article 4, Civil Code of the Philippines 9
Section 2(g), 10-1993 Rules and Regulations on the 4
Reporting and Investigation of Child Abuse Cases (R.A.
7610)
Article 266-A of the Revised Penal Code 9
Jurisprudence
Frivaldo v. COMELEC and Lee, G.R. No. 120295, June 9
28, 1996
Monroy v. People, G.R. No. 235799, July 29, 2019 5
Rodan A. Bangayan v. People of the Philippines, G.R. No. 5
235610, September 16, 2020
Santos v. Alvarez, 44 O.G. 4259 9

Statement of Case

1. RTC Cases Nos. 30946 and 30947 are cases for alleged commission
of statutory rape filed by Private Complainants RIZA VIDAL y
ESTORCO (minor), assisted by her mother, GERMELYN VIDAL y
ESTORCO, before the Regional Trial Court, Branch 15, Zamboanga
City, exercising original jurisdiction thereon in decreeing that herein
Accused is guilty thereof beyond reasonable doubt;

2. Documentary evidences submitted by the Prosecution include among

others the sworn affidavits of aforenamed Private Complainants,
police and medical records, and witnesses who testified were the same
Private Complainants and Dr. Ma. Fatima C. Concepcion who
examined the minor victim;

3. On the other hand, the defense panel also submitted the sworn
affidavits of herein Accused and his lone witness, Reymark Mendozo,
who both testified before the said court;

Assailed Judgment

4. On August 15, 2022, the court a quo rendered its Judgment for the
aforesaid cases, which fallo part reads:

“WHEREFORE, premises considered, judgment is

hereby rendered as follows:

1) Finding Accused Ericson Rojas y Atilano

GUILTY BEYOND REASONABLE DOUBT in
Criminal Case No. 30946 for RAPE under
Article 266-A paragraph 1(a) of the Revised
Penal Code, as amended by Republic Act No.
8353 known as the ‘Anti-Rape Law of 1997’. He
is hereby SENTENCED to suffer the penalty of
RECLUSION PERPETUA without eligibility of
parole. Further, thcce Accused is ordered to pay
the minor victim the amount of seventy-five
thousand pesos (PhP75,000.00) as exemplary
damages by way of example to protect the young
from sexual abuse. All awards of damages shall
 earn a legal interest of SIX PERCENT (6%) after
finality of judgment until fully paid. All with no
cost.

2) Finding accused Ericson Rojas y Atilano

ACQUITTED in Criminal Case No. 30947 for
RAPE under Article 266-A paragraph 1(a) of the
Revised Penal Code, as amended by Republic
Act No. 8353 known as the ‘Anti-Rape Law of
1997’ for failure of the prosecution to establish
the guilt beyond reasonable doubt.

SO ORDERED.”

Propriety of Appeal

5. Filing of the instant appeal is in accordance with Rule 41, in relation

with Rule 44 of the Rules of Court, purposely to raise questions of
fact and law to reverse aforequoted ruling of the trial court;

Statement of Facts

6. Tersely put, conviction of herein Accused in Criminal Case No. 30946

was the court’s conclusions of him having carnal knowledge with the
minor victim committed through force and intimidation by threatening
to kill with a knife her mother and brother on the night of October 26,
2014 at a bushy and muddy area surrounded by banana trees
somewhere in San Roque, Zamboanga City, even leaving behind her
panties at the scene after commission of the alleged crime;

7. Notably, no evidence on these significant assertions were presented by

the Prosecution confirming to a certain degree that indeed such sexual
intercourse may have occurred through submission of the underwear
admittedly left at the scene, and wanting even in such assertion of
force and intimidation, in the absence of even describing the
brandished knife used by the Accused to allegedly kill victim’s mother
and brother, and not even against herself to credibly become more
threatening;

8. Be it then said that these ineptness in proving the alleged crime may
even be construed that carnal knowledge was consensual when
committed by herein Accused and the alleged victim, as sweethearts;
thus, negating the assailed judgment of conviction through the instant
appeal;
 Assignment of Errors

I. WHETHER OR NOT HEREIN

APPELLANT MAY BE CONVICTED OF
RAPE UNDER REPUBLIC ACT NO. 8353,
OTHERWISE KNOWN AS THE “ANTI-
RAPE LAW OF 1997”; and,

II. WHETHER OR NOT HEREIN

APPELLANT INCURS CRIMINAL
LIABILITY FOR ALLEGED ACT OF
STATUTORY RAPE;

Discussions and Arguments

WHETHER OR NOT HEREIN

APPELLANT MAY BE CONVICTED
OF RAPE UNDER REPUBLIC ACT NO.
8353, OTHERWISE KNOWN AS THE
“ANTI-RAPE LAW OF 1997”.

9. Under Republic Act No. 8353, the concurring requisites in the

commission of statutory rape are: (1) the accused commits the act of
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, whether male or female is below eighteen (18) years
of age;1

10. Sexual abuse alleged in the commission of rape in the instant case
must necessarily concede to the implementing rules and regulations of
Republic Act No. 7610, defining sexual abuse as inclusive of the
employment, use, persuasion, inducement, enticement or coercion of a
child to engage in, or assist another person to engage in, sexual
intercourse or lascivious conduct or the molestation, prostitution or
incest with children;2

11. However, it is said that sexual abuse is qualified under Section 5(b)
of R.A. 7610 when the victim is under twelve (12) years of age—i.e.
the perpetrator shall be prosecuted under the Revised Penal Code
regardless of the presence of any of the circumstances enumerated and
consent of victim under 12 years of age. Oddly, the law is mute where
a child is between 12 years old and below 18 years of age, and
engages in sexual intercourse not for money, profit, or any other
consideration, or due to the coercion or influence of any adult,
syndicate or group;
1
In relation with Section 5, RA 7610
2
Section 2(g), 10-1993 Rules and Regulations on the Reporting and Investigation of Child Abuse Cases
(R.A. 7610)
 12. Thus, the Supreme Court in Rodan A. Bangayan v. People of the
Philippines3 concluded that Section 5(b) of R.A. 7610 leave room for
a child between 12 and 17 years of age to give consent to sexual act;
hence, any individual who engages in sexual intercourse with a child,
at least 12 and under 18 years of age, and not falling under any of
these circumstances, cannot be held liable under the said Act. It
further clarified in the said case that consent of the child is material
and may even be a defense in criminal cases4 involving violation of
Section 5, Article III of R.A. No. 7610, when the offender is 12
years old or below 18, or above 18 under special circumstances;

13. Such consent is implied from the failure to prove that the alleged
victim engaged in sexual intercourse either “due for money, profit or
any other consideration, or due to the coercion or influence of any
adult, syndicate or group”;

14. Assuming arguendo that minor victim in the instant case was coerced
or intimidated when she was sexually abused by herein Appellant on
October 26, 2014, at or about 6:30 o’clock in the evening, it is quite
uncommon that she, under her defiled condition, would still leave her
house thirty (30) minutes later purposely to meet with the same
violator and their common friend, as they dined together with no
incident of rebuking her assailant for the gruesome sexual assault
freshly committed;

15. It may even be presupposed that when minor victim claims that the
sexual assault commenced at or about 6:30 o’clock in the evening,
even without a struggle, would no longer have the time to go home
and rendezvous again with her assailant at 7:00 o’clock that same
night; thus, such abject claim is too incredulous;

16. Defense witness, Raymark Mendozo, testified on May 16, 2022, in

this manner, viz:

“ARP Cadavedo (on direct examination)

Q: Mr. Witness, on October 26, 2014, where were you

residing?
A: I was residing in San Roque, Sir.

Q: Where in particular in San Roque?

A: In Talungon, Sunrise Field.

Q: Do you know the person of Ericson Rojas y Atilano?

A: Yes.

3
G.R. No. 235610, September 16, 2020
4
Monroy v. People, G.R. No. 235799, July 29, 2019
Q: Why do you know this person?
A: Because he is a friend of mine.

Q: Can you tell this Honorable Court where was this

Ericson residing on the said date, October 26, 2014?
A: There in San Roque, somewhere uphill.

Q: How far is the house of Ericson Rojas from your

house?
A: Around 15 meters.

Q: So, their house is in the upper portion from your

house?
A: Yes, Sir.

Q: Do you a person in the (name) of Riza Vidal y

Estorco?
A: Yes, Sir. She is our neighbor.

Q: How far is her house from your house?

A: Just five (5) meters.

Q: Okay. In 7:00 o’clock in the evening of October 26,

2014, where were you?
A: I was there in the place where we used to standby, the
three (3) of us together.

Q: You said “three (3) of us”, who were together with

you?
A: Riza and Ericson.

Q: You said that you went on a place to standby, in

relation to your residence, how far is this place where
you standby?
A: Just near our house, around 10 meters.

Q: What were the three (3) of you doing in that said

place?
A: We were just talking there about their relationship,
about the two (2) of them.

Q: You said “relationship”, what is this relationship you

were talking about?
A: It’s the relationship between the two (2) of them.

Q: Like sweethearts or boyfriend and girlfriend?

A: Yes, Sir.
Q: For how many minutes were the three (3) of you in
that place where you standby?
A: It took at least two (2) hours, Sir.
Q: After that, what did you do later on?
A: I went home; I asked permission from them to go
home to eat.

Q: What time, more or less, did you go home?

A: Around 7:00 or 8:00 PM.

Q: Now, after eating, what happened?

A: I went back there, Sir.

Q: You went back where, in the place where you

standby?
A: Yes, Sir.

Q: And what happened thereat when you went back?

A: Nothing. They just invited me to go to the Eagle to
eat tempura street foods.

Q: What is this Eagle you mention?

A: It’s (a) place in Cabatangan, Sir.

Q: And thereat, what happened?

A: Nothing, we just ate street foods there, then after how
many minutes, we went home.

Q: You went home? By walking?

A: Yes, by walking.

Q: Were you able to reach your house?

A: Yes, Sir.
Q: How about Riza?
A: Yes, Riza and I were together.

Q: How about Ericson?

A: He went to the other direction because he lives in the
upper portion. So, me and Riza went together.

Q: Now, when you arrived at your house, what did you

hear?
A: I heard that she was scolded by her mother because
it’s already late at night and she is still outside.

Q: How far is your house to the house of Riza?

A: Just five (5) meters.

Q: So, from this distance, you were able to hear those

you made mention a while ago?
A: Yes, Sir.
 Q: Do you know the mother of Riza?
A: Yes, Sir. The mother of Riza and my uncle are live-in
partners.

Q: Tell the name of the mother.

A: Germelyn.”

17. Aforequoted testimony is so material to prove the improbability of

rape because, if it happened, the minor victim could have easily
related her ordeal on that same night, it being a horrendous incident
that requires immediate attention from said witness who may naturally
defend her because he is her cousin, as a nephew of her father;

18. As it happened, the night of October 26, 2014, was a common get-
together amongst friends that turned bad by an infuriated mother when
her minor daughter came home late that night;

19. Such discordant finding of fact can easily be gleaned also from the
refuted ruling of the court a quo, transcribed hereunder:

“(On page 3, paragraph 3— court’s finding of fact drawn

from the testimony of minor victim)

‘The following day (i.e. October 27, 2014), she revealed the
incident to her mother. The former proceeded to the
Barangay, to the police authorities and to the hospital. She
recalled that when she was examined at the hospital, the
doctor mentioned the word fresh in relation to her findings.’

(Note: Date entries in all police and medical records are all
in November, and not October 27, 2014.)

(On page 3, paragraph 6—court’s finding of fact drawn

from the testimony of Germalyn Vidal y Estorco)

‘The following day (i.e. October 27, 2014), the witness

tried to inquire about what transpired to her, but the minor
victim refused to respond and her eyes were just wide open.
She decided not to proceed to her classes too.

On November 1, 2014, the minor victim revealed that she

was raped on two separate occasions but she does not know
the perpetrator’s name and can only recognize his face. She
told the witness that she was forced on both occasions.’

20. Clearly, the accusation of rape is fabricated by both witnesses,

particularly for the mother who understandably tried to vindicate her
daughter who consented as a girlfriend to having sexual intercourse
with his boyfriend, herein Appellant;
WHETHER OR NOT HEREIN
APPELLANT INCURS CRIMINAL
LIABILITY FOR ALLEGED ACT OF
STATUTORY RAPE.

21. Article 22 of the Revised Penal Code provides:

“ARTICLE 22. Retroactive Effect of Penal Laws. — Penal

laws shall have a retroactive effect in so far as they favor the
person guilty of a felony, who is not a habitual criminal, as this
term is defined in rule 5 of article 62 of this Code, although at
the time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same.”

22. Likewise, in general, laws should be prospective, not retroactive.

However, the exceptions are:

a. If the laws themselves provide for their retroactivity (Article 4,

Civil Code of the Philippines);
b. If the laws are remedial in nature;
c. If the statute is penal in nature, provided:
i. It is favorable to the accused or convict;
ii. The accused or convict is not a habitual delinquent, as
defined in Article 22 of the Revised Penal Code;
d. If the laws are of an emergency nature and are authorized by the
police power of the government. (Santos v. Alvarez, 44 O.G.
4259);
e. If the law is curative (necessarily retroactive for the precise
purpose to cure errors or irregularities). This kind of law, to be
valid, must not impair vested rights nor affect final judgments.
(Frivaldo v. COMELEC and Lee, G.R. No. 120295, June 28,
1996).

23. Having been prosecuted, and finally convicted, for violating Article
266-A of the Revised Penal Code, herein Appellant now invokes
Republic Act No. 11648 enacted on March 4, 2022, which amended
Article 266-A (1) (d) of Act No. 3815, the Revised Penal Code, as
amended by Republic Act No. 8353 known as “The Anti-Rape Law of
1997”, and thus reads, as follows:

"Article 266-A. Rape; When and How Committed. - Rape is

committed:

"1) By a person who shall have carnal knowledge of another

person under any of the following circumstances:

"x x x"
 d) When the offended party is under sixteen (16) years of
age or is demented, even though none of the circumstances
mentioned above be present: Provided, That there shall be no
criminal liability on the part of a person having carnal
knowledge of another person sixteen (16) years of age when
the age difference between the parties is not more than three
(3) years, and the sexual act in question is proven to be
consensual, non-abusive, and non-exploitative:  Provided,
further,  That if the victim is under thirteen (13) years of age,
this exception shall not apply.

"As used in this Act, non-abusive shall mean the absence of

undue influence, intimidation, fraudulent machinations,
coercion, threat, physical, sexual, psychological, or mental
injury or maltreatment, either with intention or through
neglect, during the conduct of sexual activities with the child
victim. On the other hand, non-exploitative shall mean there is
no actual or attempted act or acts of unfairly taking advantage
of the child's position of vulnerability, differential power, or
trust during the conduct of sexual activities.” (Underlining
supplied, for emphasis)”

24. Therefore, with the minor victim in the instant case being fifteen (15)
years old when she consented having carnal knowledge with herein
Appellant, such consensual sexual act produces no criminal liability
against the latter, under the aforequoted provision in Republic Act No.
11648;

Prayer

WHEREFORE, premises considered, herein Appellant, through

counsel, most respectfully prays that the instant Appeal be GRANTED to
reverse the finding of guilt rendered by the trial court, thereby decreeing that
he bears no criminal liability to the charges leveled against him, and to grant
other relief and remedies that are just and equitable under the circumstances.

Zamboanga City for Cagayan de Oro City, Philippines, March 27,

2023.

ERICSON ROJAS y ATILANO

Appellant
 Assisted by:

Atty. ABELARDO A. CLIMACO, JR.

Counsel for Accused-Appellant
4 Floor, JV Building, San Jose Panigayan Street
th

Zamboanga City
PTR No. 2344507/January 3, 2022/Z.C.
IBP No. 171244/Dec. 22, 2021/Z.C.
Roll No. 24050 / March 11, 1972

Copy furnished:

The Solicitor General

OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street, Legaspi Village
Makati City 1229, Philippines

The Presiding Judge

REGIONAL TRIAL COURT, Branch 15
Hall of Justice, Pettit Barracks, Zamboanga City

ARP Eva Aireen N. Monteza-Cadavedo

Public Prosecutor, CPO, Zamboanga City

Riza E. Vidal / Germelyn E. Vidal

Private Complainants
Cabatangan Urban Poor, Sunrise Field
Barangay Cabatangan, Zamboanga City