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REPUBLIC OF THE PHILIPPINES

SIXTH JUDICIAL REGION


REGIONAL TRIAL COURT
BRANCH 23, ILOILO CITY
CRIM CASE NO. 67890
FOR: RAPE
PEOPLE OF THE PHILIPPINES,
Plaintiff,
-versus-

CARLO GIEZ,
Accused.
xx
MEMORANDUM FOR THE DEFENSE
The Defense, by the undersigned counsel, and unto this Honorable Court, respectfully submits
this Memorandum as follows:
PREFATORY STATEMENT
The defense humbly states and takes the position that it has presented competent witnesses, clear,
convincing and sufficient evidence to prove that accused is not guilty of committing the crime
charged and that the prosecution miserably failed to present any evidence that could overcome
the innocence of the accused beyond reasonable doubt.
I. STATEMENT OF FACTS
During the course of the trial, the Defense, through its witnesses was able to establish the
following facts:
1. That on January 28, 2012, the accused Carlo Giez (Carlo) together with the
prosecutions witness Julia Aro (Julia) and their other classmates was invited by their
teacher in Research II, the complainant, Ms. Marie Juana to her apartment in 78 Delgado

St., Iloilo City, for the discussion of new topics in the said subject. Such invitation was
proven to be a normal part of the teaching technique of the complainant.
2. That at ten oclock in the evening of the same day, Carlo, Julia and their other classmates
were about to leave since it was already late. But Ms. Marie Juana insisted that they stay
for the night but she prevailed only to Carlo and Julia.
3. That Carlo and Julia stayed for the night as Ms. Marie Juana insisted they do so. They
continued to work on their lessons and later they were offered wine by the complainant.
The three of them drank wine until one oclock in the morning.
4. That about one o clock in the morning of the next day they stopped working and went to
sleep. The accused, Carlo was sleeping with his head on the table while the two women
were on the sofa.
5.

That at about four oclock in the morning, the accused woke up on top of the bed with
the complainant naked right beside him in the complainants room. The accused then
demanded an explanation of what happened instead of answering the complainant then
put her arms around the accused and started crying and demanding that the accused
should marry her; the accused then ran out of the room.

6. That a criminal complaint with docket number 67890 against Carlo was filed before the
City Prosecutors Office on May 11, 2o12 by Marie Juana Lopez.
II. ISSUES
1. Whether or not the crime of rape has been committed; and
2. Whether or not the accused, Carlo Giez is guilty of the crime charged.
III. ARGUMENTS AND DISCUSSION
Art. 266 A of the Revised Penal Code states how and when rape is committed
1.) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a.) Through force, threat or intimidation;
b.) When the offended party is deprived of reason or otherwise unconscious;
(emphasis supplied)
c.) By means of fraudulent machination or grave abuse of authority;
d.) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances above is present;

2) By any person who, under any of the circumstances in paragraph 1 hereof, shall commit an act
of sexual assault by inserting his penis into another persons mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person.
Under the present case, the accused Carlo Giez is charged with rape contemplated in
paragraph 1 of Art. 266 A thus to be convicted of the crime of rape the following elements must
be proved; (1) That the offender is a man; (2) that the offender had carnal knowledge of a
woman; and (3) that such act is accomplished under any of the circumstances enumerated in
paragraph one of Art. 266 A of the Revised Penal Code which according to the information, the
crime was accomplished by force when the woman is deprived of reason or otherwise
unconscious due to alcohol.
In view of the abovementioned requisites it is the contention of the defense that the
prosecution had miserably and utterly failed to overcome the innocence of the accused and prove
that he is guilty beyond reasonable doubt of the crime of rape based on the following arguments:
1.) Testimony of the complainant Ms. Marie Juana Lopez shows glaring inconsistencies in
her story.
The complainant Marie Juana testified that on January 28, 2012 she offered wine to Julia
Aro and Carlo Giez and that they drank while working until one oclock in the morning. Then
they went to sleep with the complainant and Julia Aro on the sofa and Carlo Giez sleeping with
his head on the table. She then narrated that she drank too much and felt tired and dizzy as
gleaned from the records of the case:

Atty. Ortilano: At 1 oclock, you slept on the sofa with Julia


Aro, can you please tell the court before you slept how
were you feeling?
Complainant:
I felt so tired, drunk and my head was
aching and I as physically exhausted.

If the statement of the complainant is true then how then was she able to identify right
away who assisted her to the room as shown in the records of the case?

Atty. Ortilano: While you were on the sofa, in your affidavit


you also stated that Carlo Ginez assisted you.
Complainant:

Yes.

Atty. Ortilano: Okay, how did you know that it was him?
Complainant:

He was the only man.

Atty. Ortilano: During this time, when you feel that


someone was assisting you, how were you feeling that
time? Were you totally conscious or not at all?
Complainant:

I was not totally conscious.

Atty. Ortilano: Can you please further explain how exactly


that happened?
Complainant:

I felt so dazy, so sleepy and

The complainant without hesitation was able to identify right away the person who woke
her up and assisted her to her room from the sofa despite the fact that Julia Aro testified that she
helped Carlo carry Ms. Lopez to her room, she could easily identify Carlo but could not recall
that Julia Aro was also there although she could feel two persons assisting her. Despite stating
that she is not totally conscious she was still able to identify right away the person, who
assisted her, she was even able to narrate vividly the alleged process of raping her.
On that note we turn our attention then to the alleged carnal knowledge itself. The
complainant stated that her hands were pinned on her side by the hands of the accused and
quoting from the records of the case her legs were not free because he pinned his body on top of
me and I cannot struggle anymore because he is stronger than me. If the accused pinned her legs
by putting his body on top of her how then was the carnal knowledge done? For sexual
intercourse to happen the penis of the accused must have invaded the vagina of the complainant
but from the narration of the complainant it would be quite impossible for a man to insert his
penis while pinning the legs of the woman with her body, even just to touch the lips of the vagina
would prove a an impossible feat. Such act if indeed possible can only be done by an
accomplished contortionist. The complainant was not able to fully narrate the consummation of
the alleged sexual act of the accused against her, although nothing in the law requires that the
victim recount the consummation of the act of rape by testifying in detail and precise blow by
blow account of the heinous act still the complainant must be able to describe what happened in
a clear, coherent and logical manner which will establish the credibility of her testimony. The
complainant in the present case failed utterly to substantiate her story since her testimony lacks
logic, coherence and contrary to human experience.
Another matter which debunks the contention of the prosecution that the accused
committed rape against the complainant is the fact that her testimony only describes how her
hands and legs were bound to prevent struggle but there was never a mention of how the accused
prevented her from screaming considering the fact that Julia Aro was right there in the next
room. Unless the accused had three hands, he could not simultaneously pin her hands with one of
his hand while the other removes her clothes while pinning her legs with her body. The fact that

she was able to describe how she was being abused shows the fact that the complainant is
conscious enough to know what is being done to her and human experience dictates that on
matters of rape the victim usually screams especially if she knows that someone is nearby. It
should be noted that nothing in the records of the case shows that the accused is armed with a
weapon in which he can threaten the victim and frighten her to silence. The physical build of the
accused is also not in the state wherein it would cow the victim into silence as the accused is not
a very large and powerful man. Even with the large intake of alcohol the testimony of the
complainant was able to show that she was not deprived of her will as evidenced by her struggle
it is just the fact that she did not shout that cast a serious doubt on whether or not the
complainant was indeed struggling. In reviewing the evidence adduced in a prosecution for the
crime of rape, three well known principles should guide an appellate court, namely, (1) that an
accusation for rape can be made with facility, is difficult to prove, but more difficult for the
person accused, though innocent, to disprove; (2) that in view of the intrinsic nature of the crime
of rape where only two persons are usually involved, the testimony of the complainant must be
scrutinized with extreme caution; and (3) that the evidence for the prosecution must stand or fall
on its own merits, and cannot be allowed to draw strength from the weaknesses of the evidence
for the defense. (People vs. Cudira, 3 C.A. Rep. 93; People vs, Villapana, 101 SCRA 72; People
vs. Aldana, 175 SCRA 135). Thus as stated in the second principle enunciated in the above cited
cases the testimony of the complainant must be scrutinized with extreme caution since most
often than not the testimony of the offended party is the only one that can prove the commission
of rape. The testimony of the offended party most often is the only one available to prove
directly the commission of rape; corroboration by other eyewitnesses is seldom available. In fact,
the presence of such eyewitnesses would, in certain cases, place a serious doubt as to the
possibility of its commission. The testimony, however, must be conclusive, logical and probable.
(People vs. Landicho, C.A., 43 O.G. 3767)
2.) Testimonies of the witnesses for the prosecution lack evidentiary weight to corroborate
the story of the offended party that rape was indeed committed.
Upon perusal of the records it would appear that the testimony of Julia Aro is useless as
she had expressly stated in open court that she did not see the rape:

Atty. Tamba:
Do you mean to see then Ms Witness that
you did not see nor hear the alleged abuse made to Ms.
Lopez?
Witness:

No.

Judge Deloria: (to the witness) what is the answer? Did


you see or not?

Witness:

No, I did not see.

Judge Deloria: You did not see.

Since the witness was not able to neither see nor hear the act of rape, her testimony could
no longer corroborate the story of the complainant. On the other hand the testimony of Emma
Valdez, the call center representative who lives right next door of the apartment of the
complainant testified that she went to the apartment of Ms. Lopez at three oclock in the morning
to pay her debt but as she went and peep inside the room she saw a man and a woman as stated in
the records of the case:
Witness:
Actually I was supposed to pay her the day
before, however I have my shift eh and she arrives at
around 5. I was not able to see her that day so I thought to
myself that I should pay her as soon as I got home. So on
January 29, at about 3 am I went directly to the room of Ms.
Lopez to see if she was awake and it was one. So I guess, I
was to pay my debt
Atty Hiponia:

Why not wait in the afternoon?

Witness:
Im sleeping in the morning, give me a rest.
It is so exhausting to work with such a shift.
Atty Hiponia: When you peeped, the hole was in the
window?
Witness:

It was an opening like 10 inches.

Atty Hiponia: What did you see when you peep?


Witness:
I saw a man and a woman. I know MJs
structure is petite so I could actually recognize her from 812 feet away. I saw a guy of course, and they were together
on the bed and the guy was on top and I thought it was a
private thing going on so I just exit myself after 5 minutes
of looking at it. I saw them doing what normal adults do
and I saw MJ
Atty Hiponia:

How long did you peep?

Witness:
It really took me a while to recognize MJ so I
stayed there for about 5 minutes.
Atty Hiponia:

You said there was a dim light, right?

Witness:

It was kind of yellow, for sleeping.

Atty Hiponia: Have you actually seen the face of the man
who was on top of Ms Lopez?

Witness:
guy.

No, but I can see only the structure of the

Atty Hiponia:

So you are not really familiar of the guy?

Witness:
No. Because, you know, Im not really
interested in who he is. I really did not focus on him rather
I focused on if it was MJ. If there are two people who would
barge in her room and it was not her.
Atty Hiponia: So the two persons that you are talking
about is Ms. Lopez and a guy you really do not know?
Witness:
Yes. I did not really see if the MJ was naked
but the guy was naked.
Atty Hiponia: When you saw that there were two naked
persons in the apartment, did you hear anything?
Witness:

No.

Atty Hiponia:
Ms. Lopez?
Witness:

Did you recognize any resistance from

No.

Atty Hiponia: Since you were not able to see the mans
face, it could therefore be any other man?
Witness:

Yes.

The testimony of Ms. Valdez presents too many glaring holes to be ignored thus it could
not be fully trusted to corroborate the testimony of the offended party. First of all, the way the
witness described the structure and layout of both her apartment and that of the complainant
leaves much to be desired, it is quite odd that a studio type apartment could have windows facing
the other if they are right beside each other as can be indicated in her testimony:
Atty Hiponia:

Which part of the apartment is your room?

Witness:

Im next to Ms Lopez.

Atty Hiponia:

Is it a studio type, right?

Witness:
Mari Juana)

Yes, it is the same as MJs. (MJ is short for

Atty Hiponia: So, since Ms Lopez apartment is next to your


apartment
Witness:
Her apartment was apartment 1 and my
apartment was apartment 2.

Atty Hiponia: Your honor, may we adopt exhibit C as


exhibit 9 for the Defense.
Judge Deloria: Where is exhibit C? So was it exhibit 9?
Mark it.
Clerk:

Marked, your honor.

Atty Hiponia: I would like to direct your attention to


question 10, Ms Witness. You have mentioned that the light
was turned on already, does that mean that Ms. Lopez
turns on her light early?
Witness:
Not sometimes, you will know that shes
there because the light was on, eh. The light is either
coming from her sala or her room because she keeps a
night lamp, not really a night lamp but a dim light that is
actually yellowish something and you can actually see that
she is awake. But during that day, because it was 3 am-ish,
it was on so she is still there.

It is uncommon for studio type apartments which are side by side to have windows facing
each other unless the both apartments are directly facing each other. But granting even that such
layout actually exist the idea that she can see the complainant in her bed with a man directly
from the window means that the window is located in the bedroom of the apartment, how then
was she able to see through the peephole she described? Considering that the she went to the
apartment of Marie Juana to pay her debt which means she went to the door as indicated when
she said she went directly to the room of Ms. Lopez to see if she was awake, how then
would she be able to see the events inside the room of Ms. Lopez if shes at the door of the
apartment of Ms. Lopez? Granting again that she can indeed see the inside of the Ms. Lopezs
room and the events that transpired inside it still her testimony lacks weight since she could not
identify the man she saw on top of Ms. Lopez therefore there is still no positive identification as
to the person on top of Ms. Lopez. It is also quite mind boggling that she was able to see that the
man is naked in the dark of the night with almost no light from a ten inch hole from her window
to the room of Ms. Lopez. Thus we submit that the testimonies of the witness are useless and
devoid of any merit as it lacks the conclusiveness, logic and coherence to sustain a positive
identification of the accused for they had both explicitly stated that neither one of them had
witnesses the actual rape.
As such the defense reiterates its previous contention that prosecution had utterly failed
to establish a case that would prove the guilt of the accused beyond reasonable doubt based on
the following reasons, (1) that the testimony of the complainant lacks logic, coherence and is
highly improbable and that (2) that the testimonies of the witnesses for the prosecution is devoid
of merit as they were not able to sufficiently establish nor corroborate the story that rape was
indeed committed and that the accused is guilty.

IN VIEW OF THE FOREGOING, it is most respectfully prayed for of this Honorable


Court that the accused be acquitted of the crime of Rape.

December 7, 2013, Iloilo City.

Atty. Alvin Delgado


Lead Counsel for the Defense
Hardcore Law Office
Gen. Luna Street, Iloilo City
Until December 31, 2013
Roll of Attorney No. 23151
PTRNo.7945620/January12,2013/Iloilo City
IBP No.302917/January 12, 2013/ Iloilo City
MCLE Compliance No. III-8932816