REPUBLIC OF THE PHILIPPINESDEPARTMENT OF JUSTICE

OFFICE OF THE PROVINCIAL PROSECUTORPalace of Justice, Capitol, Cebu City

Gloria Andrin Illustrisimo, VII-03-INV-14F-0742Complainant,

For: ACTS OF LASCIVIOUSNESS

FRUSTRATED MURDER and

GRAVE THREATS-versus-

Raul Bantoc Tero andFernando Oyao Andrin,

Respondents.x----------------------------/

RESOLUTION

This is a criminal complaint for Acts of Lasciviousness, Frustrated Murder and Grave Threats against the above-named respondents committed under the circumstances as alleged hereunder by herein complainant in her Judicial Affidavit, to wit:

Q. “Why are you here now in Investigation Section of this Station?

A. I am here in order to file a formal complaint against Raul Bantoc Tero, 38 years old, married and Fernando Oyao Andrin also 38 years old, widower, both resident of Sitio Luyong Baybay, Barangay Tacup, San Remegio, Cebu.

Q. Why are you filing a formal complaint against these persons?

A. For the criminal acts that Raul Bantoc Tero and Fernando Oyao Andrin committed to me and to my uncle Boncale Andrin last May 21, 2014 at around 3:30 o’clock in the afternoon more or less, at Sitio Luyong Baybay, Barangay Tacup, San Remegio, Cebu.

Q. Will you please narrate to this investigator the circumstances of the incident?

A. Yes sir, that on the aforementioned time and date I together with my live-in partner Domeciano Fuentes Malabago and my other relatives were having a gathering thereat, when the suspect Raul Bantoc Tero

together with Fernando Oyao Andrin, arrived in our place.

Q. What happened during that moment?A. That upon arrival of Raul Bantoc Tero and Fernando

Oyao Andrin, the former directly went to me and without any ado the suspect Raul Bantoc Tero, suddenly kiss and embraced me, which during the incident my uncle Boncale Andrino, a paralyze and disabled person, who happened to saw the incident got angry to Raul Bantoc Tero.

Q. Then what was your reaction to the criminal acts committed by Raul Bantoc Tero to you?

A. I got angry to Raul Bantoc Tero and during that moment and his companion Fernando Oyao Andrin who was armed with a sharp pointed bolo, immediately draw the weapon from the scabbard and attempted to thrust the bolo to my uncle Boncale Andrin.

Q. Then what happened after that incident?A. Our companion Lito Opora Mercader, the live-in-

partner of my cousin Aileen Andrin Gopong, managed to disarm the bolo from the possession of Fernando Oyao Andrin, upon my assistance but during the process I was injured at my right hand.

Q. After the incident what happened next?A. That after that incident Raul Bantoc Tero and Fernando

Oyao Andrin immediately left the place and Lito O. Mercader, also went to the house of Barangay Captain Pablito Bantoc, purposely to turned-over the sharp pointed bolo, recovered from Fernando O. Andrin.

Q. After that what other incident happened?A. That several minutes later after that incident Raul

Bantoc Tero and Fernando O. Andrin went back to our place and during this moment, both of them were armed. Raul Bantoc Tero was armed with a piece of 2x2 of coconut lumber while Fernando O. Andrin was armed with several pieces of stone.

Q. What did they do during this moment?A. Immediately upon their arrival, Raul Bantoc Tero , he

directly went to my place and struck me using his carried 2x2 coconut lumber for three (3) times, but on the third times I was hit at my left wrist which during the incident I used to cover on my head that causes physical injuries.

Q. What other incident happened after that?A. That my live-in partner Domeciano F. Malabago arrived

thereat and he confronted Raul Bantoc Tero and

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Fernando O. Andrin and during this incident a stoning occurrence happened.

Q. During the incident what did you do?A. I ask Lito O. Mercader to call for police assistance and a

few minutes later the PNP personnel from San Remegio Police Station arrived.

.Q. After that what transpired next?A. That all of us were brought to San Remegio Police

Station by the responding police officers and we were investigated inside the police station.

Q. During the conduct of investigation what happened?A. During the conduct of investigation inside the police

station and in front of the investigator and the Chief of Police and without any provocation suddenly Raul Bantoc Tero boxed and kick my live in partner Domeciano F. Malabago hitting at his breast and his thigh. That during this incident Raul Bantoc Tero shouted threatening words to me together with my live-in partner by saying in Cebuano dialect to quote “Patyon ta mo kon makagawas mi dri sa Prisohan” which when translated to English language it may means “I will kill you, whenever I get out from the jail”.

Q. After the commotion inside the police station, what happened next?

A. All of us were escorted by the police personnel to have a medical check-up of or respective injuries.

Q. You mention earlier that the incident was reported to San Remegio Police Station do you have a copy of the police report of the above-quoted incident?

A. Yes, sir.Q. This extract copy you presented will be included in

your affidavit to be part of it and I will mark it as Annex “A”, will you agree?

A. Yes, sir.Q. You mention to me earlier that you were medically

treated as a result of the striking incident with the use of 2x2 coco lumber perpetrated by Raul Bantoc Tero, Do you have a copy of your Medical Certificate?

A. Yes, sir I have in my possession of my Medical Abstract from Vicente Sotto Memorial Medical Center, at Cebu City. That the copy of my Medical Certificate from the said hospital will be submitted later.

Q. This copy of your Medical Abstract, I will include it in your affidavit to be a part of it and I will marked it as Annex “B”, will you agree?

A. Yes, sir.Q. You mention earlier that a photograph of the sharp

pointed bolo which was disarmed from Fernando Oyao

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Andrin was taken at the police station? Do you have the copy of that photograph?

A. Yes sir. I have in my possession the picture of the sharp pointed bolo used by Fernando Oyao Andrin during the incident.

Q. This copy of the photograph of the bolo used by the suspect Fernando Oyao Andrin will be included to your affidavit to be part of it and I will mark it as annex “C”, will you agree?

A. yes, sir.Q. You mention earlier that you have a photograph of

yourself who was already injured due to the criminal action committed by Raul Bantoc Tero? Do you have the copy of that photograph?

A. Yes, sir.Q. This picture of you submitted to me will included in

your affidavit to be part of it and I will mark it as Annex “D”, will you agree?

A. Yes, sir.”

Fernanda Andrin Arcillas and Lito Opora Mercader corroborated with the allegations of the complainant in support of this complaint.

The undersigned sent subpoena to both respondents through the PNP San Remigio, Cebu. The return of the subpoena shows that respondent Fernando Oyao Andrin received and signed the subpoena but respondent Raul Bantoc Tero is not found in the said place. Respondent Fernando Oyao Andrin did not submit a counter affidavit to answer the charge.

FINDINGS:

After evaluation of the pieces of evidence submitted, the undersigned finds probable cause on the following:

1. Unjust Vexation, Attempted Homicide and Grave Threats against respondent Raul Bantoc Tero;

2. Attempted Homicide against respondent Fernando Oyao Andrin.

There is probable cause to hold respondent Raul Bantoc

Tero for trial only for the offense of Unjust Vexation but not Acts of Lasciviousness considering that he kissed and embraced the complainant at the time when she and her live-in partner and her other relatives were having a gathering at the time of the incident which negates lewd

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design, an element of lascivious conduct. It was held in the case of People vs. Balbar, 21 SCRA 1119, cited on page 863 to page 864 of the Book of Reyes entitled: The Revised Penal Code Criminal Law II, Fifteenth Edition Revised 2001, to quote: “The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. In the instant case, in view of the manner, place and time under which the acts complained of were done, lewd designs can hardly be attributed to the accused. The factual setting, i.e., a school room in the presence of complainant’s students and within hearing distance of her co-teachers, rules out a conclusion that the accused was actuated by a lustful design or purpose or that his conduct was lewd or lascivious. It may be that he did embrace the girl and kiss her but, this of itself would not necessarily bring the case within the provision of Article 336 of the Revised Penal Code.” Secondly, the undersigned also noted that there is no evidence to prove that any of the circumstances mentioned under Article 266-A (Rape, When and How Committed), was present.

Respondent Raul Bantoc Tero is probably guilty for Attempted Homicide which is appropriate than the charge of Frustrated Murder. Respondent struck complainant three times aiming at her head with the use of a piece of wood (2x2 coconut lumber) hitting her left wrist when she used her hands to cover her head. Attached to the records is the Medical Abstract for the injuries suffered by the complainant. There is intent to kill when respondent Tero intended to strike at the head of the complainant which is a vital part of her body. She would have been killed if not of the timely arrival of her live-in partner Domeciano F. Malabago who confronted respondent Tero and Andrin.

Probable cause also exists for the offense of Grave Threats against respondent Raul Bantoc Tero when he threatened complainant by saying, to quote: “Patyon ta mo kon makagawas mi dri sa prisohan”, which in English means, (I will kill you whenever I get out from jail)

Likewise, there is also probable cause to hold for trial respondent Fernando Oyao Andrin for the crime of Attempted Homicide. He attempted to kill Boncale Andrin, a paralyze and disabled person, with the use of a sharp pointed bolo by attempting to thrust the bolo at him but was prevented by Lito Opora Mercader, the live-in partner of complainant’s cousin, who was able to disarm respondent Andrin with the help of the complainant. Respondent Andrin

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resented when Boncale Andrin got angry to respondent Tero when the latter kissed and embraced complainant.

Despite findings of probable cause on the offenses for Unjust Vexation and Grave Threats, these are within the authority of Barangay Tacup, San Remigio, Cebu, where both parties reside, for Barangay Conciliation considering that the penalty provided by law on the two offenses does not exceed one year. Hence, these two offenses should first be referred to their Barangay for barangay conciliation proceedings. These offenses were filed before this Office prematurely.

WHEREFORE, premises considered, the undersigned recommends the filing of separate information against the two respondents for Attempted Homicide in the appropriate MCTC.

Further, it is also recommended that the offenses for Unjust Vexation and Grave Threats against respondent Raul Bantoc Tero be dismissed for being filed prematurely without prejudice for their re-filing.

Cebu City, Philippines, August 29, 2014.

ARNULFO V. AMODIAProsecutor II

MCLE Compliance No. IV-0005950Issued on 05-29-12

APPROVED:

PEPITA JANE A. PETRALBAProvincial Prosecutor

MCLE Compliance No. IV-0016449April 10, 2013

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