Fitzgerald's Extended Sentence
People of the Philippines
(Plaintiff-Appellee,)
versus
VICTOR KEITH FITZGERALD
(Accused-Appellant)
DECISION
VERZOLA, E., J.:
This is an appeal by the accused Victor Keith Fitzgerald
from the decision of Branch 75 of the Regional Trial Court of
Olongapo City dated May 7, 1996 in Criminal Case No. 422-94
finding him guilty of Violation of Article III, Section 5 of Republic
Act No. 7610, otherwise known as the "Special Protection of
Children Against Child Abuse, Exploitation, and Discrimination
Act".
The accusatory portion of the Information under which the
appellant was tried and convicted reads as follows:
"That sometime in the month of September
1993, in the City of Olongapo, Zambales, Philippines
and within the jurisdiction of this Honorable Court,
said accused VICTOR KEITH FITZGERALD, actuated
by lust, and by use of laced drugs ("vitamins") wilfully,
unlawfully and feloniously induced complainant
GLORIA LIMPAT a minor, 13 years of age to engage in
prostitution by then and there showering said GLORIA
LIMPAT with gifts, clothes and food and thereafter
having carnal knowledge of her in violation of the
aforesaid law and to her damage and prejudice."
Unsatisfied with the judgment, appellant is now before us on
appeal assigning the following errors on the part of the lower court:
A. THE REGIONAL TRIAL COURT A QUO ERRED IN
CONVICTING THE ACCUSED FOR VIOLATION
OF SEC. 5, PAR.A, SUB PAR. 5, REPUBLIC ACT
7610.
B. THE REGIONAL TRIAL COURT A QUO ERRED IN
FINDING THE ACCUSED AS A PEDOFILE (SIC).
C. THE REGIONAL TRIAL COURT ERRED IN
SELECTIVELY GIVING CREDENCE TO THE
TESTIMONY OF COMPLAINANT GLORIA LIMPAT
AND TOTALLY IGNORED HER OTHER
TESTIMONIES EXONERATING THE ACCUSED.
D. THE REGIONAL TRIAl COURT ERRED IN
ADMITTING AND APPRECIATING THE TESTIMONY
OF DR. AIDA L. MUNCADA WHOSE TESTIMONIES
IS ESSENTIALLY HEARSAY IN CHARACTER.
E.THE REGIONAL TRIAL COURT A QUO ERRED IN
NOT GIVING FULL FAITH AND CREDIT TO THE
TESTIMONY OF COMPLAINANT IN RTC BR. 72.
F. THE REGIONAL TRIAL COURT A QUO ERRED IN
CONVICTING THE ACCUSED FOR VIOLATION OF
ART. III, SEC. 5, SUBPAR. 5, REP . ACT 7610
WHILE AT THE SAME TIME EXONERATED THE
ACCUSED FOR A MORE SERIOUS OFFENSE OF
RAPE WHICH ABSORBS THE ALLEGED VIOLA-
TION OF REP.ACT 7610.
G. THE REGIONAL TRIAL COURT ERRED IN NOT
DECLARING THAT THE ACCUSED WAS DENIED
HIS RGHT TO DUE PROCESS OF LAW AND HIS
RIGHT TO BE INFORMED OF THE NATURE OF
THE CHARGE AGAINTS HIM IN CRIM. CASE NO.
422-94.
On April 19, 1999 accused-appellant thru counsel filed a
Reply and Supplemental Brief alleging among others the following
assignment of errors to wit:
ITERATION OF ASSIGNMENT OF ERRORS
The RTC erred in convicting the accused for
violation of R.A. 7610 while exonerating him from the
more serious offense of rape which absorbs the former.
The RTC erred in finding that the accused is a
pedofile the same being without any sufficient basis,
medical or psychiatric.
III.
The RTC erred in admitting and appreciating the
evidences submitted before it:
a. in the flip-flopping testimonies of complainant
Gloria Limpat, the RTC selectively gave credence
to her testimony tending to point to the guilt of
the accused while totally ignoring the rest of her
testimonies exonerting the accused.
b. admitting and appreciating the testimony of Dr.
Aida Muncada, the psychiatrist who testified that
Gloria Limpat shared with her latter's agony
in the hands of Fitzgerald, the same being
hearsay in character.
c. in not giving full faith and credit in the testimony
of Gloria Limpat before Judge Ubadias of the
Olongapo RTC, Branch 72 where the accused was
acquitted from similar charges filed against him,
and Jacquiline Purificacion, Limpat's close friend
and constant companion was the private
complainant.
d. in not giving full faith and credit in the testimony
of Gloria Limpat's mother who attested that no
form of abuse was ever committed by Fitzgerald
against her daughter.
e. in not giving full faith and credit to the clear and
straightforward testimony of the accused,
Fitzgerald.
f. in not giving full faith and credit to the testimony
of Jacquiline Purificacion who revealed the
malicious schemes perpetrated by Fr. Cullen and
the PREDA Foundation which he heads.
IV.
The lower court erred in not declaring that the
accused was denied his right to due process because
his right to be informed of the nature of the charge
against him was violated.
ADDITIONAL ASSIGNMENT OF ERRORS
V.
THE LOWER COURT ERRED IN RULING THAT
FURTHER CROSS-EXAMINATION WAS DEEMED
WAIVED BY REASON OF THE ABSENCE OF
DEFENSE COUNSEL.
VI.
THE COURT ERRED IN THE APPRECIATION OF
TESTIMONIAL EVIDENCE BY IGNORING THE PATENT
INCONSISTENCIES AND CONTRADICTIONS IN THE
TESTIMONY OF PRIVATE-COPLAINANT-WITNESS
GLORIA LIMPAT, LATER RECANTED.
The people's version of the case, with appropriate
documentation from the testimonial and documentary evidence on
record is as follows:
It was in September, 1993 when complainant Gloria Limpat,
a girl thirteen (13) years of age, came to know accused Victor Keith Fitzgerald
through her friend Jacquiline Purificacion, another
minor who claimed to be a victim of sexual abuse and rape by
herein accused.
Victor brought Gloria and Jacquiline to his yacht and gave
them clothes and food. While Jacquiline was seated on a
chair, Victor kissed her vagina. Gloria was then about two (2)
meters away from them. Thereafter, Victor ordered Gloria to take a
bath and after taking a bath, Victor ordered her to get a bottle of
beer.
The appellant gave gloria and Jacquiline food and asked
them to take some kind of medicine.
after taking the medicine , Gloria felt dizzy and sleepy.
Taking advantage of her dizziness, the appellant placed himself on
the top of Gloria and tried to insert his penis into her sex organ but
failed because Gloria was hurt .
When asked by the Court what else happened, complainant
answered: "He kissed my lips and he is licking my whole body,
sir."
Dra. Aida L. Muncada , a child psychiatrist who conducted
the psychiatric evaluation and management of Gloria testified as
follows:
"(q.) Did you believe her narration ?
(a.) Having seen lots of children sexually abused,
I do believe in her narration.
(q.) What was her narration ?
(a.) Regarding the incident that happened to her,
just like the fondling of breast and the contact
made on her genitalia by the perpetrator."
Adelina Apostol, Head Social Worker of DSWD, Lingap
Center, Olongapo City who personally interviewd Gloria Limpat .
and who conducted the Social Case Study report marked Exibit
"J" has no doubt on the truthfulness of Gloria 's narration on
how she
was abused by Victor Fitzgerald .
At the time of his arrest on January 21, 1994, the arresting
officer NBI Agent atty. Magno Britanico found appellant in his
yacht with three (3) children, namely Desiree Perez, 7 years old;
Gloria Limpat, 13 years old and Edith Tamora , 9 years old.
Anent appallent 's contention that the lower court erred in
finding him as pedophile the evidence on record clearly establish
that Victor Keith Fitzgerald not only abused Gloria Limpat but had
also abused other children.
The complainant narrated as follows :
xxx xxx
"(a.) Victor asked us if he knew other children ma'am.
"(q.) What was your response?
"(a.) We replied in affirmative ma'am.
"(q.) After telling Victor that you have some
friends, what happened next?
"(a.) We told him that we will call for them.
I and Jacquilyne will go to our friends.
"(q.) Did you go to your friends?
"(a.) Yes ma'am.
"(q.) What did you do when you saw your friends?
"(a.) We brought them along with us at the
yacht of Victor."
Gloria testified that appellant gave them food and medicine
and after taking the medicine they felt sleepy and she said that she
was referring to Jacquiline, Daybie and Negneg.
Gloria Limpat testified that during her stay in the yatch of
the appellant she recieved first the sum of P150.00 and then
P200.00 from the appellant and that the money were given to her
because the appellant "licked my breast ", and " he tried
to insert
his penis to my vagina ". The appellant also gave her dresses,
short pants, panties and shoes but whenever accused would fondle
her breast and would try to insert his penis into her vagina, she
felt repelled ("nandidiri").
The appellant avers that his generosity and kindness were
distorted and mistaken for some sinister designs; that the only
purpose in bringing children to his yacht was to ask them to clean
it and, in return, he paid them.
The appellant also narrated that he arrived at the American
Naval Base in Subic Bay approximately in mid-July, 1993, to take
shelter during the typhoon months; that he stayed at the Subic
Naval Base until after mid-December 1993 when with no further
threat of bad weather, he left the base for a good spot to get his
boat ready to sail; that he decided to anchor off Nagbaculao
Beach, Lower Kalaklan, Olongapo in full view of hundreds of
residents on the hillside and to motorists along the highway; that it
was there that he came to know several families living in the area
who soon began asking for food, clothing , medicine and money;
that some of the adults and children asked to do errands for him
for a small fee; that he became close to the children who reminded
him of his own children who are now grown-ups.
The appellant claims alleges that the accusation against him
is a fabrication of Fr. Shay Cullen who has a hidden agenda and
that he was made a sacrificial lamb in the ongoing campaign of
Cullen to generate foreign funding for his "Crusade" thru the
exposure that the case generated in foreign media.
After the preliminary investigation of the cases filed against
Fr. Shay Cullen, head of the PREDA Foundation, which had
protective custody of the complainants, State Prosecutor Glenn B.
Pabulan stated in the last paragraph of the page 8 of his Joint
Resolution:
"In fact, there was no holding back
the truth when minors Jacquiline and
Gloria categorically and unequivocably re-
affirmed the truth of thier allegations in
their respective April 22, 1994 sworn
statements in the presence of their
mothers on February 27, 1995 while
disclaimed at the same time their
December 3, 1994 joint affidavit . There
was no way that the horrifying details of
sexual molestation and abuse contained in
their April 22, 1994 sworn statements
could have been provided by respondent
or anybody but by lurid account made
by minors Jacquilyn and Gloria
themselves."
The claim of the appellant that the complaint was instigated
by Fr. Cullen is absurd. no woman especially one who is of tender
age could concoct a story that she was violated, allow examination
of her private parts and thereafter expose herself to humiliation by
being subjected to a public trial, if she is not motivated solely by
the desire to vindicate her honor and to have the culprit
apprehended and punished.
Courts usually lend credence to the testimony of a young girl
when the facts point to her having been a victim of sexual
assault. Testimonies of child-victims are given full weight and
credit . It is simply inconceivable that Gloria, at thirteen , with all
childhood naivete and innocence could make up stories against
appellant if they were not true . Such spontaneity was so
overwhelming to be discredited by a mere denial of the appellant.
It is well settled that an affirmative testimony is stronger than a
negative testimony especially so when it comes from the mouth of a
credible witness.
With respect to the alleged recantation of complainant the
Office of the Solicitor General correctly argues that:
"That last minute attempt by
petitioner to obtain exculpation based on
the subsequent retraction by the witness
should not be granted. Otherwise, it will
make a solemn trial a mockery and place
the investigation of truth at the mercy of
unscrupulous witnesses.
It is preposterous to diregard a
testimony that has undergone trial simply
because an affidavit withdrawing the
testimony is subsequently presented by
the defense. In the first place, any
recantation must be tested in a public
trial. In this case, the witnesses, Gloria
Limpat and Jacqueline Purificacion ,
presented their retractions (sic) only on
appeal , after the decision has been
rendered by the lower court.
Moreover, it is highly probable or
possible that such retractions were made
for a consideration, usually monetary."
In the case of People vs. JUNIO it was held that:
"The appellant's submission that
the execution of an Affidavit of Desistance
by complainant who was assisted by her
mother supported the 'inherent
incredibility of prosecution's evidence' is
specious. We have said in so many cases
that retractions are generally unreliable
disfavor by the courts."
In fact, the appellant may be convicted solely on the
testimony of the complainant Gloria Limpat which is credible,
natural, convincing and otherwise consistent with human nature
and the course of things.
Moreover, considering the candid and straightforward
narration by complainant of how she abused, as borne by the
records and the transcript of stenographic notes which bears the
earmarks of credibility we are convinced, beyond reasonable doubt,
that appellant did commit the acts complained of. As correctly
found by the Court a quo mere denial by an accused cannot
prevail over the positive assertions of the complainant.
We agree with the Solicitor General that the penalty of
reclusion temporal in its medium period to reclusion perpetua be
imposed on the appellant pursuant to Article III, Section 5,
paragraph(a), sub-paragraph 5 of R.A.7610.
IN VIEW WHEREOF, with the modification that the
penalty imposed on the accused-appellant be imprisonment of
FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of
RECLUSION PERPETUA, the decision of the court a quo is hereby
AFFIRMED.
SO ORDERED.
(Originally Signed)
EUBULO G. VERZOLA Associate Justice
WE CONCUR:
(Originally Signed)
ARTEMIO G. TUQUERO
Associate Justice
(Originally Signed)
ELVIJOHN S. ASUNCION
Associate Justice
CERTIFICATION
I hereby certify that the above Decision was reached after
due consultation among the members of this Division in
accordance with the provision of Article VIII Section 13 of the Constitution.
EUBELO G. VERZOLA
Chairman
Thirteenth Division
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