Republic of the Philippines

Regional Trial Court

7th Judicial Region
Branch 89
Mandaue City

PEOPLE OF THE PHILIPPINES,

Plaintiff,
CRIM. CASE NO. DU-39507

-versus-

LOIDA CAPACIO &

CRISTOPHEL POVADORA,
Accused.
x-------------------------------------------/

MEMORANDUM

Accused, by counsel and to the Honorable Court most

respectfully state:

STATEMENT OF THE CASE

The Prosecution (People of the Philippines) charges the

accused Loida Capacio and Cristophel Povadora for 13 counts
of estafa for the 13 deposits made by Lovelle Valmoria Padigos
to the account of Cristophel Povadora which the latter claims
the former have misappropriated.

STATEMENT OF FACTS

1. Accused Loida Capacio and Cristophel Povadora are live-

in partners, both residents of Bagong Daan, Yati, Liloan,
Cebu;

2. Lovelle Valmoria Padigos, the private complainant is the

live-in partner of Mark Anthony Jao;

3. Mark Anthony “Amak” Jao is the brother of accused, Loida

Capacio and represents the private complainant by virtue
of a Special Power of Attorney duly executed by the latter;

4. Private Complainant and Mark Anthony “Amak” Jao have

two children, Kelly and Kikertz Padigos;
 2

5. Prior to private complainant going overseas to work, she

and Mark Anthony Jao were living in barangay Pinamgo,
Bien Unido, Bohol. While in Bohol, both were unemployed;

6. That while complainant and Mark Anthony were

unemployed, both of the accused gave them financial
support by regularly sending money through Palawan
Express Padala. The money were addressed and received
by Mark Anthony;

7. In July 2016, Lovelle was hired as a domestic helper in

Saudi Arabia. She stayed in the country for two years from
July 2016 to August 2018, while Mark Anthony continued
to be unemployed and stayed with their two children in
Barangay Pinamgo, Bien Unido, Bohol. The fact of his
unemployment, was admitted to by Mark Anthony during
cross examination;

8. Tha since Mark Anthony was unemployed, it was Lovelle

who supported him and their two children by sending
money from Saudi Arabia. It was admitted by Mark
Anthony that the only source of funds of the family was
the money sent by Lovelle.;

9. Since Mark Anthony had no credentials to open a bank

account, the money was sent through Accused
Cristophel’s BPI Account No. 9799025253 which is based
in the Head Office in Makati. Cristophel served as the
depositary of the money for purposed of safekeeping with
the obligation to wait for instructions from Lovelle on how
to disburse it. Lovelle had voluntarily made the deposit for
safekeeping;

10. Over the two years that Lovelle was in Saudi Arabia, she
made 13 deposits amounting to P 384,825.00. Upon
receipt of each of these remittances, the accused would
wait for Lovelle’s instructions to send certain amounts of
money to Mark Anthony for the subsistence of her family
which the Accused did through Palawan Express Padala;

11. Records would show the receipt of money from Lovelle

and remittances to Mark Anthony:
 3

Date of Amount Date sent Amount Transaction

Receipt to Jao Code
from
Saudi
08/02/16 7395.00 08/04/16 7200.00 BEX-010-
64620-BKW
08/30/16 18,263.00 09/01/16 20,000.00 BXM-0088-
76147-BKW
10/04/16 17,699.00 10/07/16 10,000.00 BXM-008-
82509-BKW
11/03/16 17,498.00 11/05/16 9,500 DAI-008-
3346-CXT
11/25/16 6,000.00 AMI-
011039218-
CXT
12/07/16 38,830.00 12/09/16 11,400.00 DAI-008-
63381-CXT
01/09/17 11,300.00 BXM-008-
99326-CXT
02/06/17 18,229.00 02/10/17 10,000.00 BVS-009-
03706-CXT
03/01/17 20,000.00 DAI-008-
13731-CXT
03/05/17 36,714.00 03/28/17 10,000.00 DAI-008-
16387-CXT
TOTAL 154,624.0 115,400.00

12. Palawan Express Certification dated 27 May 2019 which

was marked and formally offered as Exhibit 2 would prove
that there were remittances sent by the accused to. Mark
Anthony in Bohol. This was admitted to by Mark Anthony
when he testified in court.

13. The last remittance through Palawan Express Padala to

Mark Anthony Jao was on March 28, 2017 as Mark
Anthony was hired by the accused as a purchaser and
was engaged to sometimes assist in food preparation in
the Accused’ carenderia business at Tambayan sa Lacion
Food Park at Pitogo, Consolacion. He was given a salary of
P7,500.00 with free board and lodging.

14. While Mark Anthony worked in the accused’ carenderia,

Lovelle continued to send money in bulk but with the
instructions not to give monthly amounts to Mark
 4

Anthony. However, Mark Anthony would draw money from

the account with prior consent of Lovelle.

15. Accused Loida Capacio and Lovelle constantly

communicated in Facebook Messenger. Among their
numerous chats are communications regarding the status
of the money sent by Lovelle and the money remitted to
Mark Anthony. The fact that there were communciations
between the Complainant and Loida was admitted.

16. A screenshot of the Facebook messenger exchange

between accused Loida and Lovelle on 8 May 2018, the
content of which was compared by the prosecution to the
actual facebook chat in Loida Capacio’s phone, and which
was marked and offered as Exhibit 3, would prove that
Lovelle knew that the accused had remitted portion of the
anount she deposited in Cristophel’s account to her live-in
partner Mark Anthony Jao also known as Amak, thereby
belying the claim of misappropriation.

17. The facebook chat between Loida and Lovelle are as

follows:

LOVELLE: Pila man dia ay u kwenta sa pondo dha

loi

(How much is the money there, Loi)

LOIDA (LOI): Mangayo pame bank statement be kay

utingkayon to nko kato nka stop nka padala unya
katdo nka balik napd ka padala

Dili pa ko sure perio naa man cguro Sa 200k plus

(We will ask bank statement as I will look into it

when you stopped sending money and when you
resumed sending money. I am sure but it should
be around 200k plus)

LOVELLE: Oh sako ka sa imong kwnta loi parehas

Ta sgdi lang ako man keep tnan papel Dri nya kda
kuha amak ako Inote kanunay Ayaw langud blema
sakto man io kwenta

(Oh. Your computation is correct loi. We have

the same computation. I keep all papers here. I
also note whenever Amak (Mark Anthony) got
 5

money. Don’t worry, your computation is

correct.)

18. Based on her accumulated remittance until 8 February

2018 (Php 346,731.00) and the amount remitted to Mark
Anthony Jao as of March 2017 s (P 115,400.00), the
amount in the possession of the accused as of May 8 2018
was PHP 230,000.00. The amount corresponds to Lovelle’s
computation.

19. Mark Anthony would also draw money from the

remaining money in the account with prior consent of
Lovelle. The following have been listed as the amount and
purpose of the withdrawal of the amount by Mark
Anthony:

a. 2,000.00 school bag for his children

b. 1,500.00 purchase of fighting cock
c. 1,000.00 for their son Kelly
d. 2,000.00 for painting of the pumpboat
e. 1,000.00 for real estate tax of Bohol property
f. 2,000.00 alms for Bobby
g. 5,000.00 Christmas items
h. 27,000.00 for watches
I, 10,000.00 fare and other expenses going to
Bohol

TOTAL. PHP 51,500.00

20. Lovelle’s work contract ended in August 2018 and

she returned to the Philippines. When she came back,
she stayed at our store KLC Pochero and Grill with Mark
Anthony and their two children. They had free food and
accommodations. Their 2 children transferred to Tayud
Elementary School. Moreover, she was hired by the
accused to assist in the purchasing and cashiering of
their food business. She was given a salary of P 7,500.00,
the same amount Mark Anthony received.

21. As Lovelle had no bank account, she requested that

the money remain with the accused and that she would
only draw money from it when needed.

22. Aside from the salary given to both Lovelle and

Mark Anthony for working in the accused business, the
only other source of funds for their needs and wants is
the money in the safekeeping of Cristophel. That fact that
 6

their main source of funds for their sustenance and

wants is the money sent by Lovelle was admitted by Mark
Anthony.

23. In December 2018, Mark Anthony wanted to buy a

motorcycle in cash. Because they have no other funds
from which to buy the motorcycle, Lovelle and Mark
Anthony requested to get the amount of P 110,000.00
from Lovelle’s remaining money in possession of
Cristophel.

24. As Cristophel had several bank accounts, he readily

withdrew the amount of P110,000.00 from his
Chinabank Account on 14 December 2018 and gave the
amount to Mark Anthony. The amount was drawn from
the Chinabank account as the amount was substantial
and so it can be easily tracked in the passbook.

25. The withdrawal of the amount of P110,000.00 is

proven by the Chinabank Passbook of Cristophel
Povadora with account number 1751970611. The
photocopy of the front page and page 3 of the passbook,
which were stipulated as true and faithful reproductions
of the original were marked as Exhibits 5 and 5-A,
respectively.

26. Mark Anthony Jao purchased the motorcycle the

day after, or on 15 December 2018. This was purchased
in Motorace Philippines, a copy of the sales invoice of
which, was presented and marked as Exhibit 3. Mark
Anthony admitted the purchase of the motorcycle.

27. Mark Anthony claimed that on August 2018 they

demanded that the Accused turnover the amount of P
384,825.00 is false as first, they knew for a fact that
the amount is no longer P384,825.00 as a substantial
portion has been used by them. Second, this allegation
is refuted by the fact that they were able to withdraw
P110,000.00 from the accused to buy a motorcycle in
cash. As have been stated above, they have no other
source of funds to buy in cash the motorcycle except
from her savings deposited in Cristophel’s account.

28. Moreover, the claim that the accused refused to

turn-over the money is refuted by the admission of Mark
Anthony when he testified in court, that the accused
already offered to give them back the money. The truth of
the matter is that since arriving back in the Philippines,
 7

Lovelle did not demand for the turnover of the money as

she was satisfied that the money was safe with the
accused and so that the money would not be carelessly
spent by the Lovelle and Mark Anthony. Besides, both
Lovelle and Mark Anthony were employed by the accused
and living with them free board and lodging.

29. In December 2018, the accused discovered that

both Mark Anthony and Lovelle were involved in money
anomalies in purchasing food and materials for the
accused’ food business. When confronted about the
discovery, the complainant and Mark Anthony became
defensive. So on 25 December 2018, both of the accused
refused to give them money to purchase the eatery’s food
materials for 26 December 2018.

30. Lovelle left for Bohol with her children on 26

December 2018. Mark Anthony remained and asked for
the money but Accused told him that they need to settle
and make an accounting with Lovelle, and not him, as
the money was Lovelle’s personal money.

31. Accused Capacio informed Lovelle through text that

they meet in the Office of the Barangay of Tayud on 28
December 2018. Both parties appeared before the Office
of the Barangay Captain but the conciliation was
rescheduled to 15 January 2019.

32. During the conciliation proceeding on 15 January

2019, the accused confronted Lovelle and Mark Anthony
of the anomalies in relation to the purchasing ang
cashiering of the eatery. The complainant and Mark
Anthony claimed that the accused were making up
stories because the latter would not give them their
money. The accused asked them the exact figures
considering that substantial withdrawals from the
deposit have been made, but they could not come up
with the amount. The accused told them there is still a
need to reconcile the amounts first so another setting
for the case was scheduled on 2 February 2019.

33. As Lovelle refused to come up with the amount

during the confrontation in the Lupo Tagapamayapa and
informed that they will just accept whatever amount, a
certification to file action was issued on 4 February 2019
at Tayud, Liloan, Cebu.
 8

34. On 6 March 2019, the accused went to Office of the

Prosecutor in the Municipality of Liloan to file a
complaint for qualified theft and trespassing with threat
against Lovelle and Mark Anthony. The case was not
pursued by accused Loida in view of the fact that Mark
Anthony Jao was her brother;

35. Mark Anthony Capacio in paragraph 11 of his

sworn affidavit admitted that they were so humiliated of
the fact of the filing of the complaint by the accused
against them which prompted Lovelle to file the instant
case against Loida Capacio and Cristophel Povadora for
Estafa.

36. Clearly the case was only filed out of humiliation as

the accused are clearly not guilty of Estafa.

37. Estafa under paragraph 1 (b), Article 315 of the RPC

is committed with unfaithfulness or abuse of confidence
by misappropriating or converting, to the prejudice of
another, money, goods or any other personal property
received by the offender in trust, or on commission, or for
administration, or under any other obligation involving
the duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed
by a bond; or by denying having received such money,
goods, or other property.

38. There is no crime of estafa as the relationship

between Lovelle and the accused is that of a depositary
based on Article 1962 and 1968 of the Civil Code of the
Philippines. The money received was not held by the
accused in trust, or on commission, or for
administration, or under any other obligation involving
the duty to make delivery of or return the whole amount
deposited.

39. Moreover, there is no misappropriation of the money

deposited by the complainant to the account of
Cristophel was committed by the accused. In fact, there
is nothing in the complaint-affidavit of Mark Anthony Jao
that sufficiently alleged the specific acts of
misappropriation.

40. Further, the remaining amount of P 107, 925.00 which is

in the possession of the accused is still available. The
amount is computed as follows:
 9

Total amount from Lovelle 384,825.00

Less:
 Amount remitted to 115,400.00
Mark Anthony Jao
Thru Palawan express
 Motorcycle 110,000.00
 Various withdrawals 51,500.00

Total - 276,900.00

REMAINING MONEY P 107,925.00

41. The prosecution presented Mark Anthony Jao but

did not formally offer any evidence.

42. The defense presented both of the accused,

Cristophel Povadora and Loida Capacio who testified the
fact of the deposit and the fact that Mark Anthony Jao
received remittances from the accused. The fact of the
complainant and Mark Anthony’s withdrawal of the
amount of P 110,000.00 and the subsequent purchase of
a motorcycle in cash was testified to by Povadora.

43. Accused Capacio testified to the fact that she and

complainant constantly communicated and Facebook
and identified screenshots of her conversation with the
complainant where the latter admitted the amount left in
the possession of the accused.

44. On 10 August 2023, after admitting the evidence of

the Defense, the Honorable Court gave the parties fifteen
(15) days within which to submit Memorandum. Thus,
this timely filing.

ISSUE

Whether or not accused Loida Capacio and Cristophel

Povadora are guilty of 13 counts of estafa.

ARGUMENTS AND DISCUSSIONS

THE PROSECUTION MISERABLY FAILED

TO PROVE BEYOND REASONABLE DOUBT
 10

THAT THE ACCUSED COMMITTED THE

CRIME OF ESTAFA

The accused Loida Capacio and Cristophel Povadora were

charged with 13 counts of estafa covering the 13 deposits
made by complainant Lovelle to the account of accused
Povadora which the accused allegedly failed to turn over to the
complainant and her live-in partner, Mark Anthony Jao.

Estafa under paragraph 1 (b), Article 315 of the RPC is

committed with unfaithfulness or abuse of confidence by
misappropriating or converting, to the prejudice of another,
money, goods or any other personal property received by the
offender in trust, or on commission, or for administration, or
under any other obligation involving the duty to make delivery
of or to return the same, even though such obligation be
totally or partially guaranteed by a bond; or by denying having
received such money, goods, or other property.

The elements of Estafa through misappropriation under

Article 315, paragraph 1 (b) are:
(a) the offender's receipt of money, goods, or
other personal property in trust, or on commission,
or for administration, or under any other obligation
involving the duty to deliver, or to return, the same;
(b) misappropriation or conversion by the
offender of the money or property received, or denial
of receipt of the money or property;
(c) the misappropriation, conversion or denial
is to the prejudice of another; and
(d) demand by the offended party that the
offender return the money or property received.1

To secure conviction, it behooves upon the prosecution

prove the existence of all the essential elements of the offense
charged beyond reasonable doubt. Anything less than all the
elements of the offense charged negates a finding of guilt.

The prosecution miserably failed to prove all the elements

of estafa.

1
RAMONA FAVIS-VELASCO AND ELVIRA L. YULO VS. JAYE MARJORIE R. GONZALES, G.R. No. 239090, June
17, 2020
 11

First, Though it is admitted that the Complainant

deposited money on 13 different dates to the account of
Cristophel Povador, the accused Povadora’s receipt of the
money is not in trust, or on commission, or for administration,
or under any other obligation involving the duty to deliver, or
to return, the same amount of money.

The relationship between Lovelle and Cristophel is that of

depositary. This relationship is based on Articles 1962 and
1968 of the Civil Code, which provides:

Article 1962. A deposit is constituted from the

moment a person receives a thing belonging to
another, with the obligation of safely keeping it
and of returning the same. If the safekeeping of
the thing delivered is not the principal purpose of
the contract, there is not deposit but some other
contract.

Article 1968. A voluntary deposit is that wherein

the delivery is made by the will of the depositor.
A deposit may also be made by two or more
persons each of whom believes himself entitled to
the thing deposited with a third person, who
shall deliver it in a proper case to the one to
whom it belongs.

The prosecution failed to prove the first element. It just

presented the fact of the deposit but failed to prove beyond
reasonable doubt that the receipt of the money by the accused
was in trust or commission, or with a duty to deliver or return
the same amount.

On the contrary, the relationship was that of a

depositary. Cristophel is legally considered the depositary of
the said money for purposes of safekeeping with the obligation
to wait for instructions from Lovelle on how to disburse it.
Lovelle had voluntarily made the deposit for safekeeping.

The absence of the first element alone sufficiently shows

the Prosecution’s failure to prove that Capacio and Povadora
are guilty of estafa under Article 315(1)(b). As such, they must
be acquitted.

Second, assuming, for the sake of argument, that the

first element was satisfied, the second element of
misappropriation is also not satisfied.
 12

The prosecution failed to show beyond reasonable doubt

of the specific acts or evidence that the Accused actually
misappropriated the amount of P384.825.00 for their personal
use. They merely claimed that the whole amount of
P384,825.00 was not returned upon demand.

The essence of this kind of estafa is the appropriation or

conversion of money or property received to the prejudice of
the entity to whom a return should be made. The words
convert and misappropriate connote the act of using or
disposing of another's property as if it were one's own, or of
devoting it to a purpose or use different from that agreed
upon. To misappropriate for one's own use includes not only
conversion to one's personal advantage, but also every attempt
to dispose of the property of another without right. In proving
the element of conversion or misappropriation, a legal
presumption of misappropriation arises when the accused fails
to deliver the proceeds of the sale or to return the items to be
sold and fails to give an account of their whereabouts.2

Accused Povadora and Capacio did not misappropriate

nor did they dispose of the money as if it were their own,
neither did they devoted it to a purpose other than what was
agreed upon.
As have been discussed, the Accused was a mere
depositary of Lovelle’s money for safekeeping with the
obligation to wait for the instructions of Lovelle on how to
disburse the money.
The fact that the whole amount of the P384, 825.00 was
used by the Accused was not proven in court. On the contrary,
the sole witness of the Prosecution admitted the fact that the
Accused have remitted certain amounts to him taken from the
deposit of Lovelle. This was further bolstered by the fact that a
certification from Palawan Express Padala clearly showed
transactions made by either Capacio or Povadora and the
receipt of MARK ANTHONY JAO of the amount. The
transactions were from August 2016 to March 5, 2017.
The remittances to Mark Anthony Jao sent through
Palawan Express Padala were in the total amount of P 115,
400.00

2
ORMA C. GAMARO AND JOSEPHINE G. UMALI, PETITIONERS, VS. PEOPLE OF THE PHILIPPINES G.R. No.
211917. February 27, 2017
 13

The admission and the certification dated 27 May 2019,

which was not objected to by the Prosecution when formally
offered, clearly show that there was no misappropriation of the
money deposited by Lovelle, and that portion of it was
disbursed to her live-in partner, Mark Anthony Jao.
Moreover, the facebook messenger exchanges between
accused Capacio and complainant would prove that she
acknowledge the remaining amount of the money deposited as
of 8 May 2018 to that be around Two hundred Thousand
Pesos after a portion of the amount was sent to her live-in
partner.

The facebook chat between Loida and Lovelle are as

follows:

LOVELLE: Pila man dia ay u kwenta sa pondo dha

loi

(How much is the money there, Loi)

LOIDA (LOI): Mangayo pame bank statement be

kay utingkayon to nko kato nka stop nka padala
unya katdo nka balik napd ka padala

Dili pa ko sure perio naa man cguro Sa 200k plus

(We will ask bank statement as I will look into

it when you stopped sending money and when
you resumed sending money. I am sure but it
should be around 200k plus)

LOVELLE: Oh sako ka sa imong kwnta loi parehas

Ta sgdi lang ako man keep tnan papel Dri nya kda
kuha amak ako Inote kanunay Ayaw langud blema
sakto man io kwenta

(Oh. Your computation is correct loi. We have

the same computation. I keep all papers here.
I also note whenever Amak (Mark Anthony) got
money. Don’t worry, your computation is
correct.)

Based on their facebook messenger exchanges, Lovelle

knew that a substantial portion of the money she deposited to
Cristophel’s BPI account have been remitted to her live-in
partner, Mark Anthony. There, is therefore, no
 14

misappropriation as her instructions were followed by the

accused.

Another proof that there was no misappropriation was

the fact that on 14 December 2018, Lovelle and Mark Anthony
asked Cristophel for the amount of P 110,000.00 to purchase
a motorcycle in cash. The withdrawal is proven by the
Chinabank passbook if Cristophel Povadora.

This is further strengthened by the fact that the day

after, Mark Anthony purchased a motorcycle amounting to
103,000.00 and paid it in full. There was no way for them to
be able to buy the motorcycle in cash other than to draw from
the deposit of Lovelle as safekept by Cristophel. Moreover, it
was admitted by the prosecution’s sole witness that their main
source of funds is the money deposited by Lovelle.

Furthermore, the remaining amount of P 107, 925 is still

intact.

It is also noteworthy that the Prosecution’s sole witness

merely testified of the fact that there were deposits made to the
BPI account and alleged that the money was not turned-over.
However, aside from mere allegations, no other evidence was
presented to prove the alleged misappropriation. In fact, there
were no documentary evidence presented and offered to prove
the misappropriation.

As such, the accused should be acquitted for failure of

the Prosecution to prove beyond reasonable doubt that the
accused misappropriated the money deposited.

Third, the element of prejudice to the complainant is

missing as there was no misappropriation in the first place.

Fourth, as to the element of demand, it was Mark

Anthony Jao who demanded for the return of the total amount
deposited. As to why the Accused did not give the remaining
amount to Mark Anthony when he demanded for it on 26
December 2018, it was because he had no personality to make
the demand, rather it should be made by Lovelle, who
personally owned the deposit. Moreover, there was still a need
to reconcile the money left after all the withdrawals. There was
therefore no demand made by the complainant herself on 26
December 2018.

As to the mediation conferences in the barangay, the

purpose was to confront the complainant and Mark Anthony
 15

Jao regarding the unearthed anomalies in the accused

carenderia. Moreover, there was still a need to account for the
deposits made and the withdrawals and disbursements made
by the Complainant and Mark Anthony.

The State miserably failed to prove the existence of all the

essential elements of the offense charged beyond reasonable
doubt. Anything less than all the elements of the offense
charged negates a finding of guilt. The Accused Povadora and
Capacio, should therefore, be acquitted.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable

Court that judgment be rendered ordering the ACQUITTAL of
Accused Povadora and Capacio of the crime charged.

The accused likewise prays for costs and for such other
and further relief as this Honorable Court may deem just and
equitable in the premises.

Cebu City for Mandaue City, Cebu.

25 August 2023.

BADUEL ESPINA & ASSOCIATE

Suite 302d GMC Plaza Building
Legaspi St. cor. MJ Cuenco Ave.
Cebu City

By:

CHRISTINA ANGELI C. ESPINA-

ABELLANA
Roll No. 65085
PTR No. 4788755 01.04.23 Cebu
MCLE VII-0003797 07.29.21 valid
until 4.14.25
Contact No. 09177069343
Email: cae.abellana@gmail.com

Copy furnished:

Prosecutor Jeromer G. Abarca

Office of the City Prosecutor
Mandaue City