G.R. No. 137454 -

Ruling

accordingly charged by Jennifer with rape before the Quezon City Regional Trial Court (RTC) allegedly committed as follows: That on or about the 10 th day of June 1997 in Quezon City, Philippines, the said accused by means of force and intimidation, to wit: by then and there wilfully, unlawfully and feloniously undress JENNIFER LAMPAY Y AVILA, a minor, 5 years of age and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent. [10] When arraigned, accused-appellant pleaded not guilty. Trial ensued thereafter. Belinda, and Dr. Reyes testified to the foregoing account as did Jennifer as reflected earlier. In addition, the prosecution presented Elvira Valismo, a clinical psychologist at the Research and Study Center for Children who examined Jennifer about two weeks after the alleged abuse, and who declared that Jennifer was not communicative except with other children and was especially withdrawn from adult males. Elvira further declared that when Jennifer was confronted with questions regarding the incident, she would turn silent, and that gauged from the Wexler Intelligence Skills for Children, Jennifer was not functioning at the maximum level of her intelligence. Elvira thus concluded that Jennifer suffered from depression and trauma as a result of the abuse. [11] Accused-appellant, 36 at the time he testified on direct examination on February 3, 1998, a construction worker and a resident of 34 Dupax Street, Diliman, Quezon City gave the following version: At 10:00 oclock in the morning of June 10, 1997, on seeing that his neighbor of eighteen years Avelino Magno (Magno), a garbage collector, was working by himself, making hollow blocks and plastering the walls of the house of a neighbor-waiter Ricky Bautista at 43 Dupax Street, he decided to lend Magno a hand, albeit he (accused-appellant) did not get paid for it. Accused-appellant and Magno later took lunch at past noon, and an hour or so later they resumed their work. At 4:00 oclock in the afternoon, Magno went home while he proceeded to the nearby house of Zaldy Salas (Zaldy) where the two watched television up to 6:00 in the evening. He then repaired to his uncles house at 34 Dupax St. where he resided, about ten meters away from Jennifers. [12] Magno corroborated accused-appellants testimony. He claimed, however, that after work was done in the afternoon, he and accused-appellant both went to the house of Zaldy where they watched television. [13] Accused-appellant foisted the theory of mistaken identity, alluding to one Jerry Teves as the true perpetrator of the crime. By accused-appellants account, Teves, whom Jennifer also called Kuya Jerry, is a small man past 20 years, of medium build, good looking, and a cousin of Jennifers father who used to live with them. [14] Accused-appellants brother, Joffrey Cantuba, related that he shares a twenty four square meter two storey house at Road 44, Dupax St. with his wife Celestina and