SECOND DIVISION

[G.R. No. 138033. February 22, 2006.]

RENATO BALEROS, JR., petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

GARCIA, J : p

In this petition for review on certiorari, petitioner Renato Baleros, Jr.

assails and seeks the reversal of the January 13, 1999 decision 1 of the Court
of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999
resolution 2 denying petitioner's motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial
Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding
petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape. 3
The accusatory portion of the information 4 dated December 17, 1991
charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13
December 1991 in Manila and within the jurisdiction of this Honorable
Court, the above-named accused, by forcefully covering the face of
Martina Lourdes T. Albano with a piece of cloth soaked in chemical with
dizzying effects, did then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top of her with the
intention to have carnal knowledge with her but was unable to perform
all the acts of execution by reason of some cause or accident other
than his own spontaneous desistance, said acts being committed
against her will and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel,

pleaded "Not Guilty." 5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses.
Among them were private complainant Martina Lourdes Albano (Malou), and
her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan
and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter
"Building", . . .) along A.H. Lacson Street, Sampaloc, Manila, MALOU,
occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a
medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at
around 10:30. Outside, right in front of her bedroom door, her maid,
Marvilou, slept on a folding bed. IcHEaA

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 Early morning of the following day, MALOU was awakened by the
smell of chemical on a piece of cloth pressed on her face. She
struggled but could not move. Somebody was pinning her down on the
bed, holding her tightly. She wanted to scream for help but the hands
covering her mouth with cloth wet with chemicals were very tight (TSN,
July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by
kicking him until at last her right hand got free. With this . . . the
opportunity presented itself when she was able to grab hold of his sex
organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom
door and roused Marvilou. . . . . Over the intercom, MALOU told S/G
Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" ( Ibid., p.
8). Who it was she did not, however, know. The only thing she had
made out during their struggle was the feel of her attacker's clothes
and weight. His upper garment was of cotton material while that at the
lower portion felt smooth and satin-like ( Ibid, p. 17). He . . . was
wearing a t-shirt and shorts . . . Original Records, p. 355).
To Room 310 of the Building where her classmates Christian
Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were
staying, MALOU then proceeded to seek help. . . . .

It was then when MALOU saw her bed . . . topsy-turvy. Her

nightdress was stained with blue . . . (TSN, July 5, 1993, pp. 13-14).
Aside from the window with grills which she had originally left opened,
another window inside her bedroom was now open. Her attacker had
fled from her room going through the left bedroom window (Ibid,
Answers to Question number 5; Id), the one without iron grills which
leads to Room 306 of the Building (TSN, July 5, 1993, p. 6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was
her classmate . . ., was friendly until a week prior to the attack. CHITO
confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN,
July 5, 1993, p. 22) and she rejected him. . . . . (TSN, July 5, 1993, p.
22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO

arrived at the Building at 1:30 in the early morning of December 13,
1991, wearing a white t-shirt with "'. . . a marking on the front of the T-
shirt T M and a Greek letter (sic) SF' and below the quoted letters the
word '1946' 'UST Medicine and Surgery'" (TSN, October 9, 1992, p. 9)
and black shorts with the brand name "Adidas" (TSN, October 16,
1992, p. 7) and requested permission to go up to Room 306. This Unit
was being leased by Ansbert Co and at that time when CHITO was
asking permission to enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization
and when CHITO could not, S/G Ferolin initially refused [but later,
relented] . . . . S/G Ferolin made the following entry in the security
guard's logbook . . . .:

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has

not have (sic) a Request letter from our tenant of Unit #-306
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 Ansbert, but still I let him inter (sic) for the reason that he will be
our tenant this coming summer break as he said so I let him sign
it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13,

1991 was corroborated by Joseph Bernard Africa (Joseph), . . . .

xxx xxx xxx

Joseph was already inside Room 306 at 9 o'clock in the evening

of December 12, 1991. . . . by the time CHITO's knocking on the door
woke him up, . . . . He was able to fix the time of CHITO's arrival at 1:30
A.M. because he glanced at the alarm clock beside the bed when he
was awakened by the knock at the door . . . . TEHIaD

Joseph noticed that CHITO was wearing dark-colored shorts and

white T-shirt ( Ibid., p. 23) when he let the latter in. . . . . It was at
around 3 o'clock in the morning of December 13, 1991 when he woke
up again later to the sound of knocking at the door, this time, by
Bernard Baptista (Bernard), . . . .
. . . . With Bernard, Joseph then went to MALOU's room and
thereat was shown by Bernard the open window through which the
intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991,

Joseph was finally able to talk to CHITO . . . . He mentioned to the latter
that something had happened and that they were not being allowed to
get out of the building. Joseph also told CHITO to follow him to Room
310.
CHITO did just that. He followed after Joseph to Unit 310, carrying
his gray bag. . . . . None was in Room 310 so Joseph went to their yet
another classmate, Renato Alagadan at Room 401 to see if the others
were there. . . . .

People from the CIS came by before 8 o'clock that same morning
. . . . They likewise invited CHITO and Joseph to go with them to Camp
Crame where the two (2) were questioned . . . .
An occupant of Room 310 . . . Christian Alcala (Christian) recalled
in Court that in the afternoon of December 13, 1991, after their 3:30
class, he and his roommates, Bernard Baptista and Lutgardo Acosta
(Gary) were called to the Building and were asked by the CIS people to
look for anything not belonging to them in their Unit. While they were
outside Room 310 talking with the authorities, Rommel Montes
(Loyloy), another roommate of his, went inside to search the Unit.
Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag
cloth type ( Ibid, pp. 44-45) from inside their unit which they did not
know was there and surrender the same to the investigators. When he
saw the gray bag, Christian knew right away that it belonged to CHITO
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 (Ibid, p. 55) as he had seen the latter usually bringing it to school inside
the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its
contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi
sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief, three (3)
white T-shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short

pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITO's
because CHITO had lent the very same one to him . . . . The t-shirt with
CHITO's fraternity symbol, CHITO used to wear on weekends, and the
handkerchief he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of
December 13, 1991, was what consisted mainly of Renato R.
Alagadan's testimony.
xxx xxx xxx

The colored gray bag had a handle and a strap, was elongated to
about 11/4 feet and appeared to be full but was closed with a zipper
when Renato saw it then ( Ibid, pp. 19-20). At that time Christian, Gary,
Bernard, and Renato went back to Room 310 at around 3 to 4 o'clock
that afternoon along with some CIS agents, they saw the bag at the
same place inside the bedroom where Renato had seen CHITO leave it.
Not until later that night at past 9 o'clock in Camp Crame, however, did
Renato know what the contents of the bag were.
xxx xxx xxx
The forensic Chemist, Leslie Chambers, of the Philippine National
Police Crime Laboratory in Camp Crame, having acted in response to
the written request of PNP Superintendent Lucas M. Managuelod dated
December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted
laboratory examination on the specimen collated and submitted. . . .
Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in
part, thus:

"SPECIMEN SUBMITTED:
xxx xxx xxx
1) One (1) small white plastic bag marked 'UNIMART' with the
following:
xxx xxx xxx

Exh 'C' — One (1) night dress colored salmon pink. EDATSI

2) One (1) small white plastic bag marked 'JONAS' with the
following:
Exh. 'D' — One (1) printed handkerchief.
Exh. 'E' — One (1) white T-shirt marked 'TMZI'.

Exh. 'F' — One (1) black short (sic) marked 'ADIDAS'.

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 PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile
and/or metallic poison on the above stated specimens.

FINDINGS:
Toxicological examination conducted on the above stated
specimens gave the following results:
Exhs. 'C' and 'D' — POSITIVE to the test for chloroform, a
volatile poison.
Exhs. 'A', 'B', 'E' and 'F' are insufficient for further analysis.
CONCLUSION:

Exhs. 'C' and 'D' contain chloroform, a volatile poison." 6

(Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner
himself. He denied committing the crime imputed to him or making at any
time amorous advances on Malou. Unfolding a different version of the
incident, the defense sought to establish the following, as culled from the
same decision of the appellate court:
In December of 1991, CHITO was a medical student of . . . (UST).
With Robert Chan and Alberto Leonardo, he was likewise a member of
the Tau Sigma Phi Fraternity . . . . MALOU, . . ., was known to him being
also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building . . ., CHITO,
wearing the prescribed barong tagalog over dark pants and leather
shoes, arrived at their Fraternity house located at . . . Dos Castillas,
Sampaloc, Manila at about 7 o'clock in the evening of December 12,
1991. He was included in the entourage of some fifty (50) fraternity
members scheduled for a Christmas gathering at the house of their
senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North
Greenhills, San Juan. . . . .
The party was conducted at the garden beside [the] swimming
pool . . . . Soon after, . . . the four (4) presidential nominees of the
Fraternity, CHITO included, were being dunked one by one into the
pool. . . . .

. . . CHITO had anticipated his turn . . . and was thus wearing his
t-shirt and long pants when he was dunked. Perla Duran, . . ., offered
each . . . dry clothes to change into and CHITO put on the white t-shirt
with the Fraternity's symbol and a pair of black shorts with stripes. . . . .
Again riding on Alberto's car and wearing "barong tagalog over a
white t-shirt with the symbol TAU Sigma Phi, black short pants with
stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the
party with Robert Chan and Alberto at more or less past 1 A.M. of
December 13, 1991 and proceeded to the Building which they reached
at about 1:30 A.M. ( Ibid., p. 19). He had left his gray traveling bag
containing "white t-shirt, sando, underwear, socks, and toothbrush
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 (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day . . . .

At the gate of the Building, CHITO knocked and . . ., S/G Ferolin,

looking at his watch, approached. Because of this, CHITO also looked at
his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin
initially refused CHITO entry . . . .
S/G Ferolin called Unit 306 . . . . When S/G Ferolin finally let him
in, already about ten (10) minutes had lapsed since CHITO first arrived
(Ibid., p. 25). cDTCIA

CHITO went up the floor, found the key left for him by Joseph
behind the opened jalousie window and for five (5) minutes vainly tried
to open the door until Rommel Montes, . . . approached him and even
commented: "Okey ang suot mo ha, di mo mabuksan ang pinto ( Ibid.,
pp. 26-29). Rommel tried to open the door of Unit 306 . . . but was
likewise unsuccessful. CHITO then decided to just call out to Joseph
while knocking at the door.
It took another (5) minutes of calling out and knocking before
Joseph, . . ., at last answered the door. Telling him, "Ikaw na ang bahala
diyan" Joseph immediately turned his back on CHITO and went inside
the bedroom. CHITO, . . . changed to a thinner shirt and went to bed.
He still had on the same short pants given by Perla Duran from the
fraternity party (TSN, June 16, 1994, p. 20).
At 6 o'clock in the morning of December 13, 1991, CHITO woke
up . . . . He was already in his school uniform when, around 6:30 A.M,
Joseph came to the room not yet dressed up. He asked the latter why
this was so and, without elaborating on it, Joseph told him that
something had happened and to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody,
whom MALOU was not able to identify, went to the room of MALOU and
tried to rape her (TSN, April 25, 1994, p. 36). . . . .
Joseph told him that the security guard was not letting anybody
out of the Building . . . . When two (2) CIS men came to the unit asking
for Renato Baleros, CHITO presented himself. Congressman Rodolfo B.
Albano, father of MALOU, then asked him for the key to Room 306. . . .
xxx xxx xxx

The CIS men looked inside the bedroom and on the windows.
Joseph was told to dress up and the two (2) of them, CHITO and Joseph,
were brought to Camp Crame.
When they arrived at Camp Crame . . ., Col. Managuelod asked
Joseph inside his room and talked to him for 30 minutes. . . . . No one
interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who
later instructed them to undergo physical examination at the Camp
Crame Hospital . . . . . At the hospital, . . . CHITO and Joseph were
physically examined by a certain Dr. de Guzman who told them to strip
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 ....

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black
striped short pants lent to him by Perla Duran (Exhibit "8-A", Original
Records, p. 345), inside Room 310 at more/less 6:30 to 7 o'clock in the
morning of December 13, 1991. The next time that he saw it was
between 8 to 9 P.M. when he and Joseph were brought before Fiscal
Abesamis for inquest. One of the CIS agents had taken it there and it
was not opened up in his presence but the contents of the bag were
already laid out on the table of Fiscal Abesamis who, however, made no
effort to ask CHITO if the items thereat were his.
The black Adidas short pants purportedly found in the bag,
CHITO denied putting in his gray bag which he had left at Room 306 in
the early evening of December 12, 1991 before going to the fraternity
house. He likewise disavowed placing said black Adidas short pants in
his gray bag when he returned to the apartment at past 1:00 o'clock in
the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24),
nor when he dressed up at about 6 o'clock in the morning to go to
school and brought his gray bag to Room 310 ( Ibid. 25). In fact, at any
time on December 13, 1991, he was not aware that his gray bag ever
contained any black short Adidas pants ( Ibid). He only found out for the
first time that the black Adidas short pants was alluded to be among
the items inside his gray bag late in the afternoon, when he was in
Camp Crame. CaASIc

Also taking the witness stand for the defense were petitioner's
fraternity brothers, Alberto Leonardo and Robert Chan, who both testified
being with CHITO in the December 12, 1991 party held in Dr. Duran's place
at Greenhills, riding on the same car going to and coming from the party and
dropping the petitioner off the Celestial Marie building after the party. Both
were one in saying that CHITO was wearing a barong tagalog, with t-shirt
inside, with short pants and leather shoes at the time they parted after the
party. 7 Rommel Montes, a tenant of Room 310 of the said building, also
testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December
13, 1991 trying to open the door of Room 306 while clad in dark short pants
and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the
pair of short pants with stripes after the dunking party held in her father's
house. 8 Presented as defense expert witness was Carmelita Vargas, a
forensic chemistry instructor whose actual demonstration in open court
showed that chloroform, being volatile, evaporates in thirty (30) seconds
without tearing nor staining the cloth on which it is applied. 9
On December 14, 1994, the trial court rendered its decision 10
convicting petitioner of attempted rape and accordingly sentencing him,
thus:
WHEREFORE, under cool reflection and prescinding from the
foregoing, the Court finds the accused Renato D. Baleros, Jr., alias
"Chito", guilty beyond reasonable doubt of the crime of attempted rape
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 as principal and as charged in the information and hereby sentences
him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2)
MONTHS AND ONE (1) DAY of Prision Correccional, as Minimum to TEN
(10) YEARS of Prision Mayor as Maximum, with all the accessory
penalties provided by law, and for the accused to pay the offended
party Martina Lourdes T. Albano, the sum of P50,000.00 by way of
Moral and exemplary damages, plus reasonable Attorney's fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and
to pay the costs.
SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse

was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated
January 13, 1999, affirmed the trial court's judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from
the findings of the court a quo, the decision appealed from is hereby
AFFIRMED in toto. Costs against appellant.
SO ORDERED. 11

Petitioner moved for reconsideration, but his motion was denied by the
CA in its equally assailed resolution of March 31, 1999. 12
Petitioner is now with this Court, on the contention that the CA erred —
1. In not finding that it is improbable for petitioner to have
committed the attempted rape imputed to him, absent sufficient,
competent and convincing evidence to prove the offense
charged.
2. In convicting petitioner of attempted rape on the basis merely of
circumstantial evidence since the prosecution failed to satisfy all
the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the
petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his
case.
5. In awarding damages in favor of the complainant despite the fact
that the award was improper and unjustified absent any evidence
to prove the same. SAEHaC

6. In failing to appreciate in his favor the constitutional presumption

of innocence and that moral certainty has not been met, hence,
he should be acquitted on the ground that the offense charged
against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on
whether or not the CA erred in affirming the ruling of the RTC finding
petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of
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 applicable jurisprudence, the Court is disposed to rule for petitioner's
acquittal, but not necessarily because there is no direct evidence pointing to
him as the intruder holding a chemical-soaked cloth who pinned Malou down
on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not
per se to that of being an eyewitness to the very act of commission of the
crime. There are two types of positive identification. A witness may identify a
suspect or accused as the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence. There may,
however, be instances where, although a witness may not have actually
witnessed the very act of commission of a crime, he may still be able to
positively identify a suspect or accused as the perpetrator of a crime as
when, for instance, the latter is the person or one of the persons last seen
with the victim immediately before and right after the commission of the
crime. This is the second type of positive identification, which forms part of
circumstantial evidence. 13 In the absence of direct evidence, the
prosecution may resort to adducing circumstantial evidence to discharge its
burden. Crimes are usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted under all
circumstances, the prosecution of vicious felons who committed heinous
crimes in secret or secluded places will be hard, if not well-nigh impossible,
to prove. 14
Section 4 of Rule 133 of the Rules of Court provides the conditions
when circumstantial evidence may be sufficient for conviction. The provision
reads:
Sec. 4. Circumstantial evidence, when sufficient —
Circumstantial evidence is sufficient for conviction if —
a) There is more than one circumstance;
b) The facts from which the inferences are derived are
proven; and
c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.

In the present case, the positive identification of the petitioner forms

part of circumstantial evidence, which, when taken together with the other
pieces of evidence constituting an unbroken chain, leads to only fair and
reasonable conclusion, which is that petitioner was the intruder in
question.
We quote with approval the CA's finding of the circumstantial evidence
that led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place.
He had access to the room of MALOU as Room 307 where he slept the
night over had a window which allowed ingress and egress to Room
306 where MALOU stayed. Not only the Building security guard, S/G
Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was
wearing a black "Adidas" shorts and fraternity T-shirt when he arrived
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 at the Building/Unit 307 at 1:30 in the morning of December 13, 1991.
Though it was dark during their struggle, MALOU had made out the feel
of her intruder's apparel to be something made of cotton material on
top and shorts that felt satin-smooth on the bottom.
From CHITO's bag which was found inside Room 310 at the very
spot where witness Renato Alagadan saw CHITO leave it, were
discovered the most incriminating evidence: the handkerchief stained
with blue and wet with some kind of chemicals; a black "Adidas" satin
short pants; and a white fraternity T-shirt, also stained with blue. A
different witness, this time, Christian Alcala, identified these garments
as belonging to CHITO. As it turned out, laboratory examination on
these items and on the beddings and clothes worn by MALOU during
the incident revealed that the handkerchief and MALOU's night dress
both contained chloroform, a volatile poison which causes first degree
burn exactly like what MALOU sustained on that part of her face where
the chemical-soaked cloth had been pressed. CSIcHA

This brings the Court to the issue on whether the evidence adduced by
the prosecution has established beyond reasonable doubt the guilt of the
petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on
Malou's face the piece of cloth soaked in chemical while holding her body
tightly under the weight of his own, had commenced the performance of an
act indicative of an intent or attempt to rape the victim. It is argued that
petitioner's actuation thus described is an overt act contemplated under the
law, for there can not be any other logical conclusion other than that the
petitioner intended to ravish Malou after he attempted to put her to an
induced sleep. The Solicitor General, echoing what the CA said, adds that if
petitioner's intention was otherwise, he would not have lain on top of the
victim. 15
Under Article 335 of the Revised Penal Code, rape is committed by a
man who has carnal knowledge or intercourse with a woman under any of
the following circumstances: (1) By using force or intimidation; (2) When the
woman is deprived of reason or otherwise unconscious; and (3) When the
woman is under twelve years of age or is demented. Under Article 6, in
relation to the aforementioned article of the same code, rape is attempted
when the offender commences the commission of rape directly by overt acts
and does not perform all the acts of execution which should produce the
crime of rape by reason of some cause or accident other than his own
spontaneous desistance. 16
Expounding on the nature of an attempted felony, the Court, speaking
thru Justice Claro M. Recto in People vs. Lamahang, 17 stated that "the
attempt which the Penal Code punishes is that which has a logical
connection to a particular, concrete offense; that which is the beginning of
the execution of the offense by overt acts of the perpetrator, leading directly
to its realization and consummation." Absent the unavoidable connection,
like the logical and natural relation of the cause and its effect, as where the
purpose of the offender in performing an act is not certain, meaning the
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 nature of the act in relation to its objective is ambiguous, then what obtains
is an attempt to commit an indeterminate offense, which is not a juridical
fact from the standpoint of the Penal Code. 18
There is absolutely no dispute about the absence of sexual intercourse
or carnal knowledge in the present case. The next question that thus comes
to the fore is whether or not the act of the petitioner, i.e., the pressing of a
chemical-soaked cloth while on top of Malou, constitutes an overt act of
rape. CSTEHI

Overt or external act has been defined as some physical activity or

deed, indicating the intention to commit a particular crime, more than a
mere planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by external
obstacles nor by the voluntary desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense. 19
Harmonizing the above definition to the facts of this case, it would be
too strained to construe petitioner's act of pressing a chemical-soaked cloth
in the mouth of Malou which would induce her to sleep as an overt act that
will logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or
attempt to rape Malou. It cannot be overemphasized that petitioner was fully
clothed and that there was no attempt on his part to undress Malou, let
alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is
anybody's guess. The CA maintained that if the petitioner had no intention to
rape, he would not have lain on top of the complainant. Plodding on, the
appellate court even anticipated the next step that the petitioner would have
taken if the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim,
will have to come later. His sexual organ is not yet exposed because
his intended victim is still struggling. Where the intended victim is an
educated woman already mature in age, it is very unlikely that a rapist
would be in his naked glory before even starting his attack on her. He
has to make her lose her guard first, or as in this case, her
unconsciousness. 20

At bottom then, the appellate court indulges in plain speculation, a

practice disfavored under the rule on evidence in criminal cases. For, mere
speculations and probabilities cannot substitute for proof required to
establish the guilt of an accused beyond reasonable doubt. 21
In Perez vs. Court of Appeals, 22 the Court acquitted therein petitioner
of the crime of attempted rape, pointing out that:
. . . . In the crime of rape, penetration is an essential act of
execution to produce the felony. Thus, for there to be an attempted
rape, the accused must have commenced the act of penetrating his
sexual organ to the vagina of the victim but for some cause or accident
other than his own spontaneous desistance, the penetration, however,
slight, is not completed.
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 xxx xxx xxx

Petitioner's act of lying on top of the complainant, embracing and

kissing her, mashing her breasts, inserting his hand inside her panty
and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing
that petitioner actually commenced to force his penis into the
complainant's sexual organ. . . . .

Likewise in People vs. Pancho, 23 the Court held:

. . ., appellant was merely holding complainant's feet when his
Tito Onio arrived at the alleged locus criminis. Thus, it would be
stretching to the extreme our credulity if we were to conclude that
mere holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is

innocent, under the premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an allegation that he forcefully
covered the face of Malou with a piece of cloth soaked in chemical. And
during the trial, Malou testified about the pressing against her face of the
chemical-soaked cloth and having struggled after petitioner held her tightly
and pinned her down. Verily, while the series of acts committed by the
petitioner do not determine attempted rape, as earlier discussed, they
constitute unjust vexation punishable as light coercion under the second
paragraph of Article 287 of the Revised Penal Code. In the context of the
constitutional provision assuring an accused of a crime the right to be
informed of the nature and cause of the accusation, 24 it cannot be said that
petitioner was kept in the dark of the inculpatory acts for which he was
proceeded against. To be sure, the information against petitioner contains
sufficient details to enable him to make his defense. As aptly observed by
then Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in an information for unjust vexation. As it were, unjust vexation
exists even without the element of restraint or compulsion for the reason
that this term is broad enough to include any human conduct which,
although not productive of some physical or material harm, would unjustly
annoy or irritate an innocent person. 25 The paramount question is whether
the offender's act causes annoyance, irritation, torment, distress or
disturbance to the mind of the person to whom it is directed. 26 That Malou,
after the incident in question, cried while relating to her classmates what she
perceived to be a sexual attack and the fact that she filed a case for
attempted rape proved beyond cavil that she was disturbed, if not distressed
by the acts of petitioner. SEHTIc

The penalty for coercion falling under the second paragraph of Article
287 of the Revised Penal Code is arresto menor or a fine ranging from P5.00
to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming
that of the Regional Trial Court of Manila, is hereby REVERSED and SET
ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr.
of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of
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 light coercion and is accordingly sentenced to 30 days of arresto menor and
to pay a fine of P200.00, with the accessory penalties thereof and to pay the
costs.
SO ORDERED.
Puno, Sandoval-Gutierrez and Azcuna, JJ., concur.
Corona, J., is on leave.

Footnotes
1. Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by
Associate Justices Romeo A. Brawner (ret.) and Eloy R. Bello, Jr. (ret.); Rollo ,
pp. 198-237.

2. Id., p. 273.
3. Id., pp. 120-155.
4. Original Records, pp. 1-3.
5. Id., p. 42.
6. Rollo , pp. 201-212.
7. TSN, December 15, 1993, pp. 18-19; TSN, December 20, 1993, pp. 23-24.
8. TSN, January 17, 1994, pp. 7-10.

9. TSN, January 17, 1994, p. 24.

10. Rollo , pp. 120-155.

11. See Note #1, supra.

12. See Note #2, supra.

13. People vs. Cubcubin, Jr., 413 Phil. 249 (2001), citing People vs. Gallarde,
382 Phil. 718 (2000).

14. People vs. Sevileno, 425 SCRA 247 (2004), citing People vs. Navarro, 407
SCRA 221 (2003).
15. Comment, pp. 20-21; Rollo , pp. 302-303.

16. People vs. Campuhan, 385 Phil. 912 (2000).

17. 61 Phil. 703, 705 (1935).

18. Ibid.
19. Reyes, The Revised Penal Code, 1998 Edition, p. 91.
20. Rollo , pp. 222-223.
21. People vs. Canlas, et al., 423 Phil. 665 (2001).
22. 431 Phil. 786 (2002).
23. 416 SCRA 506 (2003).
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 24. Sec. 14(2), Art. III.

25. Aquino, Revised Penal Code, 1997 ed., Vol. III, p. 81.
26. Ibid., citing People vs. Lilian Gozum, CA 54 O.G. 7409; People vs. Reyes , 60
Phil. 369 [1934].

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