Perez v. CA
G.R. No. 143838 May 9, 2002
Lessons Applicable: Attempted Rape (abandoned)
Laws Applicable:
FACTS:
• March 25, 1988: Julita Tria was in the kitchen doing the dishes when Adelmo Perez Y Agustin appeared at her back with unzipped shorts and bare torso, embraced her and warned not to make a sound or he’ll kill her
• April 14, 1988 morning: After Julita was through with washing the dishes, she proceeded to the bedroom to store away their, beddings. Suddenly Adelmo appeared pulling her by the hand, embraced her from behind and held her breasts. He pulled her to the bamboo bed, positioned himself on top of her and placed her hands behind her as he kissed her lips and neck. She tried to avoid his kisses by moving her head from side to side. As she was pinned, he managed to insert his right hand inside her t-shirt and bra and squeezed nipples. Then, he tried to raise her balloon-like skirt with his right hand, inserted it inside her panty and while making up and down motions. Adelm said: “Sige na, pagbigyan mo na ako.” She then cried out “Inay”.
• Eufemia Tria: She peeped into their window which was just a few meters from where she was and there saw her daughter Julita lying flat on a bamboo bed with her skirt raised and Adelmo on top of Julita as her hands pinned down. She then rushed to the room and found Adelmo hiding under the bamboo bed. She thought of hacking him with a bolo but realized she couldn’t so she brought him to his parents’ house to tell them what happened.
• Dr. Emmanuel Cortez-Asuncion: extent of injuries sustained by her and that the slight physical injuries could have been caused by attempted rape
• Adelmo: He invited Julita as they were already becoming intimate to the room where they could not be seen by her mother. But, her mother called her and went into the room. Sensing this, he stood up and hid under the bed.
• RTC: Attempted rape
• CA: Affirmed
ISSUE: W/N there is attempted rape
HELD: NO. MODIFIED acts of lasciviousness
• Under Article 6 of the Revised Penal Code, there is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.
• 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.
• There is no showing in this case that petitioner’s sexual organ had even touched complainant’s vagina nor any part of her body.
• acts constitute acts of lasciviousness. The elements of said crime are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex.
