performing the lascivious conduct with the child. If the accused has sexually
misused the child on more than one occasion, then that child becomes a child
subjected to "other sexual abuse." Thus, the second element would be present - the
circumstance of the child would be that of being subjected to "other sexual abuse"
and each act of the accused will be considered as the first element of lascivious
conduct under Section 5(b) of RA 7610.
In this case, however, it was not alleged or proven that the child victim was
exploited in prostitution or subjected to "other sexual abuse." As it is fundamental
that every element of the crime must be alleged in the complaint or information
against the accused, there is no basis to convict Quimvel for violation of Section
5(b) of RA 7610. This Court has held:
The issue on how the acts or omissions constituting the offense should be made in
order to meet the standard of sufficiency has long been settled. It is fundamental
that every element of which the offense is composed must be alleged in the
information. No information for a crime will be sufficient if it does not
accurately and clearly allege the elements of the crime charged. Section 6,
Rule 110 of the Revised Rules of Court requires, inter alia, that the information
must state the acts or omissions so complained of as constitutive of the offense.
Recently, this Court emphasized that the test in determining whether the
information validly charges an offense is whether the material facts alleged in the
complaint or information will establish the essential elements of the offense charged
as defined in the law. In this examination, matters aliunde are not considered. The
law essentially requires this to enable the accused suitably to prepare his defense,
as he is presumed to have no independent knowledge of the facts that constitute
the offense.[6] (Boldfacing and underscoring supplied)
The second element of Section 5(b) of RA 7610 was not clearly and accurately
alleged against Quimvel, and there was also no allegation of any , material fact that
would establish the element that the child was exploited in prostitution or subjected
to "other sexual abuse." The Information reads:
AMENDED INFORMATION
The Undersigned Assistant City Prosecutor of Ligao City hereby accuses EDUARDO
QUIMVEL y BRAGA also known as EDWARD/EDUARDO QUIMVEL y BRAGA of the
crime of Acts of Lasciviousness in relation to Section 5(b) of R.A. No. 7610,
committed as follows:
That on or about 8 o'clock in the evening of July 18, 2007 at Palapas, Ligao City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd and unchaste design, through force and intimidation, did then
and there, willfully, unlawfully and feloniously, insert his hand inside the panty of
[AAA], a minor of 7 years old and mash her vagina, against her will and consent, to
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