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56,444-0556,445-05-versus-FOR: RAPEMODESTO ANDRINO,Accused, MEMORANDUM Comes now the public prosecution and unto this Honorable Court most respectfully submitthis memorandum and state: Preparatory Statement The information charged accused for the following as the information reads as follows:CRIM CASE No. 56, 444, 05 I N F O R M A T I O N The undersigned accuses the abovenamed accused for violation of Sec. 5(b) of RepublicAct 7610, committed as follows: That on or about June 20, 2004, in the City of Davao, Philippines, and within the jurisdictionof this Honorable Court, the above-mentioned accused, willfully, unlawfully, feloniously and for aconsideration, sexually assault Reyna Jean Paran, 12 years old, by inserting his penis into thecomplainants mouth, against her will. Contrary to law. The undersigned accuses the above-named person for Violation of Sec. 5(b) of Republic Act7610, committed as follows: That on or about October 29, 2004, and many times prior thereto, in the City of Davao,Philippines, and within the jurisdiction of this Honorable Court, the abovementioned accused. For aconsideration, did then and there willfully, unlawfully and feloniously, indulge Reyna Jean Paran, 13years old, in lascivious conduct by licking and sucking her breast, thereby subjecting the saidcomplainant to sexual abuse. Contrary to law. EVIDENCE FOR THE PROSECUTION The prosecution presented (3) Three witnesses namely; 1.) Reyna Jean Paran The and Complainant (minor) 2.) Dr. Mardee Latayan and 3.) Natividad dela Cerna Paran (mother of minorcomplainant). The evidences for the prosecution were presented in a joint trial for the two (2) cases.Reyna Jean Paran the prosecutions first witness who is the complainant in all these 2 casesfor rape and for violation of sec.5(b) R.A 7610 lascivious conduct testified on July 12, 2005. Shewas 14 years old and lived in interior Boulevard near almendras gym. She is a neighbor of accusedwho she calls as uncle modi. (accused Modesto Andrino). Their house (Reyna Jeans) is fronting theaccused house and is only divided by a pathway where a motorcycle can pass. (page 6 of TSN July12,2005) Minor complaining witness Reyna Jean Paran in open Court identified accused and touchedhis Shoulder (page 6 of TSN July 12, 2005) Reyna Jean Clearly testified that in the afternoon of October 29, 2004 accused called for her and brought her to his as they will have something to talk about. It was at this juncture accusedshowed her a nude picture with a male and female engaged in sexual intercourse jer-jer (page 9,TSN July 12, 2005) Accused told her it was in payable to which complainant reacted and accused pulled her hand and had it held his penis as it was ready erecting ( page 10, TSN July n12, 2005) Complainant further testified this happened outside the house of accused where there wereno people around. Accused pulled her inside his house and sucked her breast and he removed her dress. He forced her to remove her dress and _________her bra and sucked the two breast. (page12,13, and 14 of TSN July 12, 2005) On June 20, 2004 complainant was in the house Nanay Rosa. Modi (accused was alsothere waiting and he _______ at her. Accused pulled her at the house of Nanay Rosa because itwas dark. Accused forced complainant to suck his penis just like a Lollipop. (page 17, TSN July 12,2005) Accused gave complainant (50.00 pesos) thereafter place it on her palm. ( page 18, TSNJuly 12, 2005).Second witness for the prosecution was Natividad Dela Cerna Paran who testified onSeptember 2, 2005. Natividad testified that She is The mother of complainant Reyna Jean Paranand that the accused was a neighbor. She identified the accused in open Court, (page 5,TSN Sept.2, 2005)

and (page 11, TSN June 1, 2010). He testified that his children brought him Supper and ate it atboyztrek. On November 26, 2004. When he arrived home he had supper with his family it was then hiswife Nita told her that complainant stoned their house. (page 7, TSN May 29, 2007) He denied thecharges against him. The Third witness for the defense was Daisy Mae Andrino who testified on June 1, 2010.That she was in the house in the month of October 2004 as it was a semestral break, and shebrought food to her father at boyztrek on October 29, 2004 who was rendering overtime. She further testified she had no quarrel with complainant nor with her family. DISCUSSION/S AND ARGRUMENTS From the facts and evidence presented by the prosecution, it has clearly and bluntly provedwith proof beyond reasonable doubt quiet of the accused in these two case with Criminal Case No.56,444-05 and 56,445-05 The accused has been clearly identified as the perpetrator in these cases. (page 6, TSN July12, 2005). The testimony of complainant was clear and precise that on June 20, 2004 respondentlet her suck his penis and gave her 50.00 thereafter. On October 29, 2004 respondent brought complainant to his house, undress her and suckedher two breasts. These are cases which when divulged would greatly affect the welfare and dignity of a girl, more so a minor child. Hence, The Supreme Court in its decisions ruled: Truth is established not by the number of witnesses but by the quality of their testimoniesPeople vs. Ramirez 266 SCRA 335 The complainant without hesitation and double testified what repulsive actions the accuseddid to her on June 20, 2004 and on October 29, 2004. and The accused on the other hand maintains the defense of alibi, and makes it their premisethat complainant only made up the charge due to their quarrel that occurred on November 26, 2004.That complainant was accused of stoning the house of accused which irked his wife and he himself remarked to complainant, whoever stoned their house should watch out. Thus, The start of complainants making up accusations against accused. The defense of accused is that during the incident of June 20, 2004, he was at presentbecause he went to Leyte, and presented bus tickets to prove it. This however cannot stand alone;the bus tickets presented by accused would not conclusively say that he used those tickets.Anybody can procure those tickets and accused could assume he use it. There are no other wit, bythe defense to corroborate that he really was in Leyte. The Supreme Court ruled in the case of People vs. Garma 271 SCRA 517; it is settled ruledthat alibi cannot prevail over a positive identification. Accused wife and children corroborated hisalibi that he was on Leyte on June 20, 2004, This however cannot be accepted___________ Alibi becomes less plausible as a defense when it is mainly established by the accused himself andhis immediate relatives and not by credible persons. People vs. CA 273 SCRA 328. If it were true that accused went to Leyte, there would have been numerous ways and meansto prove it other than presenting bus tickets. Had he really seen his relatives pictures would havebeen taken, relatives in Leyte would have been more than eager to testify and prove his presence inLeyte on June 20, 2004. Accused maintains his alibi with respect to the October 29, 2004 incident,That the offense charged could not have happened as he was at Boyztrek doing an overtime job. It cannot however be denied that accused testified on June 1, 2010 and admitted in opencourt that boyztrek is merely a fine (5) minute walk away from his house, which is just frontingcomplainants house, and if you are a fast walker, it is 2 minutes. ( page 11, TSN June 1, 2010)He, further reiterated that in

goin to boyztrek from his house is impractical to ride a jeepbecause its very near. ( page 15 TSN, June 1, 2010). These is no clear showing of our impossibilityfar accused to be present at the scene of the crime on October 29, 2010. It is a 5 minute walk fromwhere he was working, or 2 minutes if one is a fast walker. Well-entrenched is the doctrine that for alibi to prosper, then _____ Must prove not only (1) that he was somewhere else when the time was committed but (2) it mustlikewise be demonstrated that he was so far away that he could not have been physically present at and the place of crime or its immediate vicinity at the time of its commission. People vs. Baniel, 275SCRA 472.

Where the distance did not render it impossible for the accused to be at the scene of thecrime, the defense of alibi must preclude the possibility that the accused could have been physicallypresent at that place or its vicinity at or about the time of its commission. People vs. Castillo 273SCRA22. It must also be noted by the Honorable Court that accused gave out contradictingstatements regarding the November 26,2004 incident where Reyna Jean allegedly stoned their house. On April 12, 2010 accused testified he saw Reyna Jean stoned their house , 100% (page11,12 TSN April 12, 2010.) Accused himself contradicted himself on June 1, 2010 saying his wife merely told her thatReyna Jean stoned their house he did not see her stoned their house. ( page 6, TSN June 1, 2010). This is material and this shows that accused cannot maintain his defense that he is telling thetruth. Accused also centers on the defense that complainant only mode up these charges due to thequarrel that occurred on November 26, 2004, where she was accused of stoning their house.Defense has not presented evidence which word prove that complainant have the propensityto lie. In fact the wife of accused affirmed she had not quarrel with complainant and her family.(page 33 TSN September 6, 2006) Affirmed by Donna Mae Andrino in her testimony dated June 1, 2010,( page 25, 26, TSN June 1, 2010.) Accused himself affirmed had no quarrel with complainant and her family, that they havegood relations, (page 15, TSN June 1, 2010) It can however be gleaned from these facts that theNovember 26, 2004 incident was the last hitch where complainant had the quits to reveal the abusedone to her by the accused whom she calls uncle modi. The victim in this case is a minor, girl. Aperson who can be swayed by moral _______ of whom accused uncle modi had over the child. Thisfact we cannot deny. The charges in these cases involved the fact that complainant was violated and reduced to asexual tool. This is shameful. This is hurtful. This incidents were testified too by complainant in a and clear and straight forward manner. A witness who testifies in a categorical, straight forward, spontaneous and frank manner andremains consistent is a credible witness.People vs. Salvame 270 SCRA 766. PRAYER Wherefore in view of the foregoing it is most respectfully prayed of the Honorable Court thatthe accused be found guilty as charged in criminal Case no.56, 444-05 and in criminal case no. 56,445-05 Respectfully submitted. September 28, 2010 Davao City, Philippines, Gaye T. Canete-MagdagasangProsecutorn 11Davao City, Philippines( MCLE Compliance 11 -0017233 (MCLECompliance 111-0002750 Copt Furnished: Atty. Efren Donaire2 nd

level BoyztrekBolton St; Davao City