Vindication of Justice for the Poor and the Oppressed

Republic of the Philippines
REGIONAL TRIAL COURT
11TH Judicial Region
Brach 37
General Santos City

RESOLUTION
(on the Demurrer to Evidence)

This resolves the Demurrer to Evidence filed by accused Rodrigo Macareal Olarte, through counsel. It is argued that the prosecution has not adduced evidence strong enough to sustain a conviction based on a finding of guilt of the accused beyond reasonable doubt.

Accused was charged with violation of Section 1 of Republic Act No. 9516 (Unlawful Possession of Explosive) in an Information dated July 2, 2018 which read as follows:

“That on June 19, 2018, at about 3:15 P.M., in Purok Magsaysay-A, Barangay Labangal, General Santos City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully and feloniously have in his possession and control one (1) Fragmentation Hand Grenade later marked with ‘RBE’, without necessary permits and licenses from lawful authorities. Hence, knowing fully well that he has no legal authority to possess the said Fragmentation Hand Grenade.

CONTRARY TO LAW.”

The evidence of the prosecution shows that at around 3:57 in the afternoon of June 19, 2018, members of the Philippine National Police (PNP) in General Santos City composed of elements of City Mobile Force Company and Police Station No. 2 implemented Search Warrant No. 1973 issued by Executive Judge Emmanuel C. Carpio of Regional Trial Court – Davao City for violation of R.A. 10591 (Illegal Possession of Firearms) against herein accused Olarte who is the President of KPS Foundation, Inc. The police, in the presence of media representative and Barangay officials, search inside the office of the accused located at KPS Foundation, Purok Magsaysay-A, Brgy. Labangal, General Santos City, but no firearms were found inside the said office. However, when the searching team was about to leave the premises, PO1 Rothcin B. Eroy was able to see in plain view inside an open-drawer of a table one (1) fragmentation hand grenade. The said table was with an open-drawer was located outside and in front of the office of the accused within the premises of KPS Foundation, Inc. Hence, the instant case.

When arraigned, the accused pleaded not guilty to the offense charge. Thereafter, pre-trial ensued and trial proceeded with the prosecution presenting three (3) witnesses whose testimonies were stipulated by the defense to hasten the hearing of the petition for bail filed by the accused. These were the testimonies of P/Supt. Geovanni E. Ladeo — the team leader of the search team, PCI Patrich A. Elma — the complainant, and PO1 Rothcin B. Eroy — the seizing officer. The petition for bail was granted on March 7, 2019 and the accused was then given his temporary liberty.

Likewise, the supposed testimony of PO1 Mark Anthony A. Achivar — the arresting officer, and PO1 Jun H. Buca — the photographer, were also stipulated by the defense counsel (TSN dated August 23, 2019). On December 3, 2019, the prosecution presented the testimony of PEMSgt. Ceferino Torrecampo Jr. — the Evidence Custodian of EOD. Thereafter, the public prosecutor rested her case with the filing of the Formal Offer of Exhibits A, A-1, B, B-1, C, D, D-1, E, E-1, F, I, I-1, I-2, I-3, I-4, I-5, I-6, I-7, I-8, I-9, J, K, L, and M.

In this Demurrer to Evidence, accused manifested that the arguments raised in his motion to quash (Motion to Quash Search Warrant and/or to Suppress Evidence dated July 9, 2018) are adopted and reiterated for being material and relevant here. The said motion is anchored on the ground that the Search Warrant No. 1973 was issued by a court with no jurisdiction over the place where it was enforced and that there was no compliance with the basic constitutional and/or jurisprudential requirements in the issuance of a search warrant.

Accused also argues that among the facts stipulated upon between the prosecution and the defense was the contents of the Inventory Receipt of Confiscated/Seized/Recovered Items which states, inter alia, that were no items found in the office of the accused by the searching team. The hand grenade seized from the accused was found in an open drawer in another room which was separate from the room of the accused. Moreover, accused also puts into issue that the searching team conducted search in the vicinity of KPS Foundation, Inc. while the same was experiencing a brown out and this was admitted by the witnesses of the prosecution but not stated in their affidavits. Thus, the evidence of the prosecution is not sufficient enough to sustain a conviction based on a finding of guilt of the accused beyond reasonable doubt.

Hence, We Now Resolve.

After meticulously wading through the evidence of the prosecution, this Court is convicted that the affidavit and testimonies of the prosecution witnesses are insufficient to convict Rodrigo Olarte for the offense charged.

The essential elements in the prosecution for the crime of illegal possession of firearms, which include explosives, ammunitions or incendiary devices, are: (a) the existence of subject firearm, and (b) the fact that the accused who possessed or owned the same does not have the corresponding license for it (People vs. Herofil Olarte, G.R. No. 233209, March 11, 2019).

While the existence of the subject explosive was stipulated by the defense counsel, a close examination of the evidence of the prosecution reveals that the prosecution failed to establish that the subject hand grenade brought and presented to court by PEMSgt. Ceferino Torrecampo Jr., Chief of Explosive and Ordinance Division, General Santos City Police Office, during the hearing conducted on December 3, 2019, was the same object allegedly retrieved from the accused. During the hearing on the petition for bail conducted on February 20, 2019, the seizing office PO1 Rotchin B. Eroy was not able to identify the subject explosive that the found within the office premises of the KPS Foundation, Inc., and during the presentation of its evidence-in-chief, the prosecution failed to recall PO1 Eroy to the witness stand to identify the recovered evidence and the markings he made thereon.

Without the said identification of PO1 Eroy of the seized evidence, the Court cannot be certain whether the subject explosive indeed came from accused Olarte. This darkness the cloud as to his guilt of the offense charged.

More importantly, the Court finds that the prosecution failed to establish possession of the subject hand grenade, whether in its actual or constructive sense, on the part of the accused. Based on their individual affidavits and admissions during the hearing of the petition for bail (TSN dated February 20, 2019), the prosecution witnesses admitted that there were no illegal items found within the office of the accused. The subject explosive was inadvertently seen in the open-drawer of a table located outside and in front of the office of the accused, for which reason the prosecution in this case must prove the constructive possession of accused of the recovered item.

The concept of constructive possession for the crime of illegal possession punished by special laws was expounded by the Supreme Court in drugs cases. In the case of People vs. Camacho and Martinez (G.R. No. 233692, September 18, 2019), citing People vs. Tira (474 Phil. 152 (2004)), the issue of possession was mentioned thus:

“Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.”

While it is not necessary that the property to be searched should be owned by the person against whom the search warrant is issued, there must be sufficient showing that the property is under accused’s control or possession. As can be deduced from the jurisprudence cited above, constructive possession exists when the seized item is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found.

Records bear out, however, that the evidence of the prosecution are void of any evidence to show that accused is the President/CEO of KPS Foundation, Inc. to support the conclusion that the confiscated explosive found in the open drawer of the table outside his office is under his dominion and control or that he has the right to exercise dominion and control of the same since he is the head of the office. In the affidavits of the witnesses, they only mentioned that accused Olarte is the President/CEO of KPS Foundation, Inc. without stating their basis and in the course of the trial the prosecution failed to adduced any scintilla of evidence to bolster the same.

Nevertheless, event granting that the prosecution was able to establish that accused is the President/CEO of KPS Foundation, Inc. at the time the search was conducted, this Court is of the view that the retrieved evidence was not under the dominion and control of the accused since the same was found in the open drawer of a table outside the office room of the accused. To hold otherwise, would be tantamount to applying the concept of constructive possession too broadly. More so in this case wherein the prosecution failed to show any proof that accused had knowledge of the existence and presence of the subject hand grenade in the place where it was found. In sum, this Court finds that there is insufficient evidence to show accused’s guilt beyond reasonable doubt. The prosecution in this case clearly failed to show all the elements of the offense charged absent a showing of either actual or constructive possession by the accused. Having ruled on the lack of material or constructive possession by accused of the confiscated evidence, the Court deems it unnecessary to deal with the other issues raised by the accused in his Demurrer to Evidence.

WHEREFORE, premises considered, the Demurrer to Evidence filed by accused Rodrigo Macareal Olarte is hereby GRANTED. Accordingly, this case is hereby DISMISSED.

The object evidence in this case is hereby forfeited in favor of the government and to be disposed of in accordance with the law.

The surety bond posted by Bethel General Insurance and Surety Corporation for the temporary liberty of accused Rodrigo Macareal Olarte in the amount of Four Hundred Forty Thousand Pesos (P440,000.00) covered by Bail Bond No. JCR (2) 002566 dated 11 March 2019 is hereby ordered cancelled.

SO ORDERED. Given in Chamber this 21^st day of December 2020 in General Santos City, Philippines.