Republic of the Philippines REGIONAL TRIAL COURT Ninth Judicial Region Branch 13 Zamboanga City PEOPLE OF THE PHILIPPINES,

Plaintiff, -versusFRADZKHAN ISMAEL Y SARAHAN, Accused,

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CRIMINAL CASE -forVIOLATION OF R.A. 9995

MOTION WITH LEAVE OF COURT TO FILE DEMURRER TO EVIDENCE

COME NOW, the ACCUSED, by the undersigned counsel and to this Honorable Court most respectfully avers: 1. That the Prosecution has already rested its case and based on the testimonial, documentary and object evidences it presented in court, the prosecution failed to establish the guilt of the accused beyond reasonable doubt; 2. That in order to abbreviate the proceeding of this case and not to waste the time of this Honorable Court, it is earnestly pleaded to allow the accused to file Demurrer to Evidence WITH LEAVE OF COURT to be able to point out in detail the weakness of the prosecutions evidence necessitating the dismissal of this case; 3. That to abbreviate further the proceeding, the defense has also submitted with this motion the said demurrer to evidence in order not to delay the entire proceeding; 4. That in the event the said demurrer to evidence will not be given due course by this Honorable Court, the accused nevertheless be allowed to present evidence for his defense.

PRAYER
WHEREFORE, foregoing premises considered and in the interest of justice, it is most respectfully prayed to this Honorable Court to grant herein Motion, with prior leave of court, to file demurrer to evidence and to admit said demurrer to evidence, which is hereto attached, once the motion was granted. Other reliefs and remedies available under the premises are likewise prayed for. Zamboanga City, Philippines, November___, 2011. By: ATTY: RADIYA P. ISTARUL Counsel for the Defense Roll No. 000000 IBP No. 031906

NOTICE
Atty.________________ The Clerk of Court RTC Branch 13, Zamboanga City GREETINGS: Please submit the forgoing MOTION to the Honorable Court for its consideration, immediatrly upon receipt hereof.

Zamboanga City, Philippines, November__, 2011.

ATTY: RADIYA P. ISTARUL Counsel for the Defense Copy Furnished: Atty. Vine Perocho Prosecutors Office Zambonga City

Republic of the Philippines REGIONAL TRIAL COURT Ninth Judicial Region Branch 13 Zamboanga City PEOPLE OF THE PHILIPPINES, Plaintiff, -versusFRADZKHAN ISMAEL Y SARAHAN, Accused,
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CRIMINAL CASE -forVIOLATION OF R.A. 9995

DEMURRER TO EVIDENCE (With Leave of Court)

COMES NOW, the ACCUSED, FRADZKHAN ISMAEL y SARAHAN, in the above entitled case, through the undersigned counsel and to this Honorable Court, most respectfully submits the herein Demurrer to evidence on the ground that:

THE PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.

STATEMENT OF THE CASE

The accused was charged in the above- entitled case under the following information docketed as Criminal Case No. 22642 to wit:

INSERT THE STATEMENT OF FACTS IN THE INFORMATION, DONT HAVE SOFT COPY OF INFORMATION. CONTARY to LAW

In the presentation of evidence, the prosecution presented the following witnesses:

1. Francisco Gregorio- Police computer expert .

He testified that he conducted a forensic examination on the content of a hardrive upon written request from Investigator Rodel Laejado. He also identified a Certification of his Report.

2. Akmad Khan Kipli- Globe Vice President.

Both the prosecution and the defense agreed to dispense with his testimonies and settled to enter into stipulation that he was the vice president of Globe Mackey Incorporated; that he received a request from the PNP Zamboanga City requesting for subscribers information on IP address 102.220.012.12; that he ordered a person to look if there is such subscribers information in their data base and the subscriber behind the said address; that he issued a certification that the said IP address is subscribed by JAYKEE SOLAIMAN of Mampang, Zamboanga City.

3. Jaykee Solaiman- Owner of Jaykee Speed Internet Caf.

He testified that Fradzkhan Ismael frequented his shop and that at around 7:00 pm, Mr. Ismael entered his shop and use the computer unit number 1.

4. Kimberly Ilul Complianant

She testified that she was the girlfriend of Mr. Fradzkhan Ismael, that they bought a video camera for the recording of their anniversary celebration, that at about 3:30 they went to Jiverly hotel, that upon checking in in the hotel, she finally decide to give herself wholly to Fradzkhan Ismael, that two months later they broke up and that she received a text message from her friend informing her of their video circulating in the internet. She also identified Mr. Fradzkhan Ismael as the sender of the said video.

DISCUSSION/ARGUMENTS
I- Testimonies of the witnesses does not prove the guilt of the accused beyond reasonable doubt.

Mr. Jaykee Solaiman testified that he was on his shop on August 9, 2011 from 6:00 pm to 8:00pm of the same day and that Fradzkhan Ismael went to his shop on that same day. Accordingly, he testified during the cross examination in the following manner;

Q: Mr. Witness, you said a while ago that you were on your shop last august 9, 2011, am I right? A: Yes. Q: You also said that Mr. Ismael entered your shop on the same day, am I right? A: Yes. Q: And what was Mr. Fradzkhan doing in your shop? A: He asked me if I can make some repairs in his laptop. Q: When you mean repair Mr. Witness, What kind of repair was it? A: A repair of the hard drives off his laptop maam, because his laptop malfunctioned. Q: Was he bringing his laptop Mr. witness on that same day when he went to your shop? A: Yes maam. Q: And what did you do Mr. witness? A: I told him to live his laptop so that I can make the necessary repairs? Q: And how long did the repair of the laptop take place? A: 3 days maam.

(TSN, November __, 2011, Page 19)

The testimony of the witness will show that the laptop of the accused Mr. Fradzkhan Ismael was not in his possession when the alleged video was uploaded on the internet. Furthermore, the only copy of Mr. Ismael was in that said laptop. Hence it was impossible that Mr. Fradzkhan Ismael uploaded the video without a copy of the said video, and also since the repair of the laptop lasted for three days.

Thus, it can be concluded, that Mr. fradzkhan Ismael never uploaded the video because of the circumstances mentioned.

Section 4(d) of RA 9995 states that;

To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, Internet, cellular phones and other similar means or device. As stated To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act. Constitutes the probited acts in RA 9995, however, there was no copy of the video in the possession of the accused during the alleged uploading since his copy was in the laptop. Therefore, there was no violation to speak of.

Mr. Akmad Khan Kipli testified that the IP address was subscribed by JAYKEE SOLAIMAN in Mampang, Zamboanga City. Accordingly he testified during the direct examination in the following manner;

Q: And what is the content of this certification? A: The IP address is subscribed by Jaykee solaiman of Mampang, Zamboanga City and we issued a reply to such request in a form of a certification.

(TSN, November __, 2011, Page 30)

The IP address is subscribed by Jaykee Solaiman. Nowhere in his testimony that it mentions any subscription by Mr. Ismael. Hence, it can be concluded that, Mr. Ismael did not upload the video.

Lastly, Ms. Kimberly Ilul testified that they bought a video camera to commemorate the celebration of their anniversary by taking a video on the night

of their anniversary. And that it was with her consent. She testified during the cross examination in the following matter.

Q: Ms. Ilul, you said a while ago that you bought a video camera last August 8, 2011, am I right? A: Yes. Q: for what is that camera Ms. Witness? A: It was for the recording of our anniversary celebration with Mr. Ismael maam. Q: Did Mr. Ismael threatened you or forced you to buy the camera? A: No sir, we both agreed. Q: what do you mean by you both agreed? A: we both agreed to buy the camera, to take a video of ourselves on our anniversary celebration.

(TSN, November __, 2011, Page 50)

Mr. Ismael never threatened, intimidated nor forced Ms. Ilul when they took the video of their sexual act. Ms. Ilul herself consented to the taking of such video. Section 4 (a) of RA 9995 states to wit: INSERT SECTION 4A.

Hence, Mr. Fradzkhan Ismael, never violated the said section because the taking of the video of their sexual act was WITH CONSENT off Ms. Ilul.

It is well- entrenched rule in criminal law that the conviction of an accused must be based on the strength of the Prosecutions evidence and not on the weakness or absence of the evidence of the defense . (PP vs Teves, 356 SCRA 14)

The overriding consideration is not whether the Court doubt the innocence of the accused but whether it entertains a reasonable doubt as to her guilt. ( PP vs Cabaya, 359 SCRA 111)

The prosecution has the burden of proof in establishing the guilt of the accused beyond reasonable doubt and the weakness of the defense does not relieve it of this responsibility. The accused does not have to prove his innocence because it is presumed. ( People vs Omega, 76 SCRA 262; People vs Escalante, 238 SCRA 554)

Conviction should be made only on the basis of strong clear and compelling evidence that establishes the guilt of the accused beyond reasonable doubt. ( People vs Villagonzalo, 238 SCRA 215)

All told, the totality of the evidence presented in this case does not support the guilt of the accused for violation of RA 9995, since the prosecution failed tto prove the beyond reasonable doubt the elements of the offense. Following the constitutional mandate, when the guilt of the accused has not been proven with moral certainty, as in this case, the presumption of innocence prevails and his exoneration should be granted a s a matter of right.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that the instant demurrer to evidence be granted and order the acquittal of the accused for failure of the Prosecution to prove his guilt beyond reasonable doubt. Zamboanga City, Philippines, November __, 2011. By: ATTY: RADIYA P. ISTARUL Counsel for the Defense Roll No. 000000 IBP No. 031906

Copy Furnished: Atty. Vine Perocho Prosecutors Office Zambonga City

Republic of the Philippines REGIONAL TRIAL COURT Ninth Judicial Region Branch 13 Zamboanga City PEOPLE OF THE PHILIPPINES, Plaintiff, -versusFRADZKHAN ISMAEL Y SARAHAN, Accused,
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CRIMINAL CASE -forVIOLATION OF R.A. 9995

ORDER
This resolves the Demurer to evidence filed by the above- named accused, through counsel, on the ground that the pieces of evidence is not sufficient to prove their guilt beyond reasonable doubt.

Record shows that accused is charged with violation of Sec. 4(d) of RA 9995 in an information which reads: INSERT THE STATEMENT OF FACTS IN THE INFORMATION, DONT HAVE SOFT COPY OF INFORMATION. Same as the statement of facts in demurer to evidence. The accused pleaded not guilty. After pretrial, trial ensued.

The prosecution presented Jaykee Solaiman, Francisco Gregorio and Kimberly Ilul. And both parties entered into sripulation in lieu of the testimony of the Vice President of Globe Mackey Incorporated akmad Khan Kipli. The testimony of the prosecution may be summarized as follows.

On April 8, 2011, Ms. Kimberly Ilul together with the accused bought a video camera for the celebration of their anniversary. On that same day, they proceeded to Jiverly hotel where the alleged video of their sexual act was taken. Two months later, they decided to break up and that on August 10, 2011 she received a text message from her friend informing her of the video circulating in the internet, and that said video was the video she and Fradzkhan took during their anniversary. It was later found out that Mr. Fradzkhan Ismael was the sender of the video.

Upon filing of the complaint, Police Investigator Rodel Alejado then conducted the investigation.

On August _, 2011, Mr. Jaykee Solaiman owner of Jaykee Interne Caf agreed in writing to the request of investigator Alejado that the computer be subject to forensic examination. The said computer was allegedly used in uploading the video in the internet. Moreover, Mr. Solaiman testified that he knows Mr. Ismael because he frequently visits his shop.

On August_, 2011, Mr Francisco Gregorio Police Forensice Examiner received a request from the PNP, Zamboanga City requesting to conduct forensic examination on the hard drive, with serial number 123456abc, of the computer they submitted. Thereafter, he undertook the forensic examination on the content of the hard drive and issued a report thereto. It was found out that a video file was uploaded in the internet at around 7 pm of august 10, 2011. Said file was sent via yahoo mail with sender account fradzkhan@yahoo.com date and time stamp 10 august 2011/1911H from IP address 102.220.012.12.

Mr. Jaykee Solaiman corroborated with Mr. Akmad Khan Kipli on material points.

The parties stipulated on the following facts in lieu of the testiomony of Globe Mackey Vice President Akmad Khan Kipli:

1. That Mr. Akmad Khan Kipli is the vice president of Globe Mackey Incorporated; 2. That on August _, 2011, he received a request from the PNP Zamboanga City requesting for subscribers information on IP address 102.220.012.12; that he ordered a person to look if there is such subscribers information in their data base and the subscriber behind the said address; 3. That he issued a certification that the said IP address is subscribed by JAYKEE SOLAIMAN of Mampang, Zamboanga City. Successful prosecution for the publishing or broadcasting a video of a sexual act requires a perfunctory presentation of evidence establishing the element of the crime and the guilt of the accused. The State values the dignity

and privacy of every human person and guarantees full respect for human rights. Toward this end, the State shall penalize acts that would destroy the honor, dignity and integrity of a person. (Section 2, RA 9995) One could just imagine the pain and the effects of publishing or broadcasting a sexual act to a woman, young age at that. Showing your private parts to the whole world, showing an act that one should consider as private.

The testimonies of the witnesses and the evidence presented is sufficient to prove the guilt of the accused beyond reasonable doubt. RA 9995, penalizes the act of taking photo or video coverage of a person or group performing sexual act, the act of selling, copying, reproducing, broadcasting or cause the same. Notwithstanding the consent of the person involved. The testimony of Ms. Ilul that she consented to the taking of the video of their sexual act does not relieve the defense of their guilt nor weaken the prosecutions evidence. Evidently, the prosecution has proven beyond reasonable doubt the indispensable element of RA 9995.

WHEREFORE, in consideration of the foregoing, the Demurrer to Evidence filed by the above- named accused is hereby DENIED. Consequently, tis case is set for judgment. SO ORDERED.

This __day of November 2011 at Zamboanga City, Philippines.

Presiding Judge
Copy furnished: Atty. Vine A. Perocho Atty. Radiya P. Istarul City Jail City Prosecutors office, Z.C. Navarro St. San Jose Cawa-Cawa, Z.C. Zamboang City