5. People v.

Abello
G.R. No. 151952
25 March 2009
Sec 6: A complaint or information is sufficient if it states the name of the accused; the designation of the offense
given by the statute; the acts or omission complain of as construing the offense; the name of the offended party, the
approximate date of the commission of the offense, and the place where the offense was committed. When an offense
is committed by more than one person, all of them shall be included in the complaint or information.

Facts: Appellant Heracleo Abello y Fortada (Abello) was convicted of one count of rape by
sexual assault and two counts of sexual abuse under the Child Abuse Law committed against his
step daughter, AAA. The following information for rape was filed against the appellant: (note
there are three Informations filed, one for rape and two for sexual assault).

1. “That on or about the 8th day of July 1998, in Navotas, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, being a step-father (sic)
of victim AAA,4 with lewd design and by means of force and intimidation, did then
and there willfully, unlawfully and feloniously putting his penis inside the mouth of said
AAA, against her will and without her consent”

The victim was a 21 year old girl who contracted polio when she was just 7 months. On
June 30, 1998 at around 4:00 o’clock morning, AAA was sleeping in their house in Navotas with
her sister-in-law and nephew. She was suddenly awakened when Abello mashed her breast.
Come July 2, 1999 at around 3:00 a.m, Abello again mashed the breast of AAA under the same
situation while the latter was sleeping. In these two occasions AAA was able to recognize Abello
because of the light coming from outside. Then on July 8, 1998, at around 2:00 a.m, Abello
placed his soft penis inside the mouth of AAA. The victim on the same date reported the incident
to her sister-in-law and mother.

The RTC found Abello guilty under all three Informations. The CA affirmed Abello’s
conviction on appeal and increased the penalties imposed. Abello now appeals his conviction for
rape on the ground that the mode of commission provided for in the information is different from
that proven during the trial. He also questions his conviction for sexual abuse since AAA does
not fall under those protected by RA 7610 (Child Abuse Law).

Issue:
1. WoN the appellant shall be acquitted due to the difference between the modes of
commission provided for in the Information for rape and that proven at the trial.
2. WoN appellant is guilty of sexual abuse under the Child Abuse Law. If he’s not,
if he can be liable for an offense other than that stated in the information.
3. WoN the alternative circumstance of stepfather-stepdaughter relationship should
be considered as an aggravating circumstance.
4. WoN aggravating circumstances not mentioned in the Information can be
considered to increase the penalty.

Held:
1. NO, variance in the mode of commission of the offense is binding upon the
accused if he fails to object to evidence showing that the crime was
committed in a different manner than what was alleged. The Information
 alleges “force and intimidation” as the mode of commission. However, AAA
testified during the trial that she was asleep at the time it happened and only
awoke to find Abello’s male organ inside her mouth. This variance is not fatal to
Abello’s conviction for rape by sexual assault. A variance in the mode of
commission of the offense is binding upon the accused if he fails to object to
evidence showing that the crime was committed in a different manner than what
was alleged. In the present case, Abello did not object to the presentation of
evidence showing that the crime charged was committed in a different manner
than what was stated in the Information. Thus, the variance is not a bar to
Abello’s conviction of the crime charged in the Information.

2. NO, appellant cannot be held guilty under the Child Abuse Law but he can
be held for Acts of Lasciviousness. AAA cannot be considered a child under
Section 3(a) of R.A. No. 7610 which states that “Children” refers to person below
18 years of age or those over but are unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition. AAA was neither below
18 nor was she fully unable to take care of herself. Though Abello cannot be held
liable under RA 7610, he is still liable for acts of lasciviousness under Article 336
of the RPC. The character of the crime is not determined by the caption or
preamble of the information or from the specification of the provision of law
alleged to have been violated; the crime committed is determined by the recital of
the ultimate facts and circumstances in the complaint or information. In the
present case, although the two Informations wrongly designated R.A. No. 7610 as
the law violated; the allegations therein sufficiently constitute acts punishable
under Article 336 of the RPC whose elements are:
a. That the offender commits any act of lasciviousness;
b. That the offended party is another person of either sex; and
c. That it is done under any of the following circumstances:
i. By using force or intimidation; or
ii. When the offended party is deprived of reason or otherwise
unconscious; or
iii. When the offended party is under 12 years of age or is demented.

3. NO, the relationship should not be considered as an aggravating

circumstance. Though the three Informations all alleged the
stepfather-stepdaughter relationship between AAA and Abello, this modifying
circumstance, was not duly proven in the present case. The prosecution failed to
present the marriage contract between Abello and AAA’s mother. If the fact of
marriage came out in the evidence at all, it was only via an admission by Abello
of his marriage to AAA’s mother. This admission is inconclusive. The court is
strict on considering relationship as an aggravating circumstance because it
increases the imposable penalty, and hence must be proven by competent
evidence.
 4. NO, the aggravating circumstances of dwelling and knowledge of disability
cannot be considered. Although not alleged in the information, the aggravating
circumstance of dwelling was proven during the trial. Additionally, Article 266-B
(penalties for rape) of the RPC recognizes “knowledge by the offender of the
mental disability, emotional disorder and/or physical handicap of the offended
party at the time of the commission of the crime” as a qualifying circumstance.
This knowledge by Abello of AAA’s polio was also proven during the trial but
not alleged in the Information. Though these aggravating and qualifying
circumstances of dwelling and Abello’s knowledge of AAA’s physical disability
were not considered in imposing the penalty, they may be appreciated in awarding
exemplary damages.

Therefore, appellant is found guilty of rape by sexual assault and acts of lasciviousness.

1) For the crime of rape, he is sentenced him to suffer an indeterminate prison

term of six years of prision correccional, as minimum, to ten years of prision
mayor, as maximum. He is ordered to pay P30,000.00 as civil liability;
P30,000.00 as moral damages and P25,000.00 as exemplary damages;
2) For each count of acts of lasciviousness, he is sentenced to an indeterminate
prison term of six months of arresto mayor, as minimum, to four years and
two months of prision correccional, as maximum. He is further ordered to pay
AAA the amounts of P20,000.00 as civil indemnity; P30,000.00 as moral
damages and P2,000.00 as exemplary damages, in each case.