G.R. No. 204061 - Lutap vs. People

Case Summary (G.R. No. 204061)

Key Dates and Procedural Posture

Incident date: April 27, 2004. Medical examination: April 30, 2004 (initial attempt at Camp Crame on April 28, 2004 unsuccessful). RTC decision convicting petitioner of rape by sexual assault: August 23, 2010. CA Decision modifying RTC to convict for attempted rape: July 10, 2012; CA resolution denying reconsideration: October 2, 2012. Petition for review under Rule 45 filed with the Supreme Court; Supreme Court decision: February 5, 2018. Petitioner appealed from the RTC conviction; CA reduced conviction to attempted rape; petitioner sought relief before the Supreme Court.

Charged Offense and Information Allegations

The Information charged petitioner with committing acts of sexual assault on AAA on or about April 27, 2004 in Quezon City by means of force, threats and intimidation, specifically alleging insertion of his finger into the complainant’s genital organ in violation of the RPC (rape by sexual assault), and alleging that the victim was a minor (six years old).

Trial Evidence (Prosecution)

Primary witnesses: AAA (victim), BBB (younger brother), DDD (mother), and P/SUPT. Ruby Grace Sabino‑Diangson. Testimony established that petitioner frequently visited the family home; on the evening of April 27, 2004 AAA (aged six) and her siblings were watching television with petitioner nearby; AAA was wearing shorts and panty; petitioner allegedly touched AAA’s vagina with his middle finger. BBB demonstrated the act in court and testified that the middle finger touched AAA’s vagina, stating “not too much” but that the finger “reached” (umabot). AAA testified she swayed his hand off and later told her mother that petitioner had done similar acts “many times in [petitioner’s] house” and had, according to AAA, “let her go on the bed, remove her panty, open her legs and lick her vagina.” When confronted, petitioner allegedly apologized and said AAA’s panty was wet.

Trial Evidence (Defense)

Petitioner denied the allegations, testifying that he only intervened to separate quarreling children who were fighting over text cards and that BBB reacted by saying “bad yan.” Petitioner claimed he denied touching AAA and suggested examination. Character evidence for petitioner (Purok leader) asserted good reputation; mother (DDD) subject to neighborhood complaints per defense.

RTC Decision and Rationale

The Regional Trial Court (Quezon City, Branch 94) found petitioner guilty of rape by sexual assault (Article 266‑A, paragraph 2, in relation to paragraph 1 and Article 266‑B), giving full credence to the straightforward testimonies of AAA and BBB. The RTC emphasized BBB’s demonstrative testimony, including the continuous movement of his middle finger to depict the act. The RTC imposed an indeterminate penalty of six years and one day of prision mayor (minimum) to twelve years and one day of reclusion temporal (maximum), and awarded civil indemnity, moral and exemplary damages (P50,000; P50,000; P25,000, respectively).

CA Ruling and Rationale

The Court of Appeals reexamined the testimony and concluded that the evidence showed only slight touching rather than insertion of the finger into the vagina. Because penetration was not established beyond reasonable doubt, the CA held that the elements of rape by sexual assault were not satisfied and downgraded the conviction to attempted rape. The CA imposed a lighter indeterminate sentence for attempted rape and reduced the amounts of civil indemnity, moral and exemplary damages.

Issue Before the Supreme Court

Whether the CA erred in convicting petitioner of attempted rape given the absence of proof that petitioner’s sexual organ or finger had been inserted into the victim’s vagina or any part of her body, and whether, on the evidence presented, the proper conviction should be for acts of lasciviousness rather than rape or attempted rape.

Supreme Court Holding — Main Outcome

The Supreme Court partially granted the petition. It agreed with the CA that insertion of petitioner’s finger into AAA’s vagina was not proven beyond reasonable doubt and thus that consummated rape by sexual assault was not established. However, the Court held that the evidence proved criminal lewdness in the form of intentional touching of the child’s genitalia and that such an act, under the facts (victim under 12 years old and influence/relationship between adult and child), satisfied the elements of acts of lasciviousness under Article 336 of the RPC and constituted lascivious conduct under Section 5(b) of R.A. 7610. The CA’s conviction for attempted rape was therefore reversed and replaced with a conviction for acts of lasciviousness.

Legal Analysis: Distinction Between Touching, Attempted Rape and Rape by Sexual Assault

The Court reiterated controlling jurisprudence that mere touching of a female’s sexual organ, standing alone, does not equate to rape, nor necessarily to attempted rape. Rape by sexual assault (Article 266‑A(2)) requires insertion of a penis, object, or instrument into the genital or anal orifice. For assaults using fingers, jurisprudence (People v. Mendoza and People v. Campuhan) requires at least slight penetration — not mere grazing or brush of the external surface — for a conviction of rape by sexual assault. Attempted rape requires overt acts directly connected to consummation (intent to have carnal knowledge and overt acts that would, absent interruption, ripen into rape). In the instant case the evidence showed touching “not too much” and contact through clothing (panty and shorts), with the victim swaying off the hand; the overt acts did not demonstrably manifest intent to insert the finger or to have carnal knowledge. Thus, the acts did not satisfy the threshold for attempted rape.

Application of Acts of Lasciviousness and R.A. 7610

Because the offense proved (intentional touching of the child’s genitalia) is included in the offense charged, the variance doctrine (Rule 120, Sections 4 and 5) permits conviction for the lesser included offense. Article 336 of the RPC defines acts of lasciviousness and, where the offended party is under 12 years of age, establishes liability irrespective of force if the victim is below the specified age. Section 5(b) of R.A. 7610 prescribes severe penalties for sexual intercourse or lascivious conduct involving children; the rules implementing R.A. 7610 define lascivious conduct to include intentional touching, either directly or through clothing, of the genitalia. The Court found all elements of Article 336 and R.A. 7610 satisfied: a lewd act committed upon a person (AAA), the victim’s age (six), and the adult’s influence and relationship with the child.

Sentence, Indeterminate Sentence Law Application, and Damages

Because AAA was under 12, the Court followed precedent (People v. Caoili and related authorities) to impose the penalty for acts of lasciviousness in relation to Section 5 of R.A. 7610. The Court applied the Indeterminate Sentence Law: the minimum term was taken from the penalty next lower to reclusion temporal medium (i.e., reclusion temporal minimum: twelve years and one day to fourteen years, eight months) and the maximum term from the medium period of reclusion temporal (fifteen years, six months and twenty days to

Case Syllabus (G.R. No. 204061)

Nature of the Case

Petition for review on certiorari under Rule 45 seeking reversal of the Court of Appeals (CA) Decision dated July 10, 2012 and Resolution (dated in the source variously as October 2, 2012 and October 25, 2012) in CA-G.R. CR No. 33630.
Originated from an Information charging petitioner Edmisael C. Lutap with rape by sexual assault, accusatorily alleging that on or about April 27, 2004 in Quezon City, petitioner, by means of force, threats and intimidation, unlawfully inserted his finger into the genital organ of AAA, a six (6) year-old minor, contrary to law.
Case progressed through plea of not guilty, pre-trial, trial on the merits, conviction by the Regional Trial Court (RTC), modification by the CA, and review by the Supreme Court.

Parties and Role

Petitioner: Edmisael C. Lutap (also known as “Egay”).
Respondent: People of the Philippines.
Private complainant and offended party: AAA (name withheld; protected with fictitious initials).
Other witnesses for prosecution: BBB (younger brother of AAA), CCC (another sibling mentioned as present), DDD (mother of AAA), and P/Supt. Ruby Grace Sabino-Diangson.
Defense witnesses included petitioner and Melba Garcia (Purok Leader attesting to petitioner’s reputation).

Antecedent Facts as Adduced at Trial

Victim AAA was six (6) years old at the time of the alleged incident (born September 11, 1997).
Petitioner frequented AAA’s family home and was the best friend of AAA’s father.
On the evening of April 27, 2004, AAA and siblings BBB and CCC were watching television in the sala; DDD was cooking in the kitchen separated from the sala by a concrete wall.
AAA was wearing short pants and a panty and was seated on the floor with legs spread while playing with “text cards.”
Petitioner was seated on the sofa about one foot away from AAA.
BBB observed petitioner using his middle finger to touch AAA’s vagina; BBB physically demonstrated the act at trial by moving his middle finger.
AAA testified that “Tito Egay touched my vagina” and that she swayed off his hand.
BBB testified the touching was “not too much” but that the finger “umabot” (reached) and demonstrated the motion pointing to the area he called “pepets” (vagina).
DDD questioned AAA; AAA stated petitioner had “many times in [petitioner’s] house” tickled her vagina and that petitioner “let her go on the bed, remove her panty, open her legs and lick her vagina” (as reported during DDD’s account of AAA’s statements).
Upon confrontation, petitioner admitted he touched AAA because her panty was wet and apologized.
AAA was taken for medical examination to Camp Crame; due to availability the examination was done on April 30, 2004.

Defense Version and Evidence for Petitioner

Petitioner denied inserting his finger or committing the acts alleged; claimed he only pacified AAA and BBB who were quarreling over text cards and separated the children.
Petitioner suggested that AAA be examined when DDD confronted him.
Melba Garcia testified to knowing petitioner and that he enjoyed a good reputation.
Evidence and testimony were presented that DDD had been the subject of several complaints from neighbors.

RTC (Regional Trial Court) Findings and Disposition

RTC credited the candid testimonies of AAA and BBB and found that petitioner inserted his finger into AAA’s vagina.
RTC emphasized BBB’s graphic demonstration at trial of the middle finger movement as probative of insertion.
RTC convicted petitioner of rape under Article 266-A paragraph 2 in relation to Article 266-B of the Revised Penal Code, taking into consideration the aggravating circumstance that the victim was six (6) years old.
RTC imposed an indeterminate penalty of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum.
RTC ordered payment of civil indemnity of P50,000.00, moral damages of P50,000.00 and exemplary damages of P25,000.00, and costs.

Court of Appeals Ruling and Modification

The CA revisited the testimonies of AAA and BBB and concluded there was no proof of insertion; the CA found only that petitioner’s finger “merely touched” or touched without too much pressure.
Based on absence of proven penetration, the CA held that the proper conviction was for attempted rape rather than consummated rape by sexual assault.
CA modified the RTC decision and found petitioner guilty of Attempted Rape.
CA sentenced petitioner to an indeterminate imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional medium as maximum.
CA ordered indemnity of P30,000.00 (civil), P25,000.00 (moral damages), P10,000.00 (exemplary damages), and costs.
Petitioner’s motion for reconsideration before the CA was denied, prompting the present petition for review on certiorari.

Issue on Appeal to the Supreme Court

Whether the CA erred in convicting petitioner for the crime of attempted rape given the absence of clear, competent, convincing and positive evidence that petitioner inserted his finger into the victim’s vagina or that petitioner’s sexual organ had touched the victim’s vagina or any part of her body with intent to forcefully insert.

Supreme Court’s Holding (Summary)

The petition was partly granted.
The Supreme Court agreed with the CA that insertion of petitioner’s finger into AAA’s sexual organ was not established beyond reasonable dou