Janu

G.R. No. 210161

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
BIENVINIDO UDANG, SR. y SEVILLA,  Accused-Appellant
1

DECISION

LEONEN, J.:

A single act may give rise to multiple offenses. Thus, charging an accused with rape, under the Revised Penal Code,
sexual abuse, under Republic Act No. 7610, in case the offended party is a child 12 years old and above, will not viol
of the accused against double jeopardy.

This resolves an appeal from the. October 9, 2013 Decision  of the Court of Appeals in CA-G.R. CR HC No. 01032 af
2

conviction of accused-appellant, Bienvinido Udang, Sr. y Sevilla (Udang), for two (2) counts of rape defined under Ar
paragraph 1 of the Revised Penal Code.  Udang was sentenced to suffer the penalty of reclusion perpetua on both co
3

ordered to pay the private complainant civil indemnity, moral damages, and exemplary damages.

On December 8, 2005, two (2) Informations for child abuse were filed against Udang before the Regional Trial Court
de Oro City. The first was docketed as Family Case No. 2006-140, the accusatory portion of which read:

The undersigned Prosecutor II accuses BIENVINIDO UDANG for the crime of CHILD ABUSE, committed as follows:

That in the later of December, 2003, at more or less 9:00 o'clock in the evening, at Lumbia, Cagayan de Oro City, Ph
and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully,
and sexually abuse one [AAA], 14 yrs. old, minor by committing the following acts, to wit: accused together with Bienv
Udang, Jr., Betty Udang and the offended party dr[a]nk three (3) bottles of pocket size of [T]anduay rum in the house
accused and when offended party became intoxicated, accused brought and carried her inside the room and undress
removing her . . . clothes and panty and accused placed himself on top of her and have sexual intercourse with offen
herein, which acts of the accused had clearly debased, degraded or demeaned the intrinsic worth and dignity of the s
as a human being.

Contrary to and in Violation of Article 266-A in relation to Sec. 5 (b) of R.A. 7610. 4

The second Information, docketed as Family Case No. 2006-141, read:

The undersigned Prosecutor II accuses BIENVINIDO UDANG for the crime of CHILD ABUSE, committed as follows:

That in the later part of September, 2002, at more or less 9:00 o'clock in the evening, at Lumbia, Cagayan de Oro Cit
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully
feloniously, and sexually abuse one [AAA], 14 yrs. old, minor by committing the following acts, to wit: accused togeth
[daughter] Betty Udang, Renato Yana and the offended party dr[a]nk five (5) bottles of pocket size [T]anduay rum in t
the accused and when offended party became intoxicated, accused brought her inside his room, her clothings (sic) w
removed and then and there accused placed himself on top of her and have sexual intercourse with the offended par
which acts of the accused had clearly debased, degraded or demeaned the intrinsic worth and dignity of the said min
human being.
Contrary to and in Violation of Article 266-A in relation to Sec. 5 (b) of R.A. 7610. 5

Udang pleaded not guilty to both charges during his arraignment on June 26, 2006.  Joint trial then ensued.
6

Testimonies from prosecution witnesses, private complainant, AAA, and Dr. Darlene T. Revelo (Dr. Revelo) of the De
Obstetrics and Gynecology of the Northern Mindanao Medical Center, Cagayan de Oro City, proved the following ver
facts.

One evening in September 2002, AAA, then 12 years old,  drank alcoholic beverages with Udang's children, her neig
7

Udang (Betty) and Bienvinido Udang, Jr. (Bienvinido, Jr.), at their house in Lumbia, Cagayan de Oro City. 8

After drinking five (5) bottles of Tanduay rum, AAA became intoxicated. She later realized that she was being carried
into a dark room where he laid her on the bed, undressed her, and started kissing her.  Udang then went on top of AA
9

inserted his penis into her vagina. 10

After the incident, Udang went out to report for duty as barangay tanod while AAA remained inside his house as she
weak to move.  11

One (1) year and three (3) months after, in December 2003, AAA, who by then was already 13 years old, again had s
at Udang's house. This time, she was with Bienvinido, Jr. and Udang himself. When AAA felt sleepy, she went into on
rooms inside the house.   While AAA was lying in bed, Udang, who had followed her into the room, went on top of he
12

undressed her, and inserted his penis into her vagina until he ejaculated.   After having sexual intercourse with AAA,
13

out to report for duty as barangay tanod. AAA, too tired, remained lying in bed.  14

On April 14, 2004, AAA had herself physically examined by Dr. Revelo at the Northern Mindanao Medical Center in C
Oro City. Dr. Revelo found that AAA had hymenal lacerations in the 4, 7, and 10 o'clock positions,   as well as "excor
15

reddish superficial scratched marks between her thighs and genitalia.   According to Dr. Revelo, these lacerations "c
16

been caused by trauma, frictions, infections, and also sexual intercourse."  Although in AAA's case, the hymenal lace
17

were old and already healed. 18

The defense presented as witnesses Udang and his daughter, Betty. Monera Gandawali (Gandawali) and Emirald Or
(Orcales), fellow inmates of AAA at the Cagayan de Oro City Jail, also testified in Udang's defense. Their testimonies
following version of the facts.

Udang's daughter, Betty, denied drinking with AAA in September 2002. She also belied the claim that her father, Uda
brother, Bienvinido, Jr., had drinks with AAA in December 2003. However, she alleged that AAA once went to their ho
invite her to sniff some rugby, an offer which she refused. She maintained that AAA only wanted to get back at her fa
having AAA arrested after she was caught grappling with Betty's grandmother because the latter tried to stop AAA fro
rugby inside Udang's house. 19

After Udang caused the arrest of AAA for sniffing rugby,  AAA was detained at the Cagayan de Oro City Jail where s
20

Gandawali, and Orcales, became fellow inmates. 21

Gandawali testified that sometime in 2007, she had the chance to talk to AAA when the latter became anxious for rec
subpoena to testify in the cases she filed against Udang. During their conversation, AAA disclosed that she was neve
raped by Udang and that it was actually her stepfather who wanted to implicate him.  22

For her part, Orcales testified that she did not know Udang personally. She claimed that she only knew Udang when
divulged her desire to write to Udang and ask for his forgiveness. AAA likewise disclosed to Orcales that it was not U
security guard who had raped her and that it was AAA's mother who had forced her to testify against Udang in retalia
arrest for sniffing rugby. 23

In his defense, Udang denied ever raping AAA. He testified that he was at home with his mother and other siblings at
the alleged incident in September 2002. As for the alleged second incident in December 2003, Udang claimed that he
at home with his mother and siblings, Susan Udang and Cito Udang. He asserted that at 9:00 p.m., he reported for d
barangay tanod with his colleagues, Ruel Labis and Carlo Banianon. Udang saw no reason for AAA to falsely charge
rape since no animosity existed between them.  24

Branch 22, Regional Trial Court, Cagayan de Oro City found for the prosecution and convicted Udang of rape under
A(1) of the Revised Penal Code,   instead of sexual abuse under Section 5(b) of Republic Act No. 7610.  It ratiocinat
25 26

while the allegations in the first and second Informations satisfied the elements of rape under the first and third parag
Article 266-A, respectively, the charges can only be one (1) for rape under the first paragraph of Article 266-A becaus
accused cannot be prosecuted twice for a single criminal act." 27

The trial court found that the prosecution "indubitably established"  Udang's act of raping AAA since she "categorical
28

narrated"  how he took advantage of her while she was intoxicated and that had she resisted his advances, she wou
29

mauled by Betty. That AAA was raped was also supported by Dr. Revelo's finding of hymenal lacerations and excoria
AAA's thighs and genitalia.  30

The trial court did not give credence to Udang's defense of denial and alibi, stating that he could have requested his f
members and fellow barangay tanods, who were allegedly with him at the time of the incidents, to corroborate his tes
that he failed to do so. Without the corroborating testimony of these alleged companions, his testimony was, for the tr
"self-serving and unworthy to be believed." 31

The trial court likewise discounted Gandawali's and Orcales' testimonies for being hearsay.  As for Betty, the trial cou
32

testimony "bare"  and "unsupported by evidence."

33 34

In the Regional Trial Court March 12, 2012 Joint Decision,  Udang was sentenced to suffer the penalty of reclusion p
35

both counts of rape under the first paragraph of Article 266-A of the Revised Penal Code. He was also ordered to pay
indemnity, moral damages, and exemplary damages. The dispositive portion of this Decision read:

WHEREFORE, the foregoing premises considered[,] judgment is hereby rendered finding the accused BIENVINIDO
SEVILLA:

1. GUILTY beyond reasonable doubt of the crime of rape as defined and penalized under Article 266-A, Par. 1 of the
Penal Code in FC-Criminal Case No. 2006-140 and is hereby sentenced to suffer imprisonment of reclusion perpetua
"AAA" ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages and ₱30,000.00 as exemplary damages.

2. GUILTY beyond reasonable doubt of the crime of rape as defined and penalized under Article 266-A, Par. 1 of the
Penal Code in FC-Criminal Case No. 2006-141 and is hereby sentenced to suffer imprisonment of reclusion perpetua
"AAA" ₱50,000.00 as civil indemnity, ₱50,000.000 as moral damages and ₱30,000.00 as exemplary damages.

SO ORDERED.  (Emphasis in the original)

36

Udang appealed before the Court ·of Appeals, maintaining that he did not rape AAA. He also claimed that the judge w
the Decision, Judge Richard D. Mordeno (Judge Mordeno), was not the judge who personally heard the witnesses te
was not able to observe their demeanor during trial.  Udang argued that Judge Mordeno, therefore, was not in the po
37

on the credibility of AAA, given her "unbelievable story"  of rape.

38

Udang emphasized that AAA's testimony was not credible for if she was allegedly raped in his house in September 2
would not have gone to the same house to have drinks with her supposed rapist a year after, in December 2003, on t
being raped again.  He highlighted AAA's ill motive against him for having caused her detention in the Cagayan de O
39

for sniffing rugby in his house.  Finally, he emphasized that Dr. Revelo's testimony established that the lacerations fo
40

s genitalia could have been caused by trauma other than rape. 41

In its ruling, the Court of Appeals found that although Judge Mordeno was not the one who conducted trial, Udang's g
nonetheless proven beyond reasonable doubt based on the records of the case and AAA's "categorical, convincing a
consistent" testimony.  42

That AAA returned to Udang's house a year after she was allegedly raped was, for the Court of Appeals, not as bizar
would make it appear. The Court of Appeals reasoned that "there is no standard form of behavior that can be expecte
victims after they have been defiled because people react differently to emotional stress." 43

Finally, the Court of Appeals rejected Udang's claim that AAA charged him with rape as vengeance for her arrest for
rugby. It explained that "ill motives become inconsequential if there is an affirmative and credible declaration from the
which clearly established the liability of the accused."
44

Thus, the Court of Appeals affirmed the trial court Decision in toto and dismissed Udang's appeal in its October 9, 20
Decision,  the dispositive portion of which read:
45

WHEREFORE, premises considered, the appeal is DISMISSED. The March 12, 2012 Joint Decision of the Regional
10th Judicial Region, Branch 22 of Cagayan de Oro City in FC Criminal Case Nos. 2006-140 and 2006-141 is hereby
AFFIRMED in toto.

SO ORDERED.  (Emphasis in the original)

46

The case was brought on appeal before this Court through a Notice of Appeal filed on October 23, 2013.  In its Febru
47

2014 Resolution,  this Court directed the parties to file their respective supplemental briefs.
48

In their respective manifestations, the Office of the Solicitor General,  representing the People of the Philippines, and
49

appellant U dang  requested this Court to treat their appeal briefs filed before the Court of Appeals as their appeal br
50

this Court. This Court noted the parties' respective manifestations in its July 7, 2014 Resolution  and the case was co
51

submitted for decision.

Udang denies ever raping AAA and maintains his innocence, just as he did before the Court of Appeals. For him, AA
credible witness and her story of rape is unbelievable. He claims that AAA should not have returned to his house a ye
alleged first incident to have drinks with him and his son, Bienvinido, Jr., had he really raped her. He also emphasizes
rape charges were made only after he caused AAA's arrest for sniffing rugby in his house. He points out how two (2)
fellow inmates in the Cagayan de Oro City Jail, Gandawali and Orcales, even attested to his innocence based on AA
confession that he did not rape her. Thus, the accused prays for his acquittal.

In its Brief for the Appellee,   the Office of the Solicitor General argues that Udang was correctly convicted of two (2)
52

rape punished under Article 266-A(l) of the Revised Penal Code. It claims that "testimonies of child-victims of rape ar
given full weight and credence"  because "a girl of tender years,"  like AAA at the time of the reported incidents, "is u
53 54

impute to any man a crime so serious as rape, if what she claims is not true."  It adds that "when a woman, more so
55

a minor, says she has been raped, she says in effect all that is required to prove the ravishment." 56

The principal issue for this Court's resolution is whether or not accused-appellant, Bienvinido Udang, Sr. y Sevilla, wa
convicted of rape punished under the first paragraph of Article 266-A of the Revised Penal Code.
The appeal is affirmed with modification. Based on the Informations, Udang was charged with two (2) counts of sexua
punished under Section 5(b) of Republic Act No. 7610. Hence, he could only be convicted of sexual abuse under the
Informations filed in this case and not for rape under the Revised Penal Code. Furthermore, upon examination of the
presented, this Court finds Udang guilty of two (2) counts of sexual abuse. Thus, the .penalty erroneously imposed on
reclusion perpetua for each count of rape-should be reduced accordingly.

Udang attempts to raise doubt in his conviction because the judge who penned the trial court decision, Judge Morden
the judge who heard the parties and their witnesses during trial. For Udang, Judge Mordeno was in no position to rule
credibility of the witnesses, specifically, of AAA, not having observed the manner by which the witnesses testified.

Ideally, the same trial judge  should preside over all the stages of the proceedings, especially in cases where the con
57

acquittal of the accused mainly relies on the credibility of the witnesses. The trial judge enjoys the opportunity to obse
hand, "the aids for an accurate determination"  of the credibility of a witness "such as the witness' deportment and m
58

testifying, the witness' furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh,
or full realization of an oath. " 59

However, inevitable circumstances-the judge's death, retirement, resignation, transfer, or removal from office-may int
during the pendency of the case.  An example is the present case, where the trial judge who heard the witnesses, Ju
60

Francisco D. Calingin (Judge Calingin), compulsorily retired pending trial.  Judge Calingin was then replaced by Judg
61

who proceeded with hearing the other witnesses and writing the decision. Udang's argument cannot be accepted as
mean that every case where the judge had to be replaced pending decision would have to be refiled and retried so th
who hears the witnesses testify and the judge who writes the decision would be the same.  What Udang proposes is
62

impracticable.

As early as 1915, this Court ruled in United States v. Abreu  that in the absence of a law expressly prohibiting a judge
63

deciding a case where evidence was already taken, no such prohibition may be implied. In Abreu, Judge Jose C. Abr
Abreu) refused to resolve a case where the witnesses were already heard by the former presiding judge who had res
arguing that the witnesses were heard by a judge whose authority had been superseded by the then newly enacted A
2347.

In rejecting Judge Abreu's argument, this Court held that the legislature could not have intended to render void all the
undertaken by judges prior to the enactment of Act No. 2347.   According to this Court, Act No. 2347's purpose was "
64

change the personnel of the judges"  and that it specifically provided that all cases and judicial proceedings pending
65

sentence under the jurisdiction of the old courts shall be continued until their final decision.  66

Further, this Court explained that with the existence of the transcript of records, which are presumed to be a "comple
record of everything that transpires during the trial,"  there is "little reason for asserting that one qualified person may
67

to reach a just and fair conclusion from [the] record as well as another."  Thus, it compelled Judge Abreu to proceed
68

deciding the cases where evidence was already taken by the former presiding judge.

In People v. Court of First Instance of Quezon, Br. X,  a decision acquitting the accused was penned by a trial judge
69

detailed to Branch 10 of the Court of First Instance of Quezon. However, the decision was later on promulgated by a
judge who was subsequently appointed permanently. The People of the Philippines then opposed the judgment of ac
arguing that it was void for being promulgated without authority as the temporary detail of the judge who penned the
already expired.

This Court rejected the reasoning that "[j]urisdiction is vested in the court, not in the judges, so that when a complaint
information is filed before one branch or judge, jurisdiction does not attach to said branch of the judge alone, to the e
the others."  Jurisdiction having attached with the court, the judgment of acquittal was deemed valid, regardless of th
70

one judge wrote it and another promulgated it.

Applying the foregoing, the trial court decision convicting Udang is valid, regardless of the fact that the judge who hea
witnesses and the judge who wrote the decision are different. With no showing of any irregularity in the transcript of r
presumed to be a "complete, authentic record of everything that transpire[d] during the trial,"  sufficient for Judge Mo
71

have evaluated the credibility of the witnesses, specifically, of AAA.

II

However, this Court disagrees with the trial court's ruling that charging Udang with both rape, under Article 266-A(l) o
Revised Penal Code, and sexual abuse, under Section 5(b) of Republic Act No. 7610, would violate his right against
jeopardy.

The right against double jeopardy is provided in Article III, Section 21 of the Constitution:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a la
ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.  72

The first sentence of the provision speaks of "the same offense," which this Court has interpreted to mean offenses h
identical essential elements.   Further, the right against double jeopardy serves as a protection: first, "against a secon
73

prosecution for the same offense after acquittal";  second, "against a second prosecution for the same offense after
74

conviction";   and, finally, "against multiple punishments for the same offense."
75 76

Meanwhile, the second sentence of Article III, Section 21 speaks of "the same act," which means that this act, punish
and an ordinance, may no longer be prosecuted under either if a conviction or acquittal already resulted from a previo
prosecution involving the very same act.

For there to be double jeopardy, "a first jeopardy [must] ha[ve] attached prior to the second; . . . the first jeopardy has
validly terminated; and . . . a second jeopardy is for the same offense as that in the first." 77

A first jeopardy has attached if: first, there was a "valid indictment";  second, this indictment was made "before a com
78

court";   third, "after [the accused's] arraignment";  fourth, "when a valid plea has been entered";  and lastly, "when th
79 80 81

was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent."  Lack o
82

consent is required because the accused's consent to dismiss the case means that he or she actively prevented the c
proceeding to trial based on merits and rendering a judgment of conviction or acquittal.   In other words, there would
83

of the right against double jeopardy if consent was given by the accused. 84

To determine the essential elements of both crimes for the purpose of ascertaining whether or not there is double jeo
case, below is a comparison of Article 266-A of the Revised Penal Code punishing rape and Section S(b) of Republic
7610 punishing sexual abuse:

Sexual abuse under Section 5(b) of Republic

Rape under Article 266-A(1) of the Revised Act No. 7610
Penal Code
Article 266-A. Rape; When and How SECTION 5. Child Prostitution and Other
Committed. - Rape is committed- Sexual Abuse. - Children, whether male or
female, who for money, profit, or any other
1) By a man who shall have carnal consideration or due to the coercion or
 influence of any adult, syndicate or group,
knowledge of a woman under any of the indulge in sexual intercourse or lascivious
following circumstances: conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
a) Through intimidation; force, threat, or
The penalty of reclusion temporal in its medium
b) When the offended party 1s deprived of period to reclusion perpetua shall be imposed
reason or otherwise unconscious; upon the following:

c) By means of fraudulent machination or ....

grave abuse of authority[.]
(b) Those who commit the act of sexual
intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other
sexual abuse; Provided, That when the victim is
under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code,
for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12)
years of age shall be reclusion temporal in its
medium period[.] (Underscoring provided)
The provisions show that rape and sexual abuse are two (2) separate crimes with distinct elements. The "force, threa
intimidation" or deprivation of reason or unconsciousness required in Article 266-A(1) of the Revised Penal Code is n
as the "coercion or influence" required in Section 5(b) of Republic Act No. 7610. Consent is immaterial in the crime of
abuse because "the [mere] act of [having] sexual intercourse ... with a child exploited in prostitution or subjected to ...
abuse"  is already punishable by law. However, consent exonerates an accused from a rape charge as exhaustively
85

in Malto v. People:86

VIOLATION OF SECTION 5 (B), ARTICLE III OF RA 7610 AND RAPE ARE SEP ARA TE AND DISTINCT CRIMES

Petitioner was charged and convicted for violation of Section 5 (b), Article III of RA 7 610, not rape. The offense for w
convicted is punished by a special law while rape is a felony under the Revised Penal Code. They have different elem
two are separate and distinct crimes. Thus, petitioner can be held liable for violation of Section 5 (b), Article III of RA
despite a finding that he did not commit rape.

CONSENT OF THE CHILD IS IMMATERIAL IN CRIMINAL CASES INVOLVING VIOLATION OF SECTION 5, ARTI
RA 7610

Petitioner claims that AAA welcomed his kisses and touches and consented to have sexual intercourse with him. The
in these acts out of mutual love and affection. But may the "sweetheart theory" be invoked in cases of child prostitutio
sexual abuse prosecuted under Section 5, Article III of RA 7610? No.

The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent o
It operates on the theory that the sexual act was consensual. It requires proof that the accused and the victim were lo
that she consented to the sexual relations.

For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA 7610, the sweetheart defen
unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexua
intercourse with another person.

The language of the law is clear: it seeks to punish [t]hose who commit the act of sexual intercourse or lascivious con
child exploited in prostitution or subjected to other sexual abuse.

The language of the law is clear: it seeks to punish

[t]hose who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjecte
sexual abuse.

Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610. The mere
having sexual intercourse or committing lascivious conduct with a child who is exploited in prostitution or subjected to
abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed.

A child cannot give consent to a contract under our civil laws. This is on the rationale that she can easily be the victim
she is not capable of fully understanding or knowing the nature or import of her actions. The State, as parens patriae,
the obligation to minimize the risk of harm to those who, because of their minority, are as yet unable to take care of th
fully. Those of tender years deserve its protection.

The harm which results from a child's bad decision in a sexual encounter may be infinitely more damaging to her than
business deal. Thus, the law should protect her from the harmful consequences of her attempts at adult sexual behav
reason, a child should not be deemed to have validly consented ·to adult sexual activity and to surrender herself in th
ultimate physical intimacy under a law which seeks to afford her special protection against abuse, exploitation and dis
(Otherwise, sexual predators like petitioner will be justified, or even unwittingly tempted by the law, to view her as fair
vulnerable prey.) In other words, a child is presumed by law to be incapable of giving rational consent to any lasciviou
sexual intercourse.

This must be so if we are to be true to the constitutionally enshrined State policy to promote the physical, moral, spirit
intellectual and social well-being of the youth. This is consistent with the declared policy of the State

[T]o provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, an
conditions prejudicial to their development; provide sanctions for their commission and carry out a program for preven
deterrence of and crisis intervention. in situations of child abuse, exploitation, and discrimination.

as well as to

intervene on behalf of the child when the parents, guardian, teacher or person having care or custody of the child fail
unable to protect the child against abuse, exploitation, and discrimination or when such acts against the child are com
the said parent, guardian, teacher or person having care and custody of the same.

This is also in harmony with the foremost consideration of the child's best interests in all actions concerning him or he

The best interest of children shall be the paramount consideration in all actions concerning them, whether undertaken
or private social welfare institutions, courts of law, administrative authorities, and legislative bodies, consistent with th
of First Call for Children as enunciated in the United Nations Convention on the Rights of the Child. Every effort shall
to promote the welfare of children and enhance their opportunities for a useful and happy life.  (Emphasis in the origi
87

omitted)

People v. Abay  -insofar as it ruled that charging an accused with both rape, under Article 266-A(1) of the Revised Pe
88

and sexual abuse, under Section S(b) of Republic Act No. 7610, violates his or her right against double jeopardy  - m 89
therefore be abandoned.  As held in Nierras v. Dacuycuy:
90 91

[A] single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between th
of an offense in one law and another law as in the case at bar there will be no double jeopardy because what the rule
jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated prosecution for the same ac
prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of informa
not itself give rise to double jeopardy.92

In People v. Judge Relova:  93

[T]he constitutional protection against double jeopardy is not available where the second prosecution is for an offense
different from the offense charged in the first or prior prosecution, although both the first and second offenses may be
upon the same act or set of acts. 94

The only time that double jeopardy arises is when the same act has already been the subject of a previous prosecutio
law or an ordinance. This is not the situation in the present case.

All told, the trial court erred in ruling that prosecuting an accused both for rape, under Article 266-A(1) of the Revised
Code, and sexual abuse, under Section 5(b) of Republic Act No. 7610, violates his or her right to double jeopardy.

III

Moreover, contrary to the trial court's determination, the Informations actually charged Udang with sexual abuse, und
5(b) of Republic Act No. 7610, and not with rape, under Article 266-A(l) of the Revised Penal Code.

Based on the Informations, the charge against Udang was "child abuse,"  defined in Section 3 of Republic Act No. 76
95

maltreatment, whether habitual or not, of [a] child" and includes "any act by deeds or words which debases, degrades
demeans the intrinsic worth and dignity of a child as a human being." The allegations in the Informations stated that U
"sexually abuse[ d]"  AAA by having sexual intercourse with her while she was intoxicated, thus, "debas[ing], degrad[
96

demean[ing] the intrinsic worth of AAA. "  While the Informations stated that the acts were "[c]ontrary to and in [v]iola
97

Article 266-A in relation to Sec. 5 (b) of R.A. 7610,"  the factual allegations in the Informations determine the crime be
98

charged. 99

Given that the charges against Udang were for sexual abuse, this Court examines whether or not the elements of sex
under Section 5(b) of Republic Act No. 7610 are present in this case. Section 5(b) of Republic Act No. 7610 reads:

SECTION 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, o
consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or las
conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

....

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subje
other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prose
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or
conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) y
shall be reclusion temporal in its medium period[.]
To wit, the elements of sexual abuse are: first, "the accused commits the act of sexual intercourse or lascivious
conduct";   second, "the said act is performed with a child exploited in prostitution";   and, finally, that "the child, whe
100 101

female, is below 18 years of age." 102

All the elements of sexual abuse are present in this case.

As an adult and the father of AAA's friend, Betty, Udang had influence over AAA, which induced the latter to have drin
on have sexual intercourse with him. AAA, born on May 20, 1990,   was 12 and 13 years old when the incidents hap
103

following transcript of stenographic notes shows AAA's "categorical, convincing and consistent"  testimony as to how
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sexually abused her in September 2002:

Q. In September, 2002 AAA, what unusual incident that happened between you and the accused? A. Yes.

Q. What is that AAA?

A. We are drinking in their house.

Q. You are saying in the house of Bienvenido Udang, Sr.?

A. Yes.

Q. Where was it located?

A. We are neighbors.

Q. So, in crossing Lumbia, Cagayan de Oro City?

A. Yes.

Q. And you said that you were drinking, what were you drinking in the house of B[ie]nvenido Udang, Sr.?

A. Tanduay.

Q. And who were your companions, if any, at that time?

A. Betty, myself and Bienvenido, Jr.

....

Q. So, how many Tanduay bottles were you really drinking in September, 2002?

A. Five.

Q. What happened next while you were in the house of the accused?

A. They let me drink until I was drunk and carried me to the room.
Q. And when you were carried to the room, what happened next?

A. Then he undressed me.

Q. Let us clarify this, who carried you to the room?

A. Bienvenido Udang, Sr.

Q. When he carried you to the room, you said you were undressed, who undressed you?

A. Bienvenido Udang, Sr.

Q[.] And what happened next?

A. He kissed me and then went on top of me.

Q. And when he was on top of you, what, if any, was your position then?

A. I was lying down.

Q. By the way, you said that you were undressed at that time, AAA, so at that time you had no upper garments?

A. No more.

Q. How about your lower garment?

A. No more.

Q. How about Bienvenido Udang, Sr., what was the state of his dress?

A. I could not remember because it was already night and it was dark.

Q. When he went on top of you, what was the state of his dress at that time?

A. I did not notice.

Q. When Bienvenido Udang[,] Sr. went on top of you while you were lying down, what was Bienvenido Udang, Sr. do

A. I am shy.

Pros. Sia-Galvez:

We would like to manifest at this juncture, your honor, that the witness is hesitant in answering [the] question because
feeling of embarrassment, your honor. 1âwphi1

(To witness) AAA, would you want your mother inside this court room or we will have her stay outside this court room
A. She will stay.

Q. Can we continue, AAA?

A. Yes.

....

Q. Let us go back, when Bienvenido Udang[,] Sr. was on top o[f] you and you were lying down, what happened next?

A. He inserted his penis on my vagina.

....

Q. So, you felt [his] penis entering your vagina?

A. Yes.

Q. And how many times, if any, did he do that [i]n September, 2002?

A. Only once.  105

As for the sexual abuse in December 2003, AAA testified:

Q. In December, 2003, AAA, what incident, if any, happened between you and the accused?

A. Yes, there was.

Q. What incident was that?

A. The same thing, we had a drinking session with Bienvenido Udang, Sr., and Jr.

Q. And when was this happened?

A. In the house

....

Q. You said that you were drinking in the house of the accused, what were you drinking then?

A. Tanduay

Q. And you said it happened again, where did it happened (sic)?

A. In their house, in a room.

....
Q. And when you were inside the room, what happened next?

A. I was lying down and after a while, they went inside.

Q. You are referring to?

A. Bienvenido Udang, Sr.

Q. And when they were inside the room, what happened next?

A. The same thing, he undressed me and inserted his penis into my vagina?

Q. How many times?

A. Until he had an ejaculation.  106

This Court finds AAA credible not because of the generalization that she was a child of tender years incapable of fabr
story of defloration but because of her categorical narration of her experience and her straightforward explanation tha
intimidated by Betty to have drinks with her father. Thus, she was compelled to return to the accused's house even a
raped. AAA testified that Betty, her "friend," "sold"  her to Udang; Betty, who was taller than AAA, even threatened to
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had she resisted:

Q. After the September, 2002 incident, did you tell any person about the incident?

A. No, I did not tell it to anyone because if I tell, his child will maul me.

Q. And after the said incident, you still went back to their house, is that correct?

A. Yes, because his child wanted me to go.

Q. And you were drinking Tanduay with the accused.

A. Yes, because if [I] will not drink, his child Betty will maul me.

Q. Was (sic) this Betty already mauled you?

A. Yes, because whenever she asked me to buy cigarette, she maul (sic) me because she was taller than me before.

To this Court, Betty's threat of violence was enough to induce fear in AAA.

AAA's delay in reporting the incidents did not affect her credibility. Delay is not and should not be an indication of a fa
charge because, more often than not, victims of rape and sexual abuse choose to suffer alone and "bear the ignomin
of their experience.   Here, AAA would not have revealed the incidents had she not been interviewed by the police w
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was arrested for sniffing rugby:

Q. To whom for the first time did you reveal these two incidents that happened to you?

A. Only when Bienvenido Udang, Sr. ha[d] me arrested.

Q. Why did Bienvenido Udang, Sr. have you arrested?

A. Because his child let me used to sniff "rugby".

Q. What is the name of that child?

A. Betty Udang.

Q. Do you mean to say that you also use "rugby"?

A. No, I am not using "rugby", but I used it for the first time when his child let me used then (sic).

Q. Were you, in fact, being arrested (sic) at that time when Bienvenido Udang, Sr. have you arrested?

A. Yes.

Q. Who arrested you?

A. I was arrested by the police and I told the police about the incident because I wanted to go out but the police need
signature in order for me to go out.

Q. Whose signature is needed?

A. Bienvenido Udang, Sr.

Q. How come those two incidents of sexual abuse by Bienvenido Udang, Sr.

A. I reported the incidents to the police because they interviewed me.  110

With AAA's categorical testimony, the prosecution discharged its burden of proving Udang's guilt beyond reasonable
has made a prima facie case for two (2) counts of sexual abuse against him. In other words, the prosecution presente
"amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant
conviction."   The burden of evidence then shifted to the defense to counter the prosecution's prima facie case. Expl
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difference between "burden of proof' and "burden of evidence," this Court in Bautista v. Sarmiento  said:112

When a prima facie case is established by the prosecution in a criminal case ... the burden of proof does not shift to t
It remains throughout the trial with the party upon whom it is imposed-the prosecution. It is the burden of evidence wh
from party to party depending upon the exigencies of the case in the course of the trial. This burden of going forward
evidence is met by evidence which balances that introduced by the prosecution. Then the burden shifts back.   (Cita
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Unfortunately Udang failed to present evidence sufficient to counter the prosecution's prima facie case against him.

To destroy AAA's credibility, Udang capitalizes on the fact that he was charged only after he had AAA arrested for sn
However, given AAA's affirmative and credible testimony, Udang's allegation of ill motive is deemed inconsequential.

While prosecution witness Dr. Revelo testified that the lacerations found in AAA's genitalia could have been "introduc
operation"  aside from sexual intercourse, Udang had nothing but denials and alibis as defenses. If, as Udang testifie
114

with his mother, siblings, and some barangay tanods during the alleged incidents, he could have presented them as w
corroborate his testimony, but he did not. Neither is Betty's testimony that Udang never had drinks with AAA sufficien
her father. Udang's and Betty's testimonies are "self-serving"   and were correctly disregarded by the trial court.
115

As correctly held by the trial court and by the Court of Appeals, the testimonies of Gandawali and Orcales, AAA's fello
at the Cagayan de Oro City Jail, were hearsay, hence, inadmissible in evidence.   This is because Gandawali and O
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no personal knowledge of the incidents as they were not there when the incidents happened.

In sum, this Court is morally convinced that Udang committed two (2) counts of sexual abuse under Section 5(b) of R
No. 7610, with each count punishable by reclusion temporal in its medium period to reclusion perpetua. Applying the
Indeterminate Sentence Law  and absent any mitigating or aggravating circumstance in the present case, the maxim
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imposable penalty for each count should be the penalty prescribed by law in its medium period   which is reclusion te
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its maximum period ranging from 17 years, four (4) months, and one (1) day to 20 years.   On the other hand, the mi
119

of the imposable penalty shall be the next penalty lower in degree than that prescribed by law which is prision mayor 
medium period to reclusion temporal in its minimum period. This minimum term ranges from eight (8) years and one (
years and eight (8) months.  Udang shall serve the penalties successively. 
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Further, AAA is entitled to ₱50,000.00 as civil indemnity.   The award of moral damages is likewise retained at
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₱50,000.00.  However, the award of exemplary damages is deleted given the absence of any aggravating circumsta
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case.124

WHEREFORE, the appeal is DENIED. The Court of Appeals October 9, 2013 Decision in CA-G.R. CR HC No. 01032
is AFFIRMED with MODIFICATION. Bienvinido Udang, Sr. y Sevilla is found GUILTY beyond reasonable doubt of tw
counts of sexual abuse, under Section 5(b) of Republic Act No. 7610, and is sentenced to suffer the penalty of twelve
of prision mayor as minimum to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal as max
each count. Furthermore, the accused shall pay AAA ₱50,000.00 as civil indemnity and ₱50,000.00 as moral damage
count of sexual abuse, all amounts shall earn interest at the legal rate of six percent (6%) per annum from the finality
Decision until full payment. The award of exemplary damages is deleted.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice