Republic of the Philippines

National Capital Judicial Region

REGIONAL TRIAL COURT
Makati City, Metro Manila
Branch 58

PEOPLE OF THE PHILIPPINES,

Plaintiff

-versus- Criminal Case No. R-MKT 20-01097-CR

For: Simple Theft

Roy Agustin Alos, Lorenzo Alos, Jr.,

Joel Villena and Gina Osorio,

Accused

x-----------------------x

TRIAL MEMORANDUM
(For the ACCUSED)

ACCUSED (Roy Agustin Alos, Lorenzo Alos, Jr., Joel Villena and Gina
Osorio) through counsel respectfully submit their Memorandum to sho that they are
not criminally liable for the crime of Simple Theft as alleged in the Information.

STATEMENT OF THE CASE

This is a case for Simple Theft filed against ACCUSED (Roy Agustin Alos,
Lorenzo Alos, Jr., Joel Villena and Gina Osorio). The basis for this charge is by
virtue of the Complaint-Affidavit filed by Delfin Hernando/ Ink Bright Trading he
filed in 2019.
 PROCEDURAL FACTS

Accused, after preliminary investigation, is charged with Simple Theft under Art. 308
of the Revised Penal Code in an information that read as follows:

During the period from October 2-17 to February 2019, in the city of Makati, the
Philippines, accused, conspiring and confederating with one another, with intent to gain but without
violence against or intimidation of persons nor force upon things, did then and there, willfully,
unlawfully and feloniously take, steal and carry away re-manufactured and empty ink cartridges with
a total value of Php3,000,000.00 belonging to complainant Ink Bright Trading (Inkbright), without
the latter’s knowledge and consent.

CONTRARY TO LAW

On March 10, 2020, finding probable cause for the charge based on the
affidavits of Welsam Denolan and Sherylou S. Hernando, the court issued a warrant
for the arrest of the four (4) accused so they could be brought to court and face trial.

Accused Roy Alos, Lorenzo Alos, Jr., Joel Villena and Gina Osorio were
arrested pursuant to the Alias Warrant of Arrest issued by the Court on July 13, 2020
by the WSU, personnel led by PEMS Eusebio Lowaton, Jr., together with PCMS
Ronaldo Robles, PSSG Honorio Marmonejo Jr., and PSSG Jeffrey Paloma, and said
accused were detained at SIDMS Custodial Facility Unit, Makati City Police Station,
Makati City.

On November 6, 2020, Atty. Gleim Brean U. Eran, counsel for the accused,
filed an urgent motion for reduction of bail bond. The same motion was granted on
November 11, 2020. And the four (4) accused were released from their detention on
November 16, 2020.

On December 3, 2020, the accused were arraigned and entered their plea of
NOT GUILTY through videoconference hearing. Pre-trial and pre-marking of
Exhibits proceeded on December 15, 2020 and January 26, 2021. The stage was set
for the trial and presentation of evidence. February 11, 18, 25 and March 4, 2021 were
set for the prosecution to present its evidence. It listed witnesess Welsam Denolan,
Joseph Archibald N. Roa, Desiderio S. Marin, Delfin L. Hernando and Sherylou S.
Hernando.

Initial presentation of evidence was held on April 28, 2021. Welsam Denolan,
through his Judicial Affidavit (examined by Atty. Bernardo C. Cabidoy) made his
testimony through videoconference hearing. The same witness was cross-examined by
Atty. Gleim Brean U. Eran.

On June 30, 2021, Desiderio S. Marin (examined by Atty. Bernardo C.

Cabidoy) made his testimony through videoconference hearing. The same witness was
cross-examined by Atty. Gleim Brean U. Eran on October 20, 2021.

On November 25, 2021, Delfin L. Hernando, (examined by Atty. Bernardo C.

Cabidoy) made his testimony through videoconference hearing. The same witness was
cross-examined by Atty. Gleim Brean U. Eran.

On February 9, 2022, the last day for the presentation of prosecution’s

evidence, Sherylou S. Hernando, (examined by Atty. Bernardo C. Cabidoy) made her
testimony in open court. The same witness was cross-examined by Atty. Gleim Brean
U. Eran.

The prosecution formally offered its Exhibits on February 16, 2022. The
Honorable Court issued an order dated March 3, 2022. The same order was received
by the defense counsel/law firm on March 10, 2022 via electronic mail.

The prosecution formally offered the following Exhibits:

- Exhibit “A” (Picture of the stolen boxes of cartridges);

- Exhibit “B” (Copy of the Logbook Report of Security Guard Joseph

Archibald N. Roa);

- Exhibit “C” (Observation Report dated February 15, 2019)

- Exhibit “D” (Still Picture of Lorenzo Alos, Jr. taken from the CCTV of
PHILDAF Building);

- Exhibit “E” (Notice to Explain dated February 16, 2019 issued to

accused Lorenzo Alos, Jr.);

- Exhibit “F” (Notice to Explain dated February 26, 2019 issued to

accused Roy Alos);

- Exhibit “H” (Letter dated February 26, 2019 executed by Roy Alos);

- Exhibit “I” (Notice of Termination of the accused Roy Alos);

- Exhibit “J” (Notice to Explain dated February 18, 2019 issued to Joel
Villena);

- Exhibit “K” (Handwritten Letter of accused Joel Villena dated February

18, 2019)

- Exhibit “L” (Notice to Explain dated February 26, 2019 issued to Joel
Villena)

- Exhibit “M” (Notice of Admin Hearing dated February 26, 2019 issued
to accused Joel Villena);

- Exhibit “N” (Signed Sinumpaang Salaysay/Confession of the accused

Joel Villena);

- Exhibit “O” (Letter dated February 26, 2019 executed by the accused
Joel Villena);

- Exhibit “P” (Notice of Termination/Decision dated March 1, 2019

issued to accused Joel Villena);

- Exhibit “Q” (Acknowledgment Receipt issued in favor of the accused

Joel Villena);

- Exhibit “R” (Notice of Admin Hearing dated February 26, 2019 issued to
accused Lorenzo Alos, Jr.);

- Exhibit “S” (Handwritten Letter dated February 1, 2019 of accused

Lorenzo Alos, Jr.);

- Exhibit “T” (Handwritten Letter of accused Lorenzo Alos, Jr. dated

January 26, 2019);

- Exhibit “U” (Termination Letter of accused Lorenzo Alos, Jr. dated

February 18, 2019);

- Exhibit “V” (Kasulatan ng Sangla dated March 4, 2019 executed by

accused Lorenzo Alos, Jr.);
- Exhibit “W” (Notice to Explain dated February 26, 2019 issued to
accused Gina Osorio);

- Exhibit “X” (Notice to Explain dated February 26, 2019 issued to

accused Gina Osorio);

- Exhibit “Y” (Notice of Admin Hearing dated February 26, 2019 issued to
accused Gina Osorio);

- Exhibit “Z” (Handwritten Letter of accused Gina Osorio dated February

26, 2019);

- Exhibit “AA” (Signed Sinumpaang Salaysay of accused Gina Osorio);

- Exhibit “BB” (Handwritten Letter accused Gina Osorio dated February

26, 2019);

- Exhibit “CC” (Handwritten Letter of accused Gina Osorio dated March

1, 2019);

- Exhibit “DD” (Notice of Termination/Decision dated March 1, 2019

issued to accused Gina M. Osorio);

- Exhibit “EE” (Kasulatan ng Sangla dated March 4, 2019 dated March 4,

2019 executed by accused Gina Osorio);

- Exhibit “FF” (Kasulatan ng Sangla dated February 26, 2019 bet.

Operations Manager Sherylou Hernando, Asst. General Manager,
Marilou S. Hernando and General Manager Delfin Hernando and
accused Roy A. Alos, Lorenzo Alos, Jr., Gina Osorio and Joel Villena);

- Exhibit “GG” (Memorandum/Letter dated February 18, 2019 of Ink

Bright Trading General Manager Delfin L. Hernando);

- Exhibit “HH” (Excerpt of the Official Police Blotter of the Makati

Police Station under Complaint Report No. 0274 of February 17, 2019);

- Exhibit “JJ-3” (Flash Drive);

- Exhibit “KK and KK-1” (Affidavit of Witness Welsam Denolan dated

June 18, 2019);
 - Exhibit “LL” (Judicial Affidavit of Joseph Archibald N. Roa)

- Exhibits “MM” (Judicial Affidavit of Desiderio S. Marin)

- Exhibits “MM” (Judicial Affidavit of Delfin L. Hernando)

- Exhibits “OO” (Judicial Affidavit of Welsam Denolan)

- Exhibits “PP” (Judicial Affidavit of Sherylou S. Hernando)

On December 7, 2022 Initial Presentation of Defense Evidence commenced.

Accused Roy A. Alos appeared before the Honorable Court and testified through his
Judicial Affidavit.

On February 1, 2023 Continuation of Presentation of Defense Evidence resumed.

Accused Joel A. Villena appeared before the Honorable Court and testified through
his Judicial Affidavit.

On February 8, 2023 Accused Gina M. Osorio appeared before the Honorable Court
and testified through her Judicial Affidavit.

On February 15, 2023 Accused Gina M. Osorio appeared before the Honorable
Court and testified through her Judicial Affidavit.

The four (4) Accused formally offered the following Exhibits:

- Exhibit “1 to 1-A” [Counter-Affidavit of the Accused Roy A. Alos

(including his affixed signature)];

- Exhibit “2 to 2-A” [Counter-Affidavit of the Accused Joel A. Villena

(including his affixed signature)];

- Exhibit “3 to 3-A” [Counter-Affidavit of the Accused Gina M. Osorio

(including her affixed signature)];
- Exhibit “4 to 4-A [Counter-Affidavit of the Accused Lorenzo A. Alos,
Jr. (including his affixed signature)];

- Exhibit “5 Series” Complaint filed before the NLRC by the four (4)
Accused Roy A. Alos, Joel A. Villena, Gina M. Osorio and Lorenzo A.
Alos;

- Exhibit “6” [Decision rendered by the Labor Arbiter in NLRC NCR

Case Nos. 03-05143-19 and 03-05424-19 (dated 5 August 2019) in favor of
the Accused Roy A. Alos, Gina M. Osorio and Lorenzo A. Alos., Jr.];

- Exhibit “7” [Decision rendered by NLRC (6th Division) in NLRC NCR

Case Nos. 03-05143-19 and 03-05424-19 (dated 30 October 2019) in favor
of the Accused Roy A. Alos, Gina M. Osorio and Lorenzo A. Alos., Jr.];

- Exhibit “8” [Resolution rendered by NLRC (6th Division) in NLRC

NCR Case Nos. 03-05143-19 and 03-05424-19 (dated 27 January 2020) in
favor of the Accused Roy A. Alos, Gina M. Osorio and Lorenzo A. Alos.,
Jr.];

- Exhibit “9” [Entry of Judgment (dated 6 Oct. 2020) issued by the NLRC
(6th Division)];

- Exhibit “10” [Decision rendered by NLRC in NLRC NCR Case No.

05-09208-19 in favor of the Accused Joel A. Villena with respect to the
monetary award amounting to PhP 50,460.00];

- Exhibit “11” [Department of Justice Memorandum Circular No. 16

Series of 2014 (date 22 April 2014) issued by Justice Secretary Leila De
Lima];

- Exhibit “12” (Letter from the Office of the President dated 11 June 2019
addressed to the law firm of the defense counsel representing the 4
Accused)

- Exhibit “13” (Petition for Certiorari filed by the Private Complainant

before the Court of Appeals dated 30 April 2020);
 - Exhibit “14” [Decision rendered by the Honorable Court of Appeals
docketed as CA-GR. Sp. No. 165105 (dated 29 April 2022) in favor of the
Accused Roy A. Alos, Gina M. Osorio and Lorenzo A. Alos (with
Resolution dated 29 April 2022)];

- Exhibit “15” [Resolution issued by the Honorable Office of the City

Prosecutor docketed as NPS No. XV-05-INV-19H-3828 (Libel case)
resolved in favor of the Accused Roy A. Alos and Gina M. Osorio]

- Exhibit “16 to 16-A” Judicial Affidavit of Roy A. Alos (with his affixed
signature);

- Exhibit “17 to 17-A” Judicial Affidavit of Joel A. Villena (with his affixed
signature);

- Exhibit “18 to 18-A” Judicial Affidavit of Gina M. Osorio (with her affixed
signature); and

- Exhibit “19 to 19-A” Judicial Affidavit of Lorenzo A. Alos, Jr. (with his
affixed signature.

On 22 May 2023, the Honorable Court Admits Exhibits 1-9 inclusive of their
submarkings for the respective purposes for which they are offered as part of the
testimonies of the accused witnesses. In the dispositive portion of the said Order, it
states that:

“ WHEREFORE, premises considered, the Court ORDERS as follows:

1. The Parties to FILE their respective Memoranda within thirty (30) days
from receipt of this Order; and

2. The concerned Stenographers who took the Transcript Stenographic Notes

(TSNs) during the trial on the merits of the above-cited case TO SUBMIT
their respective TSNs within ten (10) days from receipt of this Order.

SO ORDERED.”

Hence, the four (4) Accused files this Memorandum.

 STATEMENT OF THE ISSUE

The main statement of the issue is whether or not the four (4) accused, Roy Agustin
Alos, Lorenzo Agustin Alos, Jr., Gina M. Osorio and Joel A. Villena committed the
crime of (simple) theft.

ARGUMENTS/DISCUSSIONS

Article 308 of the Revised Penal Code states as follows:

“Art. 308. Who are liable for theft. – Theft is committed by any person who,
with intent to gain but without violence against or intimidation of persons nor force
upon things, shall take personal property of another without the latter’s consent.

Theft is committed by:

1. Any person who, having found lost property, shall fail to deliver the same to
the local authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another,
shall remove or make use of the fruits or object of the damage caused by
him; and

3. Any person who shall enter an enclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall gather fruits, cereals or
other forest or farm products.”

In Miranda v. People cited in Gaviola v. People [516 Phil. 228, 237 (2006)], the
Honorable Supreme Court ruled that:

The elements of the crime of theft are as follows:

(1) that there be taking of personal property;

(2) that said property belongs to another;

(3) that the taking be done with intent to gain;

 (4) that the taking be done without the consent of the owner; and

(5) that the taking be accomplished without the use of violence against or
intimidation of persons or force upon things.

(Emphasis supplied)

In this case, the defense has previously said in their Demurrer to Evidence dated 24
June 2022, that the private prosecutor failed to prove the acts necessary to hold the
four (4) accused liable for theft. They failed to establish that the accused unlawfully
took the property of another. They merely relied on the plastic bag found inside the
comfort room (CR), which has confirmed by the witness (Welsam Denolam) as a
common CR. The same was put into record under “TSN (Welsam Denolan) Crim.
Case No. R-MKT-20-01097-CR, pages 9, April 28, 2021”.

Revisiting the case records, on April 28, 2021, the initial trial of the witness Mr.
Denolam stated in his Judicial Affidavit that he found “a plastic bag containing five
(5) boxes of remanufactured ink cartridges of Ink Brink Trading inside the toilet water
tank.1” He also stated in the same Affidavit that he was able to identify the said ink
cartridges when a picture of ink cartridges (marked as Exhibit A 2 by the prosecution)
was shown to him. During cross-examination, the witness was asked to further
describe the ink cartridges.
The witness (Mr. Welsam Denolam) answered as follows:

“ATTY. GLEIM BREAN U. ERAN:

Q. Can you describe the plastic bag further aside from the color?
A. It is a white plastic bag, sir, containing five(5) cartridges of remanufactured
ink of Ink Bright Trading. It is owned by Ink Bright

Q. Did you see it with your own eyes who actually placed the plastic bag you
mentioned in answer No. 4 of your Judicial Affidavit?
A. No, sir.

Q. By the way , where is this comfort room located?

A. It is located at the 3rd floor of PHILDAP Building, at the third level.

1
Page 2, Judicial Affidavit of Welsam Denolan, April 13, 2021.
2
Page 1, Formal Offer of Exhibits by the Prosecution, Feb. 16, 2022.
xxx

Q.You said that you found the plastic bag at the Men’s Comfort Room inside
the flush of the toilet water tank. Is this a toilet bowl within a cubicle?
A. Yes, sir.

Q. Are you alone in the cubicle when you found the plastic bag?
A. Yes, sir.

Q. Is the comfort room where you found the plastic bag a common Comfort
Room or a common CR?
A. It is a common CR, sir.

Q. Is there any occupant of the PHILDAP Building use this Comfort Room in
the third floor where you found the plastic bag?
A. Yes, sir, and I know it very well because it is also a common CR.

Q. In that floor, how many offices are there renting?

A. On that level sir, it is our Admin Office and Ink Bright Trading also. They
are holding office there, Ink Bright Trading. And on the other side of the same
level is a Function Hall.

Xxxx

Q: In your Answer in Question No.11, you said that one of the reasons you
know that Ink Bright is the owner of the cartridge because it has the name and
the level of Ink Bright, correct?
A:It is correct, sir.

Q: Do you have a mobile phone?

WITNESS: Come again, sir?
Atty. GLEIM BREAN U. ERAN:
Q: Do you have a cellphone?
A: Yes, sir.
Q: What is the name and brand of your cellphone
xxx
xxx
xxx
Atty. GLEIM BREAN U. ERAN:
Q: The second question was, what is the name and brand of your cellphone?
A: And load ko po ay Smart, sir, but my cellphone is Samzung.
 Q: Does this mean that the brand of cellphone owns your cellphone?
A: Yes, sir.”3

Mr. Denolan in his testimony merely described the box of the ink cartridges.
Not the overt acts of the accused, which is the alleged stealing the said items.
Mr. Denolan said that the alleged stolen items are the ones in Exhibit “A”.
However, during cross-examination, he answered that he was not the one who
took the photo. The witness answered as follows:

“ATTY. GLEIM BREAN U. ERAN:

Q: Did you take this picture?
A. No, sir.”4

During the re-direct examination, Atty. Bernardo C. Cabidoy, made an inquiry

with the witness. He showed the alleged plastic bag containing boxes of ink
cartridges. The witness answered as follows:

“ATTY. BERNARDO C. CABIDOY:

Xxxx
Q: At this time, I will be showing you something and please describe what is
this?

WITNESS: Ano po yun? Attorney? Pardon

ATTY. BERNARDO C. CABIDOY: At this time, I’ll be showing you another

thing. Can you recognize this?

COURT: Counsel, can you share screen? So that the Court can also see, dito
sa monitor.

ATTY. BERNARDO C. CABIDOY: I don’t know how to enlarge this.

Yan po ng Makita ko po walang sulat. Bakit ngayon meron.

COURT: I cannot see you counsel. Naka-off ba yung camera mo?

ATTY. BERNARDO C. CABIDOY: Naka-open po ang camera ko po.
WITNESS: Noong makita ko po wala pong sulat ‘yung plastic bag na
puti pero iyan po ‘yun laman.

3
TSN (Welsam Denolan) Crim. Case No. R-MKT-20-01097-CR, pages 8-14, April 28, 2021.
4
TSN (Welsam Denolan) Crim. Case No. R-MKT-20-01097-CR page 17, April 28, 2021.
 Q: Now, I’m showing you the content of the plastic bag.
A: Iyan po yung napulot ko doon sa ano, nakita ko, sa loob ng toilet water tank,
sir.”5

The witness, Welsam Denolam also mentioned about a CCTV. However, the
alleged was never presented before the Court and not examined properly by the
prosecution. During cross-examination, the witness was asked regarding the
CCTV. The witness answered as follows:

“ATTY. GLEIM BREAN U. ERAN:

xxxx

Q: Okay. You mentioned in Judicial Affidavit about a CCTV. Correct?

A: It is correct, sir.

Q: Is this CCTV inside the Comfort Room?

A: No, sir. It is outside the Comfort Room. It is located at the third, first,
second, third, fourth and fifth lobby. But we do not have any CCTV inside the
Comfort Room, sir. And the TV Monitor is located in our Admin Office at the
third floor.

xxxxx

ATTY. GLEIM BREAN U. ERAN:

Q: Does the CCTV you mentioned in your Judicial Affidavit records for the
whole day?
A: Yes, sir. Nai-imbak po ang record, ang footage up to 15 days only, sir.” 6

Continuation of the presentation of evidence took place on May 25, 2021.

Joseph Archibald N. Roa through his Judicial Affidavit (examined by Atty. Bernardo
C. Cabidoy) made his testimony through videoconference hearing. The same witness
was cross-examined by Atty. Gleim Brean U. Eran.

In the testimony of Joseph Archibald N. Roa, he said that, he saw Mr. Lorenzo
Alos, Jr. went to the men’s comfort room at the 3 rd floor of PHILDAF Building and
he is suffering from stomach pains at 3:30pm. During the cross-examination, he was

5
TSN (Welsam Denolan) Crim. Case No. R-MKT-20-01097-CR pages 23 and 24, April 28, 2021.
6
TSN (Welsam Denolan) Crim. Case No. R-MKT-20-01097-CR, pages 15 and 16, April 28, 2021.
asked if there is a connection between Mr. Alos, Jr. presence in the comfort room as a
prelude to steal the alleged ink cartridges. The witness answered as follows:

“Atty. Eran:
Q: Dito sa iyong report, sinasabi mo na si Mr. Lorenzo Alos, Jr. ay pumunta sa
palikuran ng mga lalaki doon sa ikatlong palapag noong 3:30 ng hapon at sinabi mo
ditto sa iyong report na masakit ang kanyang tiyan o sikmura, tama ba?
A: Opo, sir.

Q: Hetong palikura ng panlalaki na nasa ikatlong palapag ng PHILDAF Building, heto

ba ay pampublikong palikuran ng building?
A: Opo, sir.

Q: Meron bang ibang nangungupahan sa PHILDAF Building bukod sa Ink Drive?

A: Opo, marami po.

Q: Ano-ano o sino-sino sila?

A: Kami lang pos a ground, iyong Bright Company, Ukay-uka, Mega Front. Sa second
floor ay andon ang Admin., Al Post, Blue Ink. Sa fourth floor po Infostorage, Kebo,
Info Tech. Sa fifth floor po naman ay Tambunting at dalawang (2) Law Firm po.

Q: Dito sa ikatlong palapag, ilan ang opisina na nangungupahan ditto noong buwan
ng Pebrero 2019?
A: Dalawa (2) lang po. Hindi po kasama ang Admin.

Q: Iyong mga nangungupahan po bas a PHILDAF Building o kaya ang kanilang mga
empleyado, maari po ba nilang gamitin ang palikurang panlalaki o kaya CR doon sa
third floor?
A: Opo, sir”7

Even in the alleged CCTV footage, it is not shown that the accused were seen
committing any of stealing as prescribed by law and jurisprudence. Intent to gain was
never been established in the course of the proceedings. The private prosecutor
clearly failed on this part. Intent to gain is a necessary element to prove the crime of
theft.

For the crime of theft to prosper it must be established that the four (4) accused had
the intent to steal personal property. This animus furandi pertains to the intent to

7
TSN (Joseph Archibald Roa) Crim. Case No. R-MKT-20-01097-CR, pages12 and 13, May 5, 2021.
deprive another of his or her ownership or possession of personal property, apart
from but concurrent with the general criminal intent which is an essential element of
dolo malus.8

The intent to steal is presumed from the taking of personal property without the
consent of the owner or its lawful possessor. As in all presumptions, this may be
rebutted by evidence showing that the accused took the personal property under a
bona fide belief that he owns the property.

In this case, there is no proof that four (4) accused have committed the overt act of
stealing. The private prosecutor only relied on the alleged “Kasulatan”(Kasulatan ng
Sangla” with dates February 26, 2019 and March 4, 2019), which is dubious as to its
authenticity and due execution. The alleged document was presented before the
Honorable Court but the private prosecutor did not even bother authenticating the
same during trial. This is a fatal defect in proving the elements of theft, specifically the
elements that: the taking should be done with intent to gain; the taking should be
done without the consent of the owner; and the taking be accomplished without the
use of violence against or intimidation of persons or force upon things.

The prosecution did not even strengthen their claim that the said “Kasulatan” and
“Signed Sinumpaang Salaysay“ were authenticated. The only proof to strengthen their
claims that these documents, especially the salaysay were genuine can only be made
through notarization. The reason being is that a notarized document enjoys the
presumption of authenticity and due execution. If the complaining witness is
confident of his allegations he would have done the notarization. Considering that
these “Kasulatan” and “Signed Sinumpaang Salaysay“ were not authenticated. These
Exhibits (Exhibit N “Signed Sinumpaang Salaysay/Confession of the accused
Joel Villena” ,Exhibit V “Kasulatan ng Sangla dated March 4, 2019 executed by
accused Lorenzo Alos, Jr“; Exhibit EE “Kasulatan ng Sangla dated March 4,
2019 dated March 4, 2019 executed by accused Gina Osorio”, Exhibit EE
“Kasulatan ng Sangla dated March 4, 2019 dated March 4, 2019 executed by
accused Gina Osorio”, and Exhibit FF “Kasulatan ng Sangla dated February
26, 2019 bet. Operations Manager Sherylou Hernando, Asst. General Manager,
Marilou S. Hernando and General Manager Delfin Hernando and accused Roy
A. Alos, Lorenzo Alos, Jr., Gina Osorio and Joel Villena”. are self-serving.

To reiterate and in relation to the testimony of the witnesses, they do not have
personal knowledge in the acts allegedly committed by the accused. The witness,

8
Gaviola v. People, 516 Phil. 228, 237 (2006).
Welsam Denolam failed to established that the accused have committed any of the
overt acts prescribed by law and jurisprudence to prove the crime of theft.

Records show that the witness fumbled during his testimony especially during cross-
examination as well as in the re-direct examination and re-cross examination. To
quote:

„
ATTY. GLEIM BREAN U. ERAN
Xxx

Q: Did you see it with your own eyes who actually placed the plastic bag you
mentioned in answer No. 4 of your Judicial Affidavit?

A: No, sir.

Xxx

Q: Okay. You attached in your Judicial Affidavit a picture of a plastic with ink
cartridges as exhibit. Correct?

A: Yes, sir.

Q: Did you take this picture?

WITNESS: Question, sir? Pardon?

ATTY. GLEIM BREAN U. ERAN

Q: Did you take this picture?

A: No, sir.

Xxx

ATTY. BERNARDO C. CABIDOY: Re-direct, Your Honor. May I be allowed?

COURT: Okay, re-direct.

ATTY. BERNARDO C. CABIDOY: Mr. Witness, in your Judicial Affidavit you

attached a picture. This picture. Can you see it, Mr. Witness?
A: Opo, opo.

Q: And what is this picture?

A: Iyan po ‘yung remanufactured ink ng Ink Bright Trading. Iyan po ‘yung nakita ko
mismo doon sa loob toilet water tank, at yan po ay naglalaman yung plastic bag na
puti nay an ng limang (5) boxes ng remanufactured ink at bawat isa po ay naglalaman
ng dalawang (2) empty ink cartridges… (interrupted)

Xxx

ATTY. BERNARDO C. CABIDOY: At this time, I’ll be showing you another thing.
Can you recognize this?

COURT: Counsel, can you share screen? So that the Court can also see, dito sa
monitor.

ATTY. BERNARDO C. CABIDOY: I don’t know how to enlarge this.

A: Yan po ng makita ko po walang sulat. Bakit ngayon meron?

COURT: I cannot see you, counsel. Naka-off ba yung camera mo?

ATTY. BERNARDO C. CABIDOY: Naka-open po ang camera ko po.

WITNESS: Noong Makita kop o wala pong sulat ‘yung plastic bag na puti pero iyan
po ang laman.

Xxx

COURT: Any re-cross?

ATTY. GLEIM BREAN U. ERAN: Yes, Your Honor.

Q: Mr. Witness, were you able to identify the contents of the ink cartridges, the
boxes?

A: Yes, sir.

Q: How were you able to do so?

WITNESS: Paki-ulit po, sir.

ATTY. GLEIM BREAN U. ERAN: How were able to do so? How were you able to
identify?

A: Nang mapulot ko po iyan doon sa loob ng toilet tank, hindi na po ako nagtagal
doon kasi na sorpresa nga po ako. At ang aking talagang kuwan ay ‘di sa Ink Bright
Trading. Pumunta po ako doon sa Lobby Guard at the ground floor, at pumunta po
ako doon para i-report yung insidente, and of course to have the incident log.
Inutusan kop o yung security guard na i-log sa logbook ang aking natuklasan ‘yung
napulot ko po na five (5) boxes of ink na Bright Trading na naka-contain po sa white
plastic bag. So, doon po, ay aming tinignan ‘yung laman kaya ko po nalaman na
dalawa (2) ang laman ng bawat isang box. At noon pong aming tinitingnan yung kuan,
binuksan ‘yung bawat bag na naglalaman ng dalawang (2) ink cartridges, tiempo po
naman na napadaan si Ms. Marilou Hernando ‘yung pong asawa ng may-ari at siya po
ay aming tinawag at para tingnan din yung aking nakuhang five (5) boxes of
remanufactured ink. At siya po naman ay lumapit dahil siya po’y tinawag ko. So in-
examin po niya yan ni Ms. Marilou. Tinignan po niyang mabuti at actually, siya po ay
nag-confirm. Inari po niya na iyon ay kanila ‘yung aking napulot. Xxx

ATTY. GLEIM BREAN U. ERAN: Okay

Q: And again, there is no ink cartridges shown in the picture. Correct?
A: Wala po.

ATTY. GLEIM BREAN U. ERAN: Okay. That will be all, Your Honor.”9

(Emphasis supplied)

Records further reflect that the alleged object stolen has not been
authenticated. The plastic bag, being an alleged recovered item, which is the subject of
theft, should have undergone forensics done by the proper authorities. Hence, the
subject item of theft is not the direct evidence. The flip-flopping and fumbling of the
witness (Welsam Denolan) shows that his testimony is nothing but hearsay.

As to the CCTV footage, records show that the video footages were never
played during the presentation of prosecution’s evidence before the Honorable Court
and the same were never authenticated. The videos were splices of the CCTV footage
which impairs the integrity of the evidence. The CCTV footage themselves do not

9
TSN (Welsam Denolan) Crim. Case No. R-MKT-20-01097-CR, pages 8;22-26, April 28, 2021.
consist as direct evidence to establish any of the elements required for the crime of
theft, specifically the elements that: the taking be done with intent to gain; the taking
be done without the consent of the owner; and the taking be accomplished without
the use of violence against or intimidation of persons or force upon things.

The same goes for the witnesses Delfin and Sheylou Hernando who merely
relied on the alleged document so-called “Kasulatan ng Sangla” with dates February
26, 2019 and March 4, 2019. There is no showing that these documents were
authenticated during the presentation of prosecution’s evidence. In fact, these so-
called “Kasulatan ng Sangla” presented as evidence during trial were mere
photocopies are already fatal. And that would render the photocopies being nothing
but hearsay.

Pieces of evidence, whether oral or documentary is hearsay if its probative

value is not based on the personal knowledge of the witness but on the knowledge of
the other person not on the witness stand. This principle is enshrined under Rule 130,
Sec. 36 of the Revised Rules on Evidence. Under the mentioned Rule, it states that:

“Section 36. Testimony generally confined to personal knowledge; hearsay

excluded. — A witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception, except as otherwise
provided in these rules.”

In correlation, one of the exceptions that the prosecution may find applicable in this
case is Declaration against interest. However, it will not hold any ground, because the
alleged “Kasunduan ng Sangla with dates February 26, 2019 and March 4, 2019” are
fatally defective. The reason being is that these were not authenticated before the
Honorable Court. The said documents were mere photocopies and do not enjoy the
presumption of authenticity and due execution.

Since the pieces of evidence consist of hearsays, it cannot establish proof that the
elements of theft are present. Hence, there is no commission of the crime of theft and
criminal liability cannot be made by the four (4) accused.

On the Defense Evidence, it was shown before the Honorable Court that prior
to the institution of this Criminal Case10 the four accused had already instituted a
labor complaint because Private Complainant had poorly treated them as employees.
The case filed before the NLRC predates the filing of this criminal case. This shows
that their labor have genuine motive and cause of action and not a nature of a
counter-charge. It is inferred that, Private Complainant’s institution of this criminal
10
Criminal Case No. R-MKT 20-01097-CR.
action is made with ill-motive in order to pressure the four accused with respect to
their monetary claims and/or award.

To reinforce, the position of the Accused, the prosecution never responded

properly with respect to Exhibits 11 and 12, which consist of Department of Justice
Memorandum Circular No. 16 Series of 2014 (date 22 April 2014) issued by Justice
Secretary Leila De Lima] and Exhibit “12” (Letter from the Office of the President
dated 11 June 2019 addressed to the law firm of the defense counsel representing the
4 Accused). It must be noted and taken into consideration that strict observance of
the DOJ Memorandum Circular No. 16, wherein investigating prosecutors should
seek clearance from the DOJ whenever a criminal case is being filed and the same
time the parties are also the same litigants in a labor dispute. Prosecution manifested
in one of the hearings that the DOJ Memorandum Circular No. 16 applies only to
Labor Disputes involving Labor Unions. To respond to their position, this is baseless.
The reason being is that in the said Memorandum Circular, there is no distinction as
to what labor dispute will DOJ Memorandum Circular be applicable. Exhibit 12
contains that the Office of the City Prosecutor (Makati) did not seek any clearance
from the Department of Justice. This overcomes the presumption of regularity. This
procedural defect should not gloss over for it will create injustice or another mockery
of justice in our legal system. Be as it may, that Exhibit “11” was not admitted during
the Formal Offer of the Accused, it must be noted that the Department of Justice
Memorandum Circular No. 16 should be taken as judicial notice, which does not to
be proven.

As to the proof beyond reasonable doubt, the 1987 Constitution guarantees

that the four accused have in their favor the presumption of innocence which the Bill
of Rights guarantees. Unless his guilt is shown beyond reasonable doubt, 11 he must
acquitted. This reasonable doubt standard is demanded by the due process clause of
the Constitution which protects the accused from conviction except upon proof
beyond reasonable doubt of every fact necessary to constitute the crime with which
he is charged.12 The burden of proof is on the prosecution, and unless it discharges
that burden the accused need not even offer evidence in his behalf, and he would be
entitled to an acquittal.13 Proof beyond reasonable doubt does not, of course, mean
such degree of proof as, excluding possibility of error, produces absolute certainty.
Moral certainty only is required, or that degree of proof which produces conviction in
an unprejudiced mind.14 The conscience must be satisfied that the accused is
responsible for the offense charged.
11
Sec. 2, Rule 133, Rule of Court (Evidence).
12
People v. Garcia, 215 SCRA 349 [1992]; Aguilar, 222 SCRA 394 [1993].
13
People v. Dramayo, 42 SCRA 59 [1971]; Garcia, supra note 16.
14
People v. Matrimonio, 215 SCRA 613 [1992].
In the one of the recent case, People v. P01 Dennis Jess Esteban Lumikid (G.R. No.
242695, June 23, 2020) penned by Chief Justice Diosdado Peralta, the Supreme Court,
in discussing proof beyond reasonable doubt ruled that:

“This rule places upon the prosecution the task of establishing the guilt of an
accused, relying on the strength of its own evidence, and not banking on the weakness
of the defense of an accused. Requiring proof beyond reasonable doubt finds basis
not only in the due process clause of the Constitution but, similarly, in the right of an
accused to be "presumed innocent until the contrary is proved." "Undoubtedly, it is
the constitutional presumption of innocence that lays such burden upon the
prosecution." Should the prosecution fail to discharge its burden, it follows, as a
matter of course, that an accused must be acquitted…

Xxx

… In this jurisdiction, no less than proof beyond reasonable doubt is required

to support a judgment of conviction. While the law does not require absolute
certainty, the evidence presented by the prosecution must produce in the mind of the
Court a moral certainty of the accused's guilt. When there is even a scintilla of doubt,
the Court must acquit.”

Notwithstanding that the Judicial Affidavits of the Accused (Exhibits 16 to 19)

were not admitted for being self-serving as stated by the Prosecution, the presentation
of the Defense Evidence, through their Judicial Affidavits, the accused as witnesses
affirmed that they were intimidated by the Private Complainant (Delfin Hernando) as
well as one of the witnesses (Sherylou Hernando) in signing the said documents such
as the Sinumpaang Salaysay/Confession and Kasulatan as well as the Handwritten
Letters. They were intimidated and being took advantage of their limited intellect due
lack of education and street smarts by the Private Complainant into assenting to sign
and execute this dubious documents and instruments. It was previously stated in the
comment on the Prosecution’s Formal Offer of Exhibits as well Demurrer to
Evidence (filed by the Defense) that these documents should not be admitted and do
not possess any credence for they were executed without the presence of a counsel.
Not just by a counsel, but a competent and independent counsel. Failure to observe
this Constitutional right will greatly impair the evidentiary value of these Exhibits
presented by the Prosecution. Therefore, these pieces of evidence are incompetent.
 RELIEF/PRAYER

WHEREFORE, it is respectfully prayed that judgment be rendered acquitting

Roy A. Alos, Lorenzo A. Alos, Jr., Gina M. Osorio and Joel A. Villena of simple theft.
Other reliefs just and equitable are also prayed for.

Makati City, Philippines

__ May 2023.