CA acquits US serviceman Smith of rape charges

By Perfecto T. Raymundo Jr.

MANILA, April 23 — The Court of Appeals (CA) has acquitted United States Marine Lance Cpl. Daniel Smith of rape charges filed against him by Suzette "Nicole" Nicolas, thus reversing the earlier ruling of the Makati City Regional Trial Court (RTC) of life imprisonment for the US serviceman.

Three women justices of the CA 11th Division, namely: Associate Justices Monina Arevalo-Zenarosa, Remedios Salazar-Fernando and Myrna Dimaranan-Vidal issued the decision on Smith.

The three CA justices were convinced that no rape was committed.

"What we see was the unfolding of a spontaneous, unplanned romantic episode with both parties carried away by their passion and stirred up by the urgency of the moment caused probably by alcohol drinks they took, only to be rudely interrupted when the van suddenly stopped to pick up some passengers," said the CA in its 71-page decision.

The CA said that there was no threat, intimidation and force employed by Smith in the "sexual encounter" and that the prosecution failed to present evidence that force was used by the accused.

The CA also set aside the recantation affidavit of Nicole which she executed last March 12, 2009 before she left for the United States where she is now residing.

Nicole's affidavit says that she was not sure whether or not indeed she was raped on Nov. 1, 2005.

Justice Zenarosa, who penned the decision, stressed that they did not consider nor were they influenced in their decision by the publication of a draft resolution penned by CA Associate Justice Agustin Dizon, acquitting Smith of rape charges.

Dizon first handled the case of Smith at the CA. However, the former retired on June 24, 2008 which negated the issuance of the draft resolution and, in the process, the case was transferred to the CA 11th Division.

"Wherefore, on reasonable ground, the accused Lance Corporal Daniel Smith is hereby acquitted of the crime of rape as alleged in the information. He is ordered released immediately unless held for other lawful case," the CA decision said.

Smith was found guilty beyond reasonable doubt by Makati City Regional Trial Court (RTC) Branch 139 Presiding Judge Benjamin Pozon on Dec. 4, 2006.

He was found guilty of raping Suzette "Nicole" Nicolas, a Filipina in Subic Bay Freeport on Nov. 1, 2005.

The Makati City RTC sentenced him to suffer reclusion perpetua or life sentence which is equivalent to a 40-year jail term.

However, he was detained at the premises of the United States Embassy in Manila pending negotiations for his transfer to a detention facility under the control and supervision of Philippine authorities.

With the so-called "Subic rape case", the Visiting Forces Agreement (VFA) which governs the conduct of military exercises between Philippine and American troops on Philippine soil, has been put to limelight.

The Supreme Court (SC) upheld the "constitutionality" of the RP-US VFA. However, the agreement between US Ambassador to the Philippines Kristie Kenney and Foreign Affairs Secretary Alberto Romulo regarding the place of detention and custody of Smith was declared "unconstitutional".

With such "unconstitutionality" of Kenney-Romulo Agreement, negotiations are now underway for the transfer of the custody or place of detention to a facility supervised by Philippine authorities.

This is so, in the sense that the VFA has been put to test on whether how to handle the custody of an offending soldier of both Filipino and American nationality.

While the conviction of Smith was pending before the CA, rape victim Nicole flew to the United States leaving behind a supposed sworn affidavit purportedly recanting her earlier testimony before the Makati City RTC that she was raped by Smith. (PNA)

DCT/PTR

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