G.R. No. 267093, May 29, 2024,

♦ Decision,

Lazaro-Javier, [J]

♦ Concurring and Dissenting Opinion,

M. Lopez, [J]

SECOND DIVISION

[ G.R. No. 267093, May 29, 2024 ]

MARK ANTHONY ROMERO Y FLORES, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

CONCURRING AND DISSENTING OPINION

LOPEZ, M.,

J.:

"In order to determine whether two offenses constitute a complex crime, we should not find out whether, in accordance with their definition by law, one of them is as an essential element of the other . . . for in such cases there would be only one single offense . . . But we should take into consideration the facts alleged in [the] complaint or information and determine whether one of the two separate and different offenses charged [in it] was committed as a necessary means to commit the other offense; if it were the two offenses constitute one complex crime[.]"

This case raised the main issue as to what crime petitioner committed. For reference, petitioner was charged with kidnapping with rape under the following information, to wit:

That between the hours of 7:00 o'clock (sic) in the evening of July 24, 2019 until on or about 3:00 o'clock (sic) in the morning of July 25, 2019 at ████████████████

and within the jurisdiction of this Honorable Court, the accused MARK ANTHONY ROMERO y FLORES, with intent to deprive the 16-year[-]old minor complainant AAA

of her liberty, conniving and confederating with an unidentified male person (JOHN DOE) who was driving a tricycle with sidecar where AAA and MARK ANTHONY ROMERO were seated, then and there willfully, unlawfully[,] and feloniously covered the mouth of AAA with a foul-smelling handkerchief which caused her to lose consciousness, while JOHN DOE continued to drive the tricycle towards the direction of ██████████████, where they brought AAA, who was unconscious and with lewd designs, had carnal knowledge of her against her will and without her consent to her damage and prejudice.

That the crime was committed with the aggravating circumstance the accused MARK ANTHONY ROMERO y FLORES is a recidivist, having been previously convicted by final judgment of the crime of Slight Illegal Detention under paragraph 3 of Article 268, which is embraced in the same title of the Revised Penal Code.

The Regional Trial Court (RTC) convicted petitioner of the

"Special Complex Crime of Kidnapping with Rape."

However, the Court of Appeals (CA) modified the RTC's judgment and found petitioner liable for

"Forcible Abduction"

absent intent to deprive the victim of her liberty and proof of rape. Whereas the

ponencia

held that petitioner committed

"Rape"

based on circumstantial evidence showing that his main intention is to have carnal knowledge of the victim, and that rape absorbs forcible abduction. To recall, the

ponencia

enumerated five circumstances:

(1) On July 24, 2019, [AAA] boarded a yellow tricycle which Romero was riding. The same was driven by Romero's unknown companion.

(2) Instead of dropping off [AAA] at her house, the tricycle driver sped off upon reaching the corner of the street leading to her house, while Romero covered her mouth and nose with a foul-smelling handkerchief.

(3) [AAA] got dizzy, felt weak, and lost her consciousness.

(4) When she woke up, it was already 3:00 a.m. of the next day. She was lying on a bamboo bench inside a cottage, fully naked, and her private part was aching.

(5) When examined by Dr. Lizaso-Dy, the latter's findings show that [AAA] suffered hymenal lacerations at 3 and 9 o'clock positions and had erythema or redness in her vestibule, which indicated that an object was inserted in her vagina.

The

ponencia

concluded that

"[w]hile the elements of forcible abduction were also established and rape was committed on the occasion thereof, jurisprudence clarifies that forcible abduction is absorbed in the crime of rape when the main objective of the abductor is to have carnal knowledge of the victim,"

Comparing

Bohos, Velasquez

, and

Amaro

with

Pingol

and

Domingo

, it is apparent that the complex crime of forcible abduction with rape is present only where forcible abduction is committed per se,

i.e.

, the victim was deprived of her liberty with lewd intentions, which is manifested by the fact of the actual rape. To recall, in

Bohos, Velasquez,

and

Amaro

, the victims therein were clearly detained by the accused and were prevented from leaving even after rape was already consummated. Where, however, the victim was forcibly taken by the accused only for the purpose of consummating rape like in

Pingol

and

Domingo

, then the proper offense committed is simply rape,

as here

From the totality of the facts on record, it is apparent that Romero and his companion knocked down [AAA] not to detain her elsewhere but to ensure that he could have his way with her. In fact, after they accomplished their goal of ravishing her, they left her alone in the cottage because they had already accomplished their goal. They even left her clothes, cellphone, and belongings with her. More telling, the cottage remained unlocked and she was free to return home, which she in fact did, after she woke up. To be sure, the facts and evidence on record are bereft of any other apparent motivation which would have impelled Romero and his companion to forcibly bring [AAA] to the cottage.

Clearly, having carnal knowledge of [AAA] appears to be their main objective. Verily, the crime of forcible abduction must be considered absorbed into the crime of rape.

Foremost, I share the view that petitioner cannot be convicted of the special complex crime of kidnapping with rape absent indubitable proof of his intent to deprive the victim of her liberty. I also concur that the information sufficiently charged petitioner with the crimes of forcible abduction and rape notwithstanding the caption of the accusation.

(awÞhi(

There is forcible abduction when: (1) the person abducted is any woman, regardless of her age, civil status, or reputation; (2) she is taken against her will; and (3) the abduction is with lewd designs.

Meanwhile, rape is committed by having carnal knowledge of a woman by force, threat, or intimidation, or when the woman is deprived of reason or is unconscious, or by means of fraudulent machination or grave abuse of authority, or when she is below the statutory age.

The actual recital of facts in the information determines the real nature and character of the criminal charge and not the caption, technical name, and provision of law alleged to have been violated.

Thus, there is no violation of the accused's constitutional right to be fully apprised of the charge and to suitably prepare a defense. More importantly, I agree that the enumerated circumstances are sufficient to establish both the crimes of forcible abduction and rape. Admittedly, the

ponencia

discussed how these crimes were perpetrated.

Contrary to the

ponencia

, I believe that petitioner is liable for the complex crime of forcible abduction with rape. The hard facts reveal that forcible abduction was a necessary means to commit rape.

Under Article 48 of the Revised Penal Code (RPC), a complex crime occurs not only when a single act constitutes two or more grave or less grave felonies, but also when an offense is a necessary means for committing the other. The words "necessary means" do not connote indispensability. Otherwise, one component crime becomes an element or ingredient of the other. The phrase merely signifies that one component crime facilitated and ensured the commission of the other.

Forcible abduction is, in general, not an essential element of rape which may be committed anywhere without the necessity of forcibly taking the victim to another place for that purpose.

But if the offense charged is that the accused abducted or carried by force the victim from one place to another where she was raped, the crime charged would be a complex crime of forcible abduction with rape—the abduction being in such a case a necessary means to commit the rape.

In the following cases, the Court convicted the accused of the complex crime of forcible abduction with rape.

People v. Manguiat,

two men brought the woman victim to an uninhabited place, then to the woods, and later to other places where she was brutally raped by means of threats and intimidation.

People v. Pineda

three men abducted the woman victim from her house to another place within the same municipality where they successively raped her through force and intimidation.

People v. Babasa

three men poked a knife at the woman victim on board a tricycle that traversed a spillway until they reached the airport at nighttime. One of the accused inserted his hand under the victim's shirt and touched her nipples. Upon reaching the next town, the three men forced the victim out of the tricycle, undressed her, and took turns in raping her.

The Court ruled that forcible abduction was used as a means of committing the rapes in an isolated place under the cover of night.

People v. Bulaong

the accused pointed a gun at the woman victim and forced her to board his jeepney. The accused forced the victim to enter a hotel room and threatened to kill her if she would escape. The accused removed the clothes of the victim and succeeded in having sexual congress with her.

People v. Paras

the Court expounded that there could be no doubt that the purpose of taking the woman victim to a hotel was to satisfy the accused's lust on her. It is not denied that the accused performed the sexual act on the victim twice. The taking of the victim could not be for any purpose other than his lascivious design to savor her womanhood.

People v. Vega

a vehicle carrying six men blocked the taxi boarded by the woman victim. The men dragged the victim inside their car, kissed her, and touched the different parts of her body. The men took the victim to an isolated place in the vicinity of a factory and started to remove her clothes. However, a watchman blew his whistle and the men transferred to another factory where they had carnal knowledge of the victim.

People v. Alcantara

the Court reiterated that since forcible abduction was used as a means of committing the two rapes, the offenses constitute the complex crime of forcible abduction with rape.

People v. Sunpongco

three men forcibly abducted the woman victim and brought her from Bulacan to Tagaytay. The men poked a gun at the victim and brought her inside a hotel room where they embraced and kissed her. The victim resisted but the men consummated sexual intercourse with her.

The Court explained that the presence of the lewd design is manifested by the subsequent rape that occurred.

People v. Lutañez

the accused entered a house and spotted the woman victim from among the people inside. The accused threatened the victim with a gun tucked in his waist and brought her to a deserted hut about a half kilometer away. The accused undressed the victim and had sexual intercourse with her.

In People v. Alburo,

the accused took the woman victim against her will with lewd designs when he threatened her with a knife if she would disembark his jeepney. The accused forced the victim to submit to his lust and pushed her head against the steering wheel which rendered her unconscious. The victim regained her senses, found herself without undergarment, felt pain in her stomach, and saw blood on her vagina.

In People v. Grefiel,

the accused pretended to be a "mayor ng sundalo" to abduct the woman victim and carry out his lewd designs by performing coitus with her.

Forcible abduction was the necessary means used to commit the rape.

People v. Corpuz

the woman victim was forcibly taken at gunpoint by the accused with the use of a motorized tricycle to a secluded place. The accused used continuous threats, ordered the victim to sit down with her legs spread on the motorcycle's seat, and then and there succeeded in unleashing his bestial lust.

The Court ruled that forcible abduction was the means to commit the crime of rape. Rape was committed when the accused had carnal knowledge of the offended party through intimidation.

People v. Espiritu

the woman victim while waiting for a ride home was abducted by the accused and one unidentified person on board a tricycle. The victim was blindfolded and brought to a house. The driver went home leaving the accused and the victim. The accused removed the blindfold of the victim and he repeatedly slapped and bit her. The accused then sexually abused the victim.

The Court ruled that when the accused forcibly took away the victim, for the purpose of raping her, as in fact he did rape her, lewd and unchaste designs existed since the commencement of the crime. Consequently, when the accused raped the victim, he committed the complex crime of forcible abduction with rape.

People v. Sapurco

the sexual intercourse with the woman victim was facilitated and ensured by her abduction. The presence of lewd intentions was also apparent from the conduct of the accused when he later defiled the victim.

People v. Delovino

while the woman victim was waiting for a ride to school, the accused placed his hand on her shoulder and poked a knife, which was covered with a handkerchief. The accused threatened to kill the victim if she would shout for help or run away. The victim was then brought against her will to a motel.

The Court ruled that abduction was only a means to commit the rape.

People v. Ablaneda

the six-year-old woman victim was walking to school. Along the way, the accused approached the victim and asked if he could share her umbrella because it was raining. Suddenly, the accused boarded a tri-mobile with the victim and brought her to a small hut. While inside, the accused removed his underwear and the victim's panties. The accused proceeded to have sexual intercourse with the victim.

The Court held that the accused committed the complex crime of forcible abduction with rape where the evidence shows that the taking of the young victim against her will was effected in furtherance of lewd and unchaste design. The lewd design in forcible abduction is established by the actual rape of the victim.

Similar rulings were rendered in

People v. Padilla,

People v. Calubag

People v. Angeles

People v. Corpuz

People v. Aczon

People v. Magpayo

People v. Matamorosa,

People v. Rivera

People v. Bantisil

People v. Lo-ar,

People v. De Lara

People v. Talo

People v. Capistrano

People v. Amaro

and

People v. Gutierrez

On the other hand, the following cases present situations where rape absorbs forcible abduction. In

People v. Godines

the woman victim tried to escape from the house where the accused caused a commotion. The accused saw the victim, dragged her to a nearby vacant lot while they fondled her private parts, and threatened her if she resisted their sexual advances. The accused then took turns in satisfying their carnal desires.

In that case, there is no evidence that the taking of the victim was a necessary means to commit the crime of rape.

People v. San Pedro

the accused made several attempts to befriend the woman victim, but she consistently snubbed him. The accused decided that drastic measures were needed realizing that a romantic relationship with the victim was a distant dream. The accused then abducted the victim at the point of a knife and raped her.

The Court held that the crime committed is rape which absorbs forcible abduction because the accused intended at the very outset to rape the victim when he abducted her.

People v. Mejorada

the woman victim was sleeping together with the daughter of the accused. At night, the accused forcibly opened the door which awakened the victim. Suddenly, the accused hugged the victim and pressed a knife on her face. The accused brought the victim to the back of the house where he raped her.

The Court ruled that the accused cannot be convicted of the complex crime of forcible abduction with rape because the element of lewd designs was not alleged. In any event, it appears that the accused's real intention was to rape the victim in her room. But since the daughter of the accused was in the same room, he decided to forcibly drag the victim instead to the rear of the house. The incidental forcible abduction was absorbed in the crime of rape.

People v. Sabredo

the Court likewise refused to convict the accused of the complex crime of forcible abduction with rape because the element of lewd designs was not alleged. The crime alleged and proved was only rape.

People v. Akhtar

and

People v. Rapisora

the victims were raped multiple times. As such, there is clear evidence that the main objective of the accused is to commit rape given the sheer number of sexual violations perpetrated against the victim.

Clearly, the crime is rape only when forcible abduction is not a necessary means to commit sexual intercourse against the victim, or when forcible abduction is merely incidental or preparatory to the crime of rape.

There are other cases reiterating the principle that forcible abduction is absorbed if the initial or principal intent of the accused is to rape the victim. Yet, these cases lacked elaboration except for the generic statement that the real objective of the accused is to commit rape when they abducted the victims such as in

People v. Napud, Jr.,

People v. Almanzor

People v. Muros,

Garces v. People

People v. Talan,

People v. Sabadlab,

People v. Cayanan,

People v. Domingo

People v. Villanueva

and

People v. Pingol

Also, there are rulings to the effect that the main purpose of the accused is to commit rape given the number of sexual violations perpetrated against the victim.

However, these strings of jurisprudence must be revisited to avoid indiscriminate application of the criminal law theory on the absorption of crimes.

To be sure, the number of rapes committed will not automatically result in the absorption of forcible abduction. Case law is explicit that a complex crime of forcible abduction with rape may exist although there are multiple rapes. It is settled that the crime of forcible abduction was only necessary for the first rape. Any subsequent acts of intercourse should be treated as separate acts of rape independent from the complex crime of forcible abduction with rape. This is the thrust of the Court's decisions in

People v. Gabisay, Jr.,

People v. Caraang

People v. Garcia

People v. Velasquez

People v. Julian

People v. Fortich

People v. Tami

People v. Bacalso

People v. Copro

People v. Bohos

100

and

People v. Jose.

101

Applying these precepts, the blanket statements in the

ponencia

that the main intent of the petitioner is to have carnal knowledge of the victim, and that

"forcible abduction was only an inevitable result of rendering [the victim] unconscious, the means chosen . . . to ensure the consummation of rape"

102

are purely speculative and have no factual basis. It is likewise inaccurate to conclude that forcible abduction is deemed absorbed if the principal intent of the accused is to rape the victim or if multiple rapes were committed. As discussed above, forcible abduction is not an inherent element or an indispensable means of rape. A different stance will remove forcible abduction with rape from our criminal law books through mere invocation of the accused's intention to rape the victim. Notably, in the complex crime of forcible abduction with rape, the

actus reus

and

mens rea

of both component crimes must be present. The proper test to ascertain if the accused should be liable for a complex crime is whether forcible abduction is a

"necessary means"

to commit rape, and not based merely on the intention of the accused.

On this point, the courts must examine carefully the relationship between forcible abduction and rape, anchored on the surrounding circumstances, to determine what crime the accused committed.

Here, there is nothing from the circumstantial evidence which would suggest that the forcible abduction is purely incidental or preparatory in the commission of rape, or that it is not a necessary means to commit the sexual violation.

Rather, it is evident that the accused forcibly abducted the victim from the plaza and brought her to a cottage beside the river where they perpetrated their lecherous act.

The forcible abduction facilitated and ensured the commission of rape.

Verily, the component crimes must be complexed following Article 48 of the RPC. Corollary, it is not required to show on the face of an information for a complex crime of forcible abduction with rape the manner how one offense is a

"necessary means"

to commit the other, as that is a matter of evidence at the trial. What matters is that the information alleged the elements of both component crimes. As a rule, matters of evidence, as distinguished from facts essential to the description of the offense, need not be averred. Moreover, reasonable certainty in the statement of the crime suffices. All that is required is that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed and will enable them to intelligently prepare a defense, and if found guilty to plead their conviction, in a subsequent prosecution for the same offense.

103

FOR THESE REASONS,

I vote to

DENY

the petition. Petitioner should be held liable for the complex crime of forcible abduction with rape.

Footnotes

Parulan v. Rodas

, 78 Phil. 855, 856-857 (1947) [Per J. Feria, En Banc].

Supreme Court Amended Administrative Circular No. 83-2015 states that the geographical location where the crime was committed should refer only to the province where the crime occurred. References to the specific barangay or town should be blotted out from the body of the court decision if its identification could lead to the disclosure of the women or children victims.

The identity of the victim or any information which could establish or compromise their identity, and those of their immediate family or household members, shall be withheld pursuant to Republic Act No. 7610 (1992), An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes; Republic Act No. 9262 (2004), An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes; and Section 40 of A.M. No. 04-10-11-SC (2004), Rule on Violence Against Women and Their Children.

Ponencia, p. 10.

Id.

at 12.

Id.

at 14.

REV. PEN. CODE art. 342.

REV. PEN. CODE art. 266-A, as amended by Republic Act No. 8353.

People v. Escosio

, 292-A Phil. 606, 620 (1993) [Per J. Padilla, Second Division], citing

People v. Mendoza

, 256 Phil. 1136, 1144 (1989) [Per J. Fernan, Third Division].

People v. Salvilla

, 263 Phil. 621, 631-632 (1990) [Per J. Melencio-Herrera, Second Division].

Parulan v. Rodas

, 78 Phil. 855, 857 (1947) [Per J. Feria, En Banc].

51 Phil. 406 (1928) [Per J. Malcolm, En Banc].

Id.

at 407.

56 Phil. 688 (1932) [Per J. Ostrand, En Banc].

Id.

at 688.

186 Phil. 458 (1980) [Per Curiam, En Banc].

Id.

at 459-460.

Id.

at 467.

193 Phil. 515 (1981) [Per J. Aquino, En Banc].

Id.

at 519.

206 Phil. 704 (1983) [Per J. Vasquez, First Division].

Id.

at 711.

208 Phil. 221 (1983) [Per J. Relova, First Division].

Id.

at 222-223.

211 Phil. 579 (1983) [Per J. Melencio-Herrera, First Division].

Id.

at 593.

246 Phil. 228 (1988) [Per J. Cortes, Third Division].

Id.

at 232-233.

Id.

at 240.

270 Phil. 706 (1990) [Per J. Padilla, Second Division].

Id.

at 709.

263 Phil. 604 (1990) [Per J. Melencio-Herrera, Second Division].

Id.

at 608.

290 Phil. 77 (1992) [Per J. Davide, Jr., Third Division].

Id.

at 82.

Id.

at 93.

294 Phil. 868 (1993) [Per J. Davide, Jr., Third Division].

Id.

at 872.

Id.

at 885.

375 Phil. 1012 (1999) [Per J. Pardo, First Division].

Id.

at 1015-1016.

Id.

at 1020.

315 Phil. 561 (1995) [Per J. Bellosillo, First Division].

Id.

at 569-570.

317 Phil. 741 (1995) [Per J. Davide, Jr., First Division].

Id.

at 745-747.

Id.

at 754.

409 Phil. 552 (2001) [Per J. Ynares-Santiago, First Division].

Id.

at 554-555.

Id.

at 557.

217 Phil. 663 (1984) [Per J. Abad Santos, Second Division].

225 Phil. 323 (1986) [Per J. Cuevas, Second Division].

294 Phil. 428 (1993) [Per J. Feliciano, Third Division].

294 Phil. 868 (1993) [Per J. Davide, Jr., Third Division].

296-A Phil. 224 (1993) [Per J. Nocon, Second Division].

297 Phil. 13 (1993) [Per J. Bidin, Third Division].

301 Phil. 517 (1994) [Per J. Kapunan, First Division].

315 Phil. 454 (1995) [Per J. Vitug, Third Division].

319 Phil. 486 (1995) [Per J. Davide, Jr., First Division].

345 Phil. 429 (1997) [Per J. Kapunan, First Division].

389 Phil. 756 (2000) [Per J. Mendoza, Second Division].

398 Phil. 187 (2000) [Per J. Mendoza, En Banc].

409 Phil. 552 (2001) [Per J. Ynares-Santiago, First Division].

739 Phil. 170 (2014) [Per J. Perez, Second Division].

G.R. No. 200335, September 10, 2014 [Notice, Third Division].

274 Phil. 173 (1991) [Per J. Gancayco, First Division].

Id.

at 175-176.

Id.

at 181.

291-A Phil. 419 (1993) [Per J. Cruz, First Division].

Id.

at 419.

Id.

at 423.

296 Phil. 748 (1993) [Per J. Davide, Jr., First Division].

Id.

at 754-755.

Id.

at 767.

387 Phil. 682 (2000) [Per J. Quisumbing, En Banc].

Id.

at 691.

368 Phil. 206 (1999) [Per J. Quisumbing, En Banc].

403 Phil. 194 (2001) [Per J. Vitug, En Banc].

Id.

at 206-207.

418 Phil. 268 (2001) [Per J. Quisumbing, Second Division].

433 Phil. 667 (2002) [Per J. Kapunan, En Banc].

467 Phil. 474 (2004) [Per J. Carpio Morales, Third Division].

554 Phil. 683 (2007) [Per J. Ynares-Santiago, Third Division].

591 Phil. 812 (2008) [Per J. Carpio, First Division].

684 Phil. 269 (2012) [Per J. Bersamin, First Division].

718 Phil. 168 (2013) [Per J. Reyes, First Division].

810 Phil. 1040 (2017) [Per J. Bersamin, Third Division].

847 Phil. 179 (2019) [Per J. Del Castillo, First Division].

889 Phil. 116 (2020) [Per J. Leonen, Third Division].

G.R. No. 256301, March 1, 2023 [Per J. J. Lopez, Second Division].

463 Phil. 715 (2003) [Per J. Panganiban, First Division].

428 Phil. 312 (2002) [Per Curiam, En Banc].

399 Phil. 506 (2000) [Per J. Gonzaga-Reyes, Third Division].

337 Phil. 411 (1997) [Per J. Panganiban, Third Division].

346 Phil. 596 (1997) [Per J. Romero, Third Division].

313 Phil. 665 (1995) [Per J. Kapunan, First Division].

285 Phil. 679 (1992) [Per J. Medialdea, First Division].

211 Phil. 558 (1983) [Per J. Relova, First Division].

100

187 Phil. 228 (1980) [Per Curiam, En Banc].

101

147 Phil. 406 (1971) [Per Curiam, First Division].

102

Ponencia, p. 14.

103

Balitaan v. CFI Batangas

, 201 Phil. 311, 323 (1982) [Per J. Guerrero, Second Division].

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