FIRST DIVISION G.R. No. 166441, October 08, 2014 NORBERTO CRUZ Y BARTOLOME, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent. DECISION BERSAMIN, J.: The intent of the offender to lie with the female defines the distinction between attempted rape and acts of lasciviousness. The felony of attempted rape requires such intent; the felony of acts of lasciviousness does not. Only the direct overt acts of the offender establish the intent to lie with the female. However, merely 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. The Case This appeal examines the decision promulgated on July 26, 2004,1 whereby the Court of Appeals (CA) affirmed the conviction for attempted rape of the petitioner by the Regional Trial Court, Branch 34, in Balaoan, La Union (RTC), and imposing on him the indeterminate penalty of imprisonment of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and ordering him to pay moral damages of P20,000.00 to AAA,2 the victim. Antecedents The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving different victims. At arraignment, he pleaded not guilty to the respective informations, to wit: ChanRoblesVirt ualawli bra ry Criminal Case No. 2388 Attempted Rape That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force and intimidation commenced the commission of rape directly by overt acts, to wit: While private complainant AAA, an unmarried woman, fifteen (15) years old, was sleeping inside the tent along Bangar-Luna Road, the said accused remove her panty and underwear and lay on top of said AAA embracing and touching her vagina and breast with intent of having carnal knowledge of her by means of force, and if the accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it was not because of his voluntary desistance but because the said offended party succeeded in resisting the criminal attempt of said accused to the damage and prejudice of said offended party.

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