GESMUNDO, C.J.

:
This Appeal by Certiorari[1] seeks to reverse and set aside the August
28, 2020 Decision[2] and the July 21, 2021 Resolution[3] of the Court of
Appeals (CA) in CA-G.R. CEB CR No. 03427. The CA affirmed with
modification the January 11, 2019 Decision[4] of the Regional Trial
Court, x x x xx x x xxxx (RTC), in Criminal Case No. R-PAL-17-2246-
CR, finding Pedro "Pepe" Talisay (petitioner) guilty of violation of
Section 5(b) of Republic Act (R.A.) No. 7610, otherwise known as the
Special Protection of Children Against Abuse, Exploitation and
Discrimination Act, committed against AAA.[5] The assailed CA
Decision modified the RTC Decision by amending the nomenclature
of the crime and the amount of damages awarded by the said trial
court.

The Antecedents

Petitioner was charged with Violation of Sec. 5(b) of R.A. No. 7610 in
an Information, the accusatory portion of which reads:

That on or about September 29, 2016, in x x x xx x x xxxx Leyte,

Philippines, and within the jurisdiction of this Honorable Court, the
accused, PEDRO "PEPE" TALISAY; with deliberate intent and moved
by lewd design, taking advantage of the minority of his 15-year old
victim, [AAA], and by means of force, threat and intimidation, did
then and there, willfully, unlawfully, and criminally commit acts of
lasciviousness upon her, by kissing her on her cheeks, removing her
pants and panty, and satisfying [his] sexual desire by placing his
penis outside of her vagina, which acts are constitutive of sexual
abuse which debases, degrades or . demeans her intrinsic worth and
dignity as a human being, to the damage and prejudice of the said
victim.

CONTRARY TO LAW.[6]
During arraignment on November 3, 2017, petitioner pleaded not
guilty to the offense charged.[7] After pre-trial was terminated, trial on
the merits ensued.[8]

Version of the Prosecution

The prosecution presented AAA, the private complainant, whose

testimony was summarized by the CA, as follows:

On September 29, 2016 at around 1:00 o'clock in the afternoon, while

the victim was fetching water from the faucet of "Kapitana" located
in x x x xx x x xxxx Leyte, the [appellant] followed and caught her
[a]nd dragged her to the pig pen.

Thereat, [appellant] first kissed both che[e]ks of the victim causing

her to tremble [in] fear. Thereafter, [appellant] removed totally his
clothes thereby exposing his penis and whole body which the victim
saw. Then [appellant] removed the victim's clothes, shortpants (sic)
and panty, and let her stand. While both of them were in standing
position and both naked, [appellant], without the victim's consent
and against her will, placed his penis on top/outside of her vagina.
The victim resisted, pushed and shouted at the [appellant] not to do it
because her body was already shaking as she was being attacked by
her ailment - the epilepsy. But the [appellant] did not listen and just
continued with his lustful desire on the victim and did push and pull
movements. Then [appellant] wiped the victim's face and gave the
victim two (2) pieces of [P]100 bills with the instruction not to tell her
(victim['s]) mother that he ([appellant]) gave her money. Despite
[appellant's] instruction, the victim told her mother what happened
to her in the hands of [appellant].[9]
Version of the Defense

The defense presented petitioner, his wife x x x xx x x xxxx, and their

son x x x xx x x xxxx, as its witnesses.

As synthesized by the CA, the version of the defense is as follows:

On September 22, 2016, [appellant] and his wife x x x xx x x

xxxx were attending to their sari-sari store while their son x x x xx x x
xxxx was watching television. Then the victim and her younger sister,
who were outside of [appellant's] house, asked for water from the
[appellant]. [Appellant] gave the two children water which they
dr[a]nk. But after the victim dr[a]nk the water, she collapsed as she is
suffering from epilepsy. When the victim regained her consciousness,
she asked for food as she was hungry. Everytime (sic) the victim is
attacked by her ailment and after regaining consciousness, she would
always feel hungry. These facts are known in their place since the
victim was still young.

As the family of the [appellant] had no more food and because of

pity, x x x xx x x xxxx the wife of the [appellant], gave [P]200 to her
husband, and told him to give it to the victim and her younger sister
to which [appellant] did.

On September 28, 2016, [appellant], together with his wife, and the
the parents of the victim, were at the Office of the Punong Barangay
of x x x xx x x xxxx because of the complaint filed by [BBB], the
mother of the victim. [BBB] was under the belief that [appellant] did
something wrong to the victim that was why he gave [P]200.00 to the
victim. During the confrontation, the victim was asked by Brgy.
Chairman Rubilita Asuero if [appellant] touched and sexually abused
her to which the latter answered in the negative. [Appellant] reasoned
out that they gave money to the victim because he and his wife just
pitied them. Then Brgy. Chairman Asuero let the [appellant] signed
(sic) a "Kasarabutan" committing that he would no longer be giving
money to any child. The said document was also signed by the mother
of the victim, [BBB].

On September 29, 2016, at around 1:00 o'clock in the afternoon,

[appellant], [his] wife x x x xx x x xxxx, and son x x x xx x x xxxx were
just at home. On the said date, [appellant] and [his] wife attended
their store the whole day, from morning until afternoon while their
son x x x xx x x xxxx was watching television also the whole day.
Never that (sic) [appellant] left their house the whole day nor did they
take a nap or sleep. In the evening, [appellant] did not leave also their
house. Hence, the allegations of the victim that [appellant] sexually
abused her are not true.[10]
The RTC Ruling

In its January 11, 2019 Decision, the RTC gave more credence to
AAA's testimony than petitioner's twin defenses of denial and alibi. It
held that AAA's testimony was given in a "candid, straightforward,
firm and unwavering"[11] manner. Also, the delay of two days in
reporting the incident to her mother and the alleged inconsistencies
in the testimony of AAA were insufficient to deflate her credibility.
[12]
The dispositive portion of the decision reads:

WHEREFORE, premises considered, this Court finds the

accused GUILTY beyond reasonable doubt of the crime of acts of
lasciviousness in relation to Republic Act 7610 and is hereby
sentenced him to suffer the penalty of 14 years and 8
months of reclusion temporal as minimum to 20 years of reclusion
temporal as maximum and ordered to pay the
victim [P]20,000.00 as civil indemnity, [P]15,000.00 as moral
damages and a fine of [P]15,000.00.

SO ORDERED.[13]
Aggrieved, petitioner appealed said RTC Decision before the CA.

The CA Ruling

In its August 28, 2020 Decision, the CA affirmed with modification

the ruling of the RTC. It held .that the prosecution successfully
established the elements of lascivious conduct and found AAA's
testimony credible because she was able to steadily recount
petitioner's immodest acts.[14] Moreover, the alleged inconsistencies in
AAA's testimony as to who were present at the place of the incident
and the exact date when the money was given, were trivial and do not
affect the central fact of the crime. The CA opined that AAA's
testimony was clearly consistent with the substantial aspects of the
crime, i.e., the identification of petitioner as the perpetrator and the
manner by which the crime was committed.[15]

The CA, however, held that the proper nomenclature of the offense
committed should be "Lascivious Conduct under Section 5(b) of R.A.
No. 7610" instead of "Acts of Lasciviousness in relation to Section
5(b) of R.A. No. 7610."[16] It likewise increased the amount of damages
in accordance with this Court's ruling in People v. Tulagan.[17] The
dispositive portion of the CA Decision reads:

WHEREFORE, the appeal is hereby DENIED. The Decision dated

January 11, 2019 of the Regional Trial Court, x x x xx x x xxxx Leyte in
Criminal Case No. R-PAL-17-2246-CR is hereby AFFIRMED WITH
MODIFICATION. Accused appellant Pedro "Pepe" Talisay is
found GUILTY beyond reasonable doubt of the crime of Lascivious
Conduct under Section 5 (b) of Republic Act No. 7610. He is hereby
sentenced to suffer the penalty of fourteen (14) years and eight (8)
months of reclusion temporal, as minimum, to twenty (20) years
of reclusion temporal, as maximum. He is likewise ORDERED to
pay AAA the amount of Fifty Thousand Pesos ([P]50,000.00) as civil
indemnity, Fifty Thousand Pesos ([P]50,000.00) as moral damages,
and Fifty Thousand Pesos ([P]50,000.00) as exemplary damages. An
interest at the rate of 6% per annum on the monetary awards
reckoned from the finality of this Decision is likewise imposed.

SO ORDERED.[18] (Italics supplied)

Petitioner filed a Motion for Reconsideration[19] which the CA denied
in its July 21, 2021 Resolution. Unfazed, petitioner filed this petition
for review on certiorari under Rule 45 of the Rules of Court,
essentially raising the sole issue:

Whether the CA erred in affirming the decision of the RTC finding

petitioner guilty of lascivious conduct under Section 5(b) of R.A. No.
7610.
Petitioner argues that the testimony of AAA was incredible and
tainted with inconsistencies.[20] He claims that the prosecution was
not able to prove all the elements of lascivious conduct because the
element of force or coercion was lacking. Petitioner insists that AAA
did not manifest any resistance at the time of the incident.[21] Lastly,
petitioner asserts that even if the defense admitted the age of the
victim at the time of the commission of the crime, the presentation of
the birth certificate is still the best evidence to prove AAA's age. Thus,
AAA's age was not duly proven by competent evidence due to the non-
presentation of her birth certificate.[22]

In its Comment,[23] the People of the Philippines, as represented by

the Office of the Solicitor General (OSG), maintains that the issues
raised by petitioner are mere reiterations of his previous arguments.
[24]
It underscores that the minor inconsistencies in AAA's testimony
were due to the misleading questions propounded to her by the
defense counsel. The OSG emphasizes that AAA was empathic and
consistent in her assertion regarding petitioner's molestation of her in
the pigpen where she even suffered an epileptic episode.[25] It also
highlights that questions of fact cannot be raised by petitioner in a
petition for review on certiorari under Rule 45 of the Rules of Court.
[26]

The Court's Ruling

At the outset, it must be pointed out that the issue raised by petitioner
is clearly a question of fact which requires a review of the evidence
presented before the trial court. As a rule, a petition for review
on certiorari under Rule 45 covers only questions of law. Questions of
fact cannot be reevaluated and passed upon by this Court in the
exercise of its power to review. The distinction between questions of
law and questions of fact is well-settled. A question of law exists when
the doubt or difference centers on what the law is on a certain state of
facts. On the other hand, a question of fact exists if there is doubt on
the truth or falsity of the alleged facts. This being so, the findings of
fact of the CA are final and conclusive and this Court will not review
them on appeal.[27]

However, this rule is not iron-clad, and is subject to well-known

exceptions, such as when (1) the conclusion is grounded on
speculations, surmises, or conjectures; (2) the inference is manifestly
mistaken, absurd, or impossible; (3) there is grave abuse of
discretion; (4) the judgment is based on a misapprehension of facts;
(5) the findings of fact are conflicting; (6) there is no citation of
specific evidence on which the factual findings are based; (7) the
findings of absence of facts are contradicted by the presence of
evidence on record; (8) the findings of the CA are contrary to those of
the trial court; (9) the CA manifestly overlooked certain relevant and
undisputed facts that, if properly considered, would justify a different
conclusion; (10) the findings of the CA are beyond the issues of the
case; and (11) such findings are contrary to the admissions of both
parties.[28] However, this Court finds that petitioner failed to
substantiate his claim that the case falls under any of the exceptions.

In any event, the petition must still be denied for lack of merit.

In the present appeal, petitioner points out AAA's alleged lack of

credibility as a witness. Well-entrenched is the rule that the trial
courts' evaluation of the credibility of witnesses is entitled to the
highest respect and will not be disturbed on appeal considering that
the trial court was in a better position to decide such question, having
heard the witnesses themselves and observed their deportment and
manner of testifying during the trial. Accordingly, its findings on the
issue of credibility of witnesses and the consequent findings of fact
must be given great weight and respect on appeal, unless certain facts
of substance and value have been overlooked which, if considered,
might affect the result of the case.[29]

Here, both the RTC and the CA found AAA's testimony to be

straightforward and candid. This Court sees no cogent reason to
depart from the foregoing rule since petitioner failed to demonstrate
that the RTC and the CA overlooked, misunderstood, or misapplied
facts of weight and substance that would alter the assailed decision.
Moreover, this Court, in the past, had given full weight and credence
to the testimony of child victims whose "[y]outh and immaturity are
generally badges of truth and sincerity."[30]

Petitioner's lascivious conduct

According to AAA, petitioner placed his penis on top of her vagina.

[31]
Petitioner was charged with Acts of Lasciviousness under Sec. 5(b)
of R.A. No. 7610 for unlawfully satisfying his bestial desires by placing
his penis upon AAA's vagina through coercion. However, the CA
changed the nomenclature of the crime from Acts of Lasciviousness to
Lascivious Conduct for the same factual allegations and under the
same penal law.

For clarity, this Court deems it proper to determine whether the act of
petitioner in placing his penis on top of the victim's vagina constitutes
as either consummated rape, attempted rape, acts of lasciviousness,
or lascivious conduct under R.A. No. 7610.

In People v. Puertollano,[32] this Court held that the mere touching by

the male's organ of the labia of the pudendum of the woman's private
parts is sufficient to consummate rape. Full or deep penetration of the
victim's vagina is not necessary to consummate sexual intercourse;
even the slightest penetration of the male organ into the female sex
organ is sufficient to warrant conviction for consummated rape.[33]

However, there must be sufficient and convincing proof that the penis
indeed touched the labias or slid into the fomale organ, and not
merely stroked the external surface thereof, for an accused to be
convicted of consummated rape. Since the labias, which are required
to be "touched" by the penis, are by their natural situs or location
beneath the mons pubis or the vaginal surface, to touch them with the
penis is to attain some degree of penetration beneath the surface,
hence, the conclusion that touching the labia majora or the labia
minora of the pudendum constitutes consummated rape.
[34]
Accordingly, a grazing of the surface of the female organ or
touching the mons pubis of the pudendum is not sufficient to
constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of
the pudendum by the penis, there can be no consummated rape to
speak of; at most, the crime committed can only be attempted rape, if
not acts of lasciviousness.[35]

Under Article 6, in relation to Art. 335, of the Revised Penal Code

(RPC), rape is attempted when the offender commences the
commission of the rape directly by overt acts; and does not perform
all the acts of execution which should produce the crime of rape by
reason of some cause or accident other than his own spontaneous
desistance.

In People v. Campuhan[36] (Campuhan), this Court ruled that therein

accused was guilty only of attempted rape and not consummated rape
because the prosecution failed utterly to discharge its onus of proving
that the accused's penis was able to penetrate the victim's vagina
however slight. The Court observed that the possibility of penetration
is belied by the victim's own assertion that she resisted the accused's
advances by putting her legs close together. It is noteworthy that in
cases where penetration was not fully established, this Court had
anchored its conclusion that rape nevertheless was consummated on
the victim's testimony that she felt pain, or the medico-legal finding
of discoloration in the inner lips of the vagina, or that the labia
minora was already gaping with redness, or the hymenal tags were no
longer visible.[37] None of the foregoing was shown in that case. Thus,
in Campuhan, the crime committed was only attempted rape.

In Cruz v. People,[38] this Court explained that "the intent of the

offender to lie with the female defines the distinction between
attempted rape and acts of lasciviousness. It was clarified that
attempted rape requires such intent while acts of lasciviousness does
not. Only the direct overt acts of the offender establish the intent to
lie with the female. The Court declared, however, that mere climbing
on top of a naked female does not constitute attempted rape without
proof of his erectile penis being in a position to penetrate the female's
vagina."[39]

In the recent case of People v. Agao[40] (Agao), the Court definitely

resolved when can the touching of the female organ by the male organ
be considered as either consummated rape, attempted rape, or act of
lasciviousness, to wit:

Guided by the foregoing anatomical description, the Court now

reiterates; even as it clarifies, that rape of a female victim by a male
person through penile penetration reaches the consummated stage as
soon as the penis penetrates the cleft of the labia majora, also known
as the vulval or pudendal cleft, or the fleshy outer lip of the vulva, in
even at the slightest degree. Simply put, mere introduction, however
slight, into the cleft of the labia majora by a penis that is capable of
penetration, regardless of whether such penile penetration is
thereafter fully achieved, consummates the crime of rape.[41]

xxxx

Given the foregoing, for as long as the prosecutorial evidence is able

to establish that the penis of the accused penetrated the vulval cleft or
the cleft of the labia majora (i.e., the cleft of the fleshy outer lip of the
victim's vagina), however slight the introduction may be, the
commission of rape already crossed the threshold of the attempted
stage and into its consummation. On the factual appreciation of
whether this minimum threshold genital contact is obtained in an
allegation of rape, the same is rightly left to the trial court's astute
assessment from the entirety of the body of proof presented in each
case.[42]

xxxx

Further to the instant clarification, in the converse; the Court also

clarifies that when there is no touching by the penis of the vulval cleft
of the victim's genetalia in a case of rape through penile penetration,
there can be no finding of consummated rape but only attempted rape
or acts of lasciviousness, as the case may be, with the distinctions
determinable based on various indications that may reveal either the
absence or presence of "intent to lie" on the part of the accused, which
include the presence of an erect penis.[43] (Emphases and citations
omitted)
Accordingly, pursuant .to Agao, there is consummated rape when the
penis penetrates the cleft of the labia majora, also known as the
vulval or pudendal cleft, or the fleshy outer lip of the vulva, even in
the slightest degree. Upon such slightest penetration of the penis to
the cleft of the labia majora, the commission of rape already crosses
the threshold of the attempted stage into its consummation. In
contrast, when there is no touching of the penis of the vulval cleft of
the labia majora of the victim, there can be no finding of
consummated rape. Rather, it is considered either only as attempted
rape or acts of lasciviousness, as the case may be, with the
distinctions determinable based on various indications that may
reveal either the absence or presence of "intent to lie" on the part of
the accused.

In other words, when the penis of the offender merely strokes the
external surface of the victim's vagina, the same cannot be considered
as consummated rape. Rather, it can be classified only as either
attempted rape or acts of lasciviousness. It is considered attempted
rape if it can be established that the offender had the criminal intent
to lie with the victim. If such intent to lie or have carnal knowledge is
not established, then the crime committed is only acts of
lasciviousness under the RPC, or lascivious conduct, if it falls under
Sec. 5(b) of R.A. No. 7610.

In Agao, the Court also stated that on the factual appreciation of

whether or not this minimum threshold genital contact is obtained in
an allegation of rape, the same is left to the trial court's astute and
insightful assessment from the entirety of the evidence proffered in
each case.[44]

In the instant case, the testimony of AAA demonstrates that

petitioner placed his penis outside her vagina while they were
standing up and made a push and pull movement:

Pros. Enage:
xxxx
You mentioned that on that day of September 29, 2016, the
Q: accused kissed you and dragged (sic) committed the Acts of
Lasciviousness?
He kissed me my both cheeks. (Witness pointing to her both
A:
cheeks.)
xxxx
You were fetching [water] from the faucet of Kapitana,
Q:
what happened while fetching water?
He followed me that (sic) he removed his clothes and
A: placed his pennis (sic) on my vagina and made [push and
pull] movement.
Q: Who were then (sic) at that time?
A: Somebody followed at me and she was caught.
At the time, the accused kissed you, was it only you and the
Q:
accused who were present?
A: Yes, Sir, only 2 of us.
Q: Where in particular, where did this incident happened? (sic)
A: Above the pen of Kapitana.
xxxx
Q: Did I get you right that the accused removed his garments?
A: He removed his shortpants (sic) and brief and clothes.
Q: How did it (sic) removed, was it totally or just down it? (sic)
A: He removed totally.
Q: Did you see his pennis? (sic)
A: Yes, Sir.
Q: Did you see his whole body?
A: Yes, Sir.
Q: What did you do when the accused undressed himself?
He was there because I was already trembling. I was already afraid
A:
of him.
Q: Which comes first, the kissing or the removing his (sic) pants?
A: The (sic) first kissed me afterwards he removed his clothes.
Q: How about you, did he undressed? (sic)
Yes, he removed my clothes. And my shortpants (sic) and my
A:
underwear.
Q: She (sic) did he already removed your panty?
A: Yes, Sir, he removed my panty.
What were you wearing then at that time, shortpants (sic) or long
Q:
pants?
A: Shortpants (sic).
Did he remove all your shortpant (sic) or he just lowered by him?
Q:
(sic)
A: He removed all.
Q: You were standing when both of you were naked?
A: He let me standing (sic) and he was standing.
xxxx
So what happened after that (sic) the accused removed your pants
Q:
and the garments and you were naked?
He gave me 2 pcs. of [P]100.00 peso bill and said don't tell your
A:
mother. Anyway you are not intimidated.
When did he gave you [P]200.00, was it during the first kissing or
Q:
what?
In that day that he gave me money [P]200.00 and he said just
A:
accept it don't tell that to your money (sic).
Q: Was it on the same date or prior to the kissing, the day of kissing?
A: On that very date after he abused me and he gave me money.
Q: So what happened when both of you were naked?
He said that "Be" go home ahead and don't just tell your mother
A:
that I gave you money.
xxxx
Q: What did he do with his pennis (sic) if any?
He placed his pennis (sic) on top of my vagina. And then
A:
he made pushed (sic) and pulled (sic) movement.
Q: At that time, both of you were naked?
A: We were both naked.
When he did this when he placed his pennis (sic) outside your
Q:
vagina, were you both standing or were you lying on the ground?
A: We were both standing.
By the way, did you gave (sic) permission to the accused, to kissed
Q:
(sic) you?
A: No, Sir. He just kissed me.
Did he (sic) also gave permission to the accused to removed (sic)
Q:
your garments?
A: No, Sir, he just undressed me.
Did you also gave (sic) permission to the accused to put
Q:
his pennis (sic) out ide the vagina?
No, Sir. He just placed his pennis (sic) on top of my
A:
vagina.
In other words, you are saying to the Court that the accused did
Q:
this all this (sic) without your consent?
A: No, Sir. Without my consent.
Q: Did you shout?
I shouted to Pepe don't do it because my body was already
A:
shaking.
Q: Did [the] accused lessen (sic) to you?
A: Yes, Sir, he lessen (sic) to my shouted. (sic)
Even [when] you shouted (sic) did the accused continued (sic)
Q:
from the wrong doing?
A: Yes, Sir.
What happened after that, after he placed his pennis (sic) outside
Q:
your vagina, what happened after that?
A: Then he made push and pull movement.[45] (Emphases supplied)
Nowhere in the statement of AAA does it show, whether expressly or
impliedly, that petitioner's penis, although placed on top of her
vagina, touched either the labia majora or the labia minora of the
pudendum. AAA was asked thrice regarding how petitioner
committed the act of sexual molestation and she consistently
answered that petitioner only placed his penis on top of her vagina.
Thus, there can be no consummated rape as there was no slightest
penetration of the female organ.

Further, the jurisprudential guideposts to establish-carnal

knowledge, which were discussed in Agao, do not exist in this case.
Pursuant to Agao, these jurisprudential guideposts provide that when
the necessary genital contact is not explicitly described through the
testimony of the victim, whether minor or otherwise, courts can base
their appreciation of the genital contact on other aspects that would
similarly illustrate the occurrence and circumstance of penile
penetration. These guideposts which are appreciable in all rape cases
may reasonably find sharper import with respect to cases of rape
involving minor victims; especially in view of the inherent limitations
of the child witness' testimony. The courts are, therefore, enjoined to
exercise circumspection and use the following surrounding or
attendant circumstances to aid them in their appreciation of penile
penetration: (i) when the victim testifies that she felt pain in her
genitals; (ii) when there is bleeding in the same; (iii) when the labia
minora was observed to be gaping or has redness or otherwise
discolored; (iv) when the hymenal tags are no longer visible; or (v)
when the sex organ of the victim has sustained any other type of
injury.[46]

Here, the testimony of AAA does not demonstrate that any of the
abovementioned circumstances were present to imply that petitioner
had carnal knowledge of AAA. Again, at best the evidence established
that petitioner placed his penis outside the victim's genitals, without
any indication that there was the slightest penetration.

Neither can petitioner's act be considered as attempted rape. The

record is bereft of any showing that when petitioner placed his penis
on top of the victim's vagina, he had ultimate intent of having carnal
knowledge of AAA. As stated in Agao, one of the indications that an
accused had intent to lie with the victim in the crime of attempted
rape is when the perpetrator had an erect penis.[47]
In the case at bench, it does not appear that the direct overt acts of
petitioner establish the intent to lie with AAA. Instead, he completed
his lustful desire simply by placing his penis on top of the victim's
vagina and by doing a push and pull movement without any
indication that he had the intent to commit the slightest penetration
of the cleft of the labia majora.

Undoubtedly, the crime committed by petitioner is Lascivious

Conduct under Sec. 5(b) of R.A. No. 7610, which provides:

Section 5. Child Prostitution and Other Sexual Abuse. —

Children, whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
9onduct, 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:

xxxx

(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[.]
The elements of sexual abuse or lascivious conduct under Sec. 5(b) of
R.A. No. 7610 are as follows:

The accused commits the act of sexual intercourse or lascivious

(1)
conduct;
The said act is performed with a child exploited in prostitution or
(2)
subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age.[48]
Under Sec. 2(h) of the Implementing Rules and Regulations (IRR) of
R.A. No. 7610, lascivious conduct is defined as the intentional
touching, either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction of any
object into the genitalia, anus, or mouth, of any person, whether of
the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse, or gratify the sexual desire of any person,
bestiality, masturbation, lascivious exhibition of the genitals, or pubic
area of a person.[49]
The prosecution's evidence had sufficiently established the elements
of lascivious conduct under Sec. 5(b) of R.A. No. 7610. The evidence
confirms that petitioner committed lascivious acts against AAA, who
narrated that on September 29, 2016, petitioner dragged her to the
unused pigpen of "Kapitana" where he kissed her cheeks and
thereafter removed both his and AAA's clothes. Petitioner then placed
his penis on top of, and rubbed it against, her vagina. The victim even
suffered an epileptic seizure during the ordeal. Undoubtedly, the
foregoing overt acts of petitioner qualify as lascivious conduct under
Sec. 2(h) of the IRR of R.A. No. 7610.

Minority of the victim

Lastly, contrary to petitioner's claim, his express and clear admission

of the victim's minority during the pre-trial conference before the
RTC is conclusive proof of the victim's age.[50] Such admission by the
defense during pre-trial was never raised as an issue during trial.
In People v. XXX;[51] this Court reiterated the following guidelines in
appreciating age either as an element of the crime or as a qualifying
circumstance:

The Court laid down the following controlling guidelines in

appreciating age, either as an element of the crime or as a qualifying
circumstance:

In order to remove any confusion that may be engendered by the

foregoing cases, we hereby set the following guidelines in
appreciating age either as an element of the crime or as a qualifying
circumstance.

1. The best evidence to prove the age of the offended party is an

original or certified true copy of the certificate of live birth of such
party.

2. In the absence of a certificate of live birth, similar authentic

documents, such as baptismal certificate and school records which
show the date of birth of the victim, would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to

have been lost or destroyed or otherwise unavailable, the testimony, if
clear and credible, of the victim's mother or a member of the family
either by affinity or consanguinity who is qualified to testify on
matters respecting pedigree such as the exact age or date of birth of
the offended [party] pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought

to be proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought
to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is

sought to be proved is that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victim's mother or
relatives concerning the victim's age, the complainant's
testimony will suffice provided that it is expressly and
clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the
offended party. The failure of the accused to object to the testimonial
evidence regarding age shall not be taken against him.[52] (Emphasis
supplied).
It is undisputed that AAA was only 15 years old at the time of the
sexual molestation. During pre-trial, the defense made an express and
clear admission that the victim was only 15 years old at the time of the
alleged commission of the crime and for which reason, the
presentation of the Local Civil Registrar of Tobango, Leyte was
dispensed with.[53] This sufficiently constitutes as conclusive proof of
AAA's minority and age.

Coercion or
intimidation; denial
and alibi are weak
defenses

There is likewise no dispute that petitioner employed intimidation or

coercion in achieving his bestial desires. In Caballo v. People,[54] this
Court held that sexual intercourse or lascivious conduct under the
coercion or influence of any adult exists when there is some form of
compulsion equivalent to intimidation and it subdues the exercise of
the offended party's free will.[55]

As correctly observed by the CA, it appears from AAA's testimony that

petitioner dragged her to an unused pig pen, where he kissed her and
thereafter, removed her clothes; that she was already trembling as she
was afraid of him; that she did not give her consent for petitioner to
do anything to her and even shouted for petitioner to stop because
her body was already shaking due to epilepsy; and that she resisted
his sexual advances by pushing him. Still, petitioner simply ignored
her plea. Clearly, the lascivious conduct was done through force or
coercion.

Petitioner's bare denial and alibi cannot be given greater evidentiary

weight than AAA's testimony pointing to petitioner as the person who
sexually abused her. Denial, being self-serving, is inherently weak and
is. looked upon with great disfavor.[56] Also, while alibi can be
considered as a valid defense, the following elements must be alleged
and proven for such to be entitled to merit: (a) that the accused was
present at another place at the time of the perpetration of the crime,
and (b) that it was physically impossible for accused to be at the scene
of the crime during its commission. "Physical impossibility refers to
distance and the facility of access between the crime scene and the
location of the accused when the crime was committed. The accused
must demonstrate that he or she was so far away and could not have
been physically present at the crime scene and its immediate vicinity
when the crime was committed."[57] Here, petitioner miserably failed
to show that it was physically impossible for him to be at the scene of
the crime which was only a few meters from his home where he
claimed to have been staying when the incident happened.

Viewed in the light of the foregoing, there is no reason to deviate from

the similar findings of the RTC and the CA that the prosecution had
successfully established all the elements of Lascivious Conduct under
Sec. 5(b) of R.A. No. 7610.

Proper penalty

This Court, however, deems it proper to modify the imposable penalty

because the CA failed to apply the Indeterminate Sentence Law.

Considering that AAA was only 15-years old at the time of the
incident, the prescribed penalty is reclusion temporal in its medium
period to reclusion perpetua. In the absence of mitigating or
aggravating circumstances, the maximum term of the sentence shall
be taken from the medium period thereof, which is reclusion
temporal maximum. Moreover, notwithstanding the fact that R.A.
No. 7610 is a special law, the Indeterminate Sentence Law shall still
be applied. In applying its provisions, the minimum term shall be
taken from within the range of the penalty next lower in degree,
which is prision mayor in its medium period to reclusion temporal in
its minimum period.[58] Thus, petitioner shall suffer the indeterminate
sentence of eight (8) years and one (1) day of prision mayor, as
minimum, to seventeen (17) years; four (4) months, and one (1) day
of reclusion temporal, as maximum, for violation of Sec. 5(b) of R.A.
No. 7610.

As correctly applied by the CA, pursuant to People.v. Tulagan,[59] the

amount of civil indemnity, moral damages, and exemplary damages
awarded for "Lascivious Conduct under Section 5(b) of R.A. No.
7610," where the victim is a child below 18 years of age and the
penalty imposed is within the range of reclusion temporal medium, is
Fifty Thousand Pesos (P50,000.00) each. Further, as correctly held
by the CA, an interest at the rate of six percent (6%) per annum on
the monetary awards should be imposed and reckoned from the
finality of the judgment until said amounts are fully paid.

WHEREFORE, the Augusf28, 2020 Decision and July 21, 2021

Resolution of the Court of Appeals in CA-G.R. CEB CR No. 03427
are AFFIRMED with MODIFICATION. Petitioner Pedro "Pepe"
Talisay is GUILTY beyond reasonable doubt of the offense of
Lascivious Conduct under Section 5(b) of R.A. No. 7610, and
is SENTENCED to suffer the indeterminate penalty of eight (8)
years and one (1) day of prision mayor, as minimum, to seventeen
(17) years, four (4) months and one (1) day of reclusion temporal, as
maximum. He is likewise ORDERED to PAY AAA the amounts of
Fifty Thousand Pesos (P50,000.00) as civil indemnity, Fifty
Thousand Pesos (P50,000.00) as moral damages, and Fifty Thousand
Pesos (P50,000.00) by way of exemplary damages. Interest at the
rate of six percent (6%) per annum is imposed on all the damages
awarded from the date of finality of this Decision until fully paid.

SO ORDERED."