Republic of the Philippines

REGIONAL TRIAL COURT

Second Judicial Region
BRANCH XXIX (19)
Cauayan City, Isabela

PEOPLE OF THE PHILIPPINES,

Plaintiff,
CRIM. CASE NO. 19-11158
to 11160
-versus-
For: Violation of Sect. 5, 11, &
GENEMAR GARCIA y SALES 12, Art II, RA 9165
Accused.
X---------------------------------x

MOTION TO DISMISS
ON DEMURRER TO EVIDENCE
(WITH LEAVE OF COURT)

THE ABOVE-NAMED ACCUSED GENEMAR GARCIA y SALES, by counsel, with

prior leave granted by this Honorable Court, most respectfully demurs the
evidence of the prosecution through this Motion to Dismiss on Demurrer to
Evidence (Demurrer to Evidence for brevity) pursuant to Section 23, Rule
119 of the Revised Rules on Criminal Procedure and for this purpose, most
respectfully states that:

PREFATORY STATEMENT

The true hallmark of a civilized society is the guarantee of life, liberty,

and property of citizens. Any unnecessary and unreasonable intrusion of
State on the guaranteed rights of its inhabitants must be viewed with
extreme caution lest it will lead to the arbitrary flexing of the government’s
muscle.

For this purpose, no less than the 1987 Constitution of the Philippines
enumerate, in no uncertain terms, the rights of the every person to
guarantee that life, liberty, and property will not be taken lightly. More so,

1
the Fundamental Law emphasizes in strongest terms the right of an accused
before, during, and after the trial. Indeed, at the core of our criminal justice
system is the presumption of innocence of the accused until proven guilty.
Therefore, the prosecution must rely on the strength of its case rather than
of the weakness of the defense.

The basic principle in criminal prosecution is that accusation is not

synonymous with guilt. The accused is presumed innocent until the contrary
is proved by the prosecution. If the prosecution fails it fails utterly, even if
the defense is weak or, indeed, even if there is no defense at all.1

Thus, the High Court, in Patula vs. People of the Philippines2,

categorically instructed:

“In the trial of every criminal case, a judge must rigidly test the States
evidence of the guilt in order to ensure that such evidence adheres to the
basic rules of admissibility before pronouncing an accused guilty of the
crime charged upon said evidence. Nothing less is demanded of the judge,
otherwise, the guarantee of the due process of law is nullified. The accused
need nod adduce anything to rebut evidence that is discredit for failing
the test. Acquittal should then follow3.”

THE CASE

Accused was charged of the crime of violation of Section 5, Art II,

Republic Act No. 9165 otherwise known as the Dangerous Drugs Act of
2002 in the Information filed before his Honorable Court which reads as
follows:

“That on or about the 19th of January 2017 in the Municipality

of Alicia, Province of Isabela, Philippines and within the jurisdiction of
this Honorable Court, the said accused, not being allowed or
authorized by law to sell, deliver, and give away to other distribute
dangerous drug, did then and there willfully, and feloniously, and
knowingly sell, more or less 0.0882 grams of methamphetamine
hydrochloride locally known as shabu, a dangerous drugs to damage
and prejudice of the government.

CONTRARY TO LAW.”

The same accused also stands charged of the crimes of violation of

Section 11 of the same law, for possession of illegal drugs docketed as
Criminal Case No.91-11158 the information of which reads:

“That on or about the 19 th of January 2017 in the Municipality

of Alicia, Province of Isabela, Philippines and within the jurisdiction of

2
 this Honorable Court, the above named accused, without being
authourized by law to possess, did then and there willfully,
unlawfully, knowingly, and feloniously, have in his possession and
control, more or less 4.5924 grams methamphetamine hydrochloride
commonly known as shabu, a dangerous drugs, to the damage and
prejudice of the government.

CONTRARY TO LAW.”

An Information for violation of section 12 of the same law,

docketed as Criminal Case No.19-11160 was also filed before the sad
accused, which reads:

“That on or about the 19th of January 2017 in the Municipality

of Alicia, Province of Isabela, Philippines and within the jurisdiction of
this Honorable Court, the said accused, did then and there willfully,
unlawfully, knowingly, and feloniously, have under his control
assorted plastic sachet, assorted aluminum foil, lighter and scissors
an equipment instrument, apparatus or paraphernalia intended or fit
for smoking, consuming, administering or ingesting any dangerous
drugs into the body, without any authority of law, to the damage and
prejudice of the government.

CONTRARY TO LAW.”

On February 15, 2017, the accused was arraigned in Criminal Case

No.20-11159 while on May 22 2017 he was arraigned in the other cases in
which he pleaded not guilty to all the aforesaid charges. Thereafter, a joint
pre-trial was conducted on July 03 2017.

In the meanwhile, accused through counsel then filed a Petition for

Bail in Criminal Case No.20-11159, contending that the evidence against
him was weak. Said petition was then set for summary hearing so that the
prosecution could adduce evidence to show that the evidence against him
rather strong.

Unfortunately for the prosecution, it was only able to present PO2

Jayson Pascua on January 15, 2018 despite subpoena for the other
prosecution witnesses to appear and testify before the court. Thus, in an
order on February 5, 2018, this Honorable Court granted the petition of the
accused to post bail in the said criminal case finding that the evidence of
guilt is not strong. Accused then promptly posted his bail bond.

The presentation of the evidence-in-chief for the prosecution then

ensued. On 10September 2018, the prosecution was able to present SPO4
Gilbert R. Bustamante, one of the arresting officers, who identified the Joint
3
Affidavit of arrest and thereafter adopted the said document as his direct
testimony. He also identified the accused in an open-court identification.
The court then scheduled the cross-examination of the said witness on 29
October 2018.

But the hearing set on 29 October 2018 was postponed and

thereafter set on 14 January 2019. Again, the 14 January 2019 did not push
through as the said witness was not in court. He was not again in court on
18 February 2019. For this failure of the witness to appear despite
reasonable notice, the defense moved to strike out the testimony of the
said witness which the Honorable Court granted in its Joint Order dated
February 18, 2019

Parenthetically, despite the subpoena given to the other witnesses,

in the persons of SPO3 Jay Agustin, SPO2 Darwin Alog, and PO3 Marvin
Echanes, the said prosecution witnesses never appeared before the
Honorable Court. It is for this reason that the defense likewise moved for
the termination of the evidence for the prosecution. Without any objection
from the prosecution, the court granted the same and in an order dated 18
February 2019, the prosecution was given ten (10) days from notice within
which to file formal offer of evidence, furnishing a copy thereof to the
defense and the defense shall have ten (10) days to comment. The tentative
hearing for the presentation of the evidence for the defense was then set
on April 29, 2019.

On April 29, 2019, the defense informed the Honorable Court that
the prosecution has yet to file its Formal Offer of Evidence. Thus, the court
gave another ten (10) days for the prosecution to file its formal offer. On the
next hearing date however on 20 May, 2019, the prosecution again was not
able to file the said formal offer. The defense then moved that the right of
the prosecution to file its final offer shall be deemed waived. However, the
Court ruled that the prosecution should instead be given five (5) days from
the said date or until 25 May 2019 within which to file its formal offer of
evidence.

During the hearing on 11 June 2019, the prosecution again was not
able to file its formal offer. The defense was therefore constrained to
reiterate its motion that the prosecution should be declared to have waived
its right to file its formal offer of evidence and consequently the
presentation of evidence for the prosecution should be terminated. The
defense likewise intimated before the Honorable Court that it will file
motion to dismiss on demurrer to evidence due to the inherent weakness
of the prosecution’s evidence.

In an open court order, the Honorable Court resolved that the

prosecution be given, for one last time, five (5) days from 11 June 2019 or

4
until 16 June 2019 within which to file its formal offer. The Honorable Court
further ruled that after the expiration of the said date and that the
prosecution shall still fail to file the final offer, it will be construed as a
waiver on its part to file the same. The court likewise favorable ruled on the
intention of the defense to file its demurrer to evidence and thus, a leave
was given by the Honorable Court for the defense to file the said demurrer
to evidence ten (10) days from the prosecution’s filling of the Formal Offer
of Evidence of the prosecution of 20 June 2019. Thus, the accused has ten
[10] days from receipt thereof, or until 30 June 2019 to file the Demurrer to
Evidence. Since this Demurrer to Evidence shall be filled today, 26 June
2019, the same is seasonably filed.

GROUND FOR DISMISSAL

THE PROSECUTION HAS MISERABLY FAILED TO PROVE THE GUILT OF THE

ACCUSED BEYOND A REASONABLE DOUBT.

For clarity, herein accused shall discuss his arguments in seriatim.

ARGUMENTS AND DISCUSSION

The prosecution failed to authenticate the pieces of documentary that it

included in its Joint Formal Offer of Evidence; therefore, the said pieces of
documentary evidence must be expunged off from the record.

Despite the length of time given to the prosecution to file its formal
offer of evidence, from the Order dated 18 February 2019, reiterated during
the hearing on 219 April 2019, then on 20 May 2019, and finally on 11 June
2019, the prosecution still was not able to conform to the court order to file
the same. It was only on 20 June 2019, or after four (4) long months that
the prosecution was finally able to file its formal offer.

The Rules of Court provides that the court shall consider no evidence
which has not been formally offered. Rule 132, Sections 34 and 35 of the
Rules of Court provide in no uncertain terms, thus:

“Sec.34. Offer of Evidence. The court shall consider no

evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.

5
 Sec.35. When to make offer. As regards the testimony of a
witness, the offer must be made at the time the witness is called to
testify.

Documentary and object evidence shall be offer after the

presentation of a party’s testimonial evidence. Such offer shall be done
orally unless allowed by the court to be done in writing.”

A formal offer is necessary because judges are mandated to rest their

findings of facts and their judgements only and strictly upon the evidence
offered by the parties at the trial4. Its function is to enable trial judge to
know the purpose and purposes for which the proponent is presenting the
evidence5. On the other hand, this allows opposing parties to examine the
evidence and object to its admissibility6.

Strict adherence to the said rule is not a trivial matter. The High Court
in Constantino vs. Court of Appeals7 strongly lectured:

“Formal offer of once evidence is deemed waived after failing

to submit it within a considerable period of time. The court cannot
admit an offer of evidence made after a lapse because to do so
would condone an inexcusable laxity if not non-compliance with a
court order which, in effect, would encourage needless delays and
derail the speedy administration of justice8”

The strict adherence to the rule is further emphasized in the Heirs of Pedro
Pasag vs Sps. Parocha9 when the Court augustly cautioned:

“Applying the aforementioned principle in this case we find

that the trial court has reasonable ground to consider that petitioners
had waived their right to make a formal offer of documentary or
object evidence. Despite several extentions of time to make their
formal offer, petitioners failed to comply with their commitment x x x

Thus, the trial court is bound to consider only the testimonial

evidence presented and exclude the documents not offered.
Documents which may have been identified and marked as exhibits
during pre-trial or trial which were not formally offered in evidence
cannot in any manner be treated as evidence. Neither can such
unrecognized proof be assigned any evidentiary weight and value. It
must be stressed that there is a significant distinction between
identification of documentary evidence and its formal offer. The
former is done in the course of the pre-trial and trial is accompanied
by the marking of the evidence as an exhibit; while the latter is done
6
 only when the party rests its case. The mere fact that a particular
document is identified and marked as an exhibit does not mean
that it has already been offered as part of the evidence. It must be
emphasized that any evidence which a part desires to submit for
the consideration of the court must formally be offered by the party
otherwise, it is excluded and rejected10”.

Notably, during the Preliminary Conference Report, the prosecution

marked the following documentary exhibits:

Exhibit “A” Joint Affidavit of Arrest consisting of

two pages dated January 19, 2017

Exhibit “A – 1” Second page of the said Joint Affidavit

of Arrest

Exhibit “B” Affidavit of Poseur-Buyer consisting of

two pages

Exhibit “B – 1” Second page of the said Affidavit of

Poseur-Buyer

Exhibit “C” Affidavit of Investigator dated January

19, 2017

Exhibit “D” Police Report/Certification dated

January 19, 2017

Exhibit “E” Request for Laboratory Examination

dated January 19, 2017

Exhibit “F” Photograph of the evidence collected

Exhibit “G” Photograph of the suspect

Exhibit “H” Photograph of the motorcycle

Exhibit “I” Pre-Operation Coordination

Exhibit “J” Chemistry Report No. D – 018 – 2017

Exhibit “K”, “K-1”, to “K-3” Picture of Inventory of Evidence

Collected

Exhibit “L” Inventory of Evidence Collected

However, with the singular exception of the Police

Report/Certification dated January 19, 2017 marked as Exhibit “D” and the

7
affidavit of Investigator marked as Exhibit “C” which are identified by PO2
Jayson M. Pascua during the hearing on the petition for bail, all other
documentary exhibits earlier marked by the prosecution and which were
appended in the record of these consolidated cases were not properly
authenticated and identified in accordance with the rules during the trial. It
follows that all of the attachments made by the prosecutions should be
expunged and excluded from the case record for not having been properly
marked, exhibited, and offered as part of the evidence-in-chief for the
prosecution.

Concededly, the rule discussed above may call for some relaxation.
The prosecution may then contend that rules of procedure should be
applied in a very rigid, technical case as they are devised chiefly to secure
and not defeat justice. Be that as it may, but the Supreme Court has already
laid down the narrow exception to the relaxation of the rule on filing of
formal offer of evidence, none of which can the prosecution use to support
its cause.

The only possible instance in which this rule may be relaxed is when
there is voluminous documentary evidence which is inherently difficult to
collate, collect, and tabulate. The High Court ruled in Republic of the
Philippines vs. Sps. Gimenez11:

“Undeniable from the records of the case is that petitioner

was vigorous in prosecuting the case. The most tedious and crucial
stage of litigation and presentation has been accomplished. x x x It
presented vital testimonial and documentary evidence consisting of
voluminous record proving the gross disparity of the subject funds to
the spouses Gimenezes’ combined declared income which must be
reconveyed to the republic for being acquired in blatant violation of
the Constitution and the Anti-Graft Statutes.

This Court is not unmindful of the difficulty in gathering

voluminous documentary evidence in cases of forfeiture of ill-gotten
wealth acquired throughout the years. It is never easy to prosecute
corruption and take back what rightfully belongs to the government
and the people of the Republic12.”

Similarly, Heirs of Pasag vs. Sps.Parocha13 mentioned the said

exception to this rule, thus:

“The pre-trial guidelines and Sec.365 of Rule 132 jointly

considered, it is made clear that the party who terminated the
presentation of evidence must make an oral offer of evidence the
very day the party presented the last witness. Otherwise, the court
may consider the party’s documentary or object evidenced waived.
While Sec.35 of Rule 132 says that the trial court may allow the offer
8
 to be done in writing, this can be only tolerated in extreme cases
where the object evidence or documents are large in number, say
from 100 and above, and only where there is unusual difficulty in
preparing the offer14.”

It can be gleaned from these clear pronouncements that this rule

may only be relaxed when object evidence or documents are voluminous
making it difficult to prepare such offer, and always coupled with the
vigorous participation of the prosecution in prosecuting the case.
Unfortunately for the evidence or documents are overwhelmingly
voluminous. The prosecution has thus defaulted from its filing of its formal
offer of evidence. For such matter, the rule that evidence not formally
offered are deemed excluded stands.

With those pieces of evidence not submitted for the consideration of

the court, it necessarily follows that the prosecution was only able to
concoct barren and baseless allegations and accusations which were never
synonymous with guilt. From these discussions alone, acquittal of the
accused on failure of the prosecution to adduce evidence to make out a
case necessarily follows.

Even if they be admitted, the same cannot be utilized in order to

pinpoint the guilt of the accused as to the charges that he currently faces
before this Honorable Court. To emphasize:

 In the Joint Affidavit of Arrest marked as Exhibit – “A”,the

arresting officers were not presented in an open court. It
should be noted that it was only SPO4 Gilbert R. Bustamante
was initially presented before the Court but his testimony was
later on stricken off the record in a Joint Order by his
Honorable Court dated 18 February 2019 for his failure to
attend the scheduled cross-examination of his testimony
despite notice. The other arresting officers SPO3 Jay A. Agustin
and SPO2 Darwin G. Alog were never presented before the
court to authenticate the content of the Joint Affidavit of
Arrest. In other words, the said Joint Affidavit of Arrest is self-
serving and not authenticated, which means that the accused
was not given the opportunity to confronts the affiants in
violation of his constitutional right to be informed of the
nature and cause of the accusation against him and to meet
the witness face to face;

 The Affidavit of Poseur-Buyer marked as Exhibit – “B” was also

not properly authenticated and therefore is self-serving for
failure of the prosecution to secure the attendance of the
poseur-buyer in the person of PO3 Marvin Echanes. It should

9
 be noted that the open court testimony of the poseur-buyer is
very much needed in order to determine that indeed the illegal
sale transaction really took place. In this case, despite
subpoena and the widest latitude of time given to the
prosecution, it still failed to present the aforesaid poseur-
buyer. Hence the Affidavit of Poseur-Buyer must also be
excluded from the evidence of the prosecution and should be
expunged off from the record for gross violation of the
accused’ constitutional right to be informed of the nature and
cause of the accusation against him and to meet the
witnesses face to face;

 The Request for Laboratory Examination marked as Exhibit –

“E” should likewise be excluded for failure of the prosecution
to present for an open-court testimony to affirm the content of
the said request, Police Senior Inspector Prospero A. Agonoy.
For this matter, the said documentary evidence is a mere scrap
of paper which if allows to stand would infringe upon the very
constitutional right of the accused to be informed of the
nature and cause of the accusation against him and to meet
the witnesses face to face;

 The Photographs of the Evidence, Photographs of the

Accused, Photographs of the Motorcycle, and Photographs of
Inventory of the Evidence Collected marked respectively as
Exhibit “F”, Exhibit “G”, Exhibit “H”, and exhibit “K”, “K-1”, “K-
2”& “K-3” should likewise be excluded and expunged off from
the record for not having been marked, identified, and
authenticated in Accordance with the Rules of Court. The ones
who took the said photograph were never presented before
the open-court and therefore the accused was never given the
chance to confront the said witnesses. This is again a gross
violation of the accused’ constitutional rights to be informed
of the nature and cause of the accusation against him and to
meet the witnesses face to face;

 Finally, the Inventory of Evidence collected in compliance to

Sec 21 of RA 9165 marked as Exhibit – “L” should also be
excluded and expunged off from the record for not having
been properly marked, identified and authenticated in
violation of the Rules of Court. It should be noted that the said
Inventory of Evidence Collected does not bear any signature of
the evidence custodian who prepared the said inventory nor
concurred in by the investigator on-case. The insulating
witnesses appearing as witnesses in the alleged inventory on
the person of Brgy. Kagawad Francis G. Naoloban, Brgy.

10
 Kagawad Zaldy C. Carino both of Brgy. M.H. Del Pilar, Alicia,
Isabela and Bombo Radyo reporter Exequiel Quilang were
again never presented before the open court and therefore the
inventory becomes extremely doubtful. Again, this is in
violation of the rights of the accused to be informed of the
nature and cause of accusation against him and to meet the
witness face to face.

The lone testimony of PO2 Jayson Pascua is very weak enough to cast
even the minutest trace of guilt on the part of the accused.

It must be remembered that there is only one witness that the

prosecution has successfully presented before the trial court and he was
only presented during the petition for bail. Further, it should be noted that
the testimony of SPO4 Bustamante was stricken off from the record as
found on the 18 February 2019 Order of this Honorable Court since the said
witness failed to appear for the cross-examination despite due notice.
While the chemist could have been presented before the Court, in the
record of the accused, such is not found.

Now then, even if the Court were to consider the singular testimony
of PO2 Jayson Pascua as the prosecution’s evidence-in-chief, the said
testimony cannot naturally turn over the constitutional presumption of
innocence accorded to the accused.

During the petition for bail, PO2 Jayson Pascua testified among others
that as the police investigator, the pieces of drug related evidence were
turned over to him by the seizing officers as well as the accused who was
turned over to him by the arresting officers and that he prepared the case
referral, the requests for drug examination and laboratory examination and
that the drug related evidence was later turned over to the Santiago City
Crime Laboratory by PO2 Inocencio Dela Cruz, Jr.

The Honorable Court augustly observed that this testimony of the

PO2 Jayson Pascua cannot give any strength to the prosecution’s cause. In
its Order dated 05 February 2018, this Honorable Court magisterially
pronounced:

“It is regrettable that with the singular testimony of PO2 Jayson

Pascua in the petition for bail, the court does not have the
wherewithal to determine the strength of the prosecution’s
evidence. Admittedly, he did not have any participation in the

11
 actual buy-bust operation conducted by his fellow police officers
against the accused on January 19, 2017.”

With that pronouncement, the testimony of PO2 Jayson Pascua is

therefore sidelined and will not in any way give weight to the contention of
the prosecution relative to these consolidated cases.

With no more evidence presented, it follows that the prosecution

was not able to successfully prove the existence of the elements of each of
the crimes imputed against the accused. In Criminal Case No. 11159, the
accused is charged with violation of Section 5, article II, RA 9165. The
elements of the said crime are as follows: (1) the identity of the buyer and
the seller, the object and the consideration; and (2) the delivery of thing
sold and the payment therefor.”

In Criminal Case No. 11158, the accused is charged with violation of

Section 11, Article II, RA 9165, the elements of which are: (1) the accused is
in possession is not authorized by law; and (3) the accused freely and
consciously possessed the drug.”

Finally, in Criminal Case No. 11160, the accused is charged with

violation of Section 12, Article II, RA 9165, which has the following
elements: (1) the accused is in possession or control by the accused of any
equipment, apparatus or other paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body; and (2) such possession is not authorized by
law.

It is an elementary rule that in cases of illegal sale and illegal

possession of dangerous drugs, the dangerous drugs seized from the
accused constitutes the very corpus delicti of the offense. Thus, it is of
utmost importance that the integrity and identity of the seized drug must
be shown to have been duly preserved. The chain of custody rule performs
this function as it ensures that the unnecessary doubts of concerning the
identity of the evidence are removed.

For the violation of Section 12, Article II, RA 9165, the presentation of
the said equipment, apparatus, or other paraphernalia which constitute the
corpus delicti of the offense should likewise be identified and presented in
order to dispel any doubt concerning their identity.

In both illegal sale and illegal possession of shabu, conviction cannot

be sustained if there is a persistent doubt on the identity of said drug. The
identity of the shabu must be established with moral certainty. Apart from
showing that the elements of possession or sale are present, the fact that
the shabu illegally possessed and sold is the same degree of certitude as
that needed to sustain a guilty verdict15

12
 The chain of custody requirement performs this function in that it
ensures the unnecessary doubts concerning the identity of the evidence
are removed. Chain of custody is defined as “duly recorded authorized
movements and custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping, to presentation in court for destruction.”

In People vs. Havana16, the Court expounded on the custodial chain

procedure in this wise:

“As a method of authenticating evidence, the chain of custody

rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in question is
what the proponent claims be. It would include testimony about
every link of the chain, from the moment the item was picked up to
the time it is offered in evidence in such a way that every person
who touched the exhibit would describe to and from whom it was
received, where it was and what happened to it while in witness’
possession, the condition in which it was received, and the
condition in which it was delivered to the next link in the chain.
These witnesses would then describe the precautions taken to
ensure that there had been no change in the condition of the item
and no opportunity for someone not in the chain to have
possession of the same.

While the testimony about a perfect chain is not always the

standard because it is almost always impossible to obtain, an
unbroken chain of custody becomes indispensable and essential
when the item of real evidence is not distinctive and is not readily
identifiable, or when its condition at the time of testing or trial is
critical, or when a witness has failed to observe its uniqueness. The
same standard obtains in case the evidence is susceptible of
alteration or tampering - without regard to whether the same is
advertent or otherwise not – dictates the LEVEL OF STRICTNESS in
the application of the chain of custody rule”.

Thus, as a general rule, four links in the chain of custody of the confiscated
items must be established as discussed in People vs. Nandi17:

First, the seizure and marking, if practicable, of the illegal drug

recovered from the accused by the apprehending officer; second, the
turnover of the illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating officer of
the illegal drug to the forensic chemist for laboratory examination;

13
 and fourth, the turnover and submission of the marked illegal drugs
seized from the forensic chemist to the court.

Marking is the placing by the arresting officer or the poseur-

buyer of his or her initials and signature on the items after they
have been seized. It is the starting point in the custodial link. It is
vital that the seized items be marked immediately since the
succeeding handlers thereof will use the markings as reference. The
chain of custody rule also requires that the marking of the seized
contraband be done in the presence of the apprehended violator
and immediately upon confiscation.”

The first chain of custody was therefore not established even in the
minutest attempt. The alleged poseur-buyer PO3 Marvin Echanes, PNP
Member of Alicia Police Station was not presented in open court. The
arresting officers SPO3 Jay A. Agustin and SPO2 Darwin G. Alog were not
also presented before the court. SPO4 Gilbert Bustamante, another
arresting officer, was presented but his testimony was later on stricken off
from the record. It should be noted that the testimonies of the poseur-
buyer and the arresting officers are vital for the establishment of an
unbroken chain of custody as their contribution to the chain is primordial.
To stress, the poseur-buyer and the arresting officers’ participation
marked the starting point in the custodial link. Thus, without them, the
link could not be established.

Likewise, insulating witnesses appearing as witnesses in the alleged

inventory in the person of Brgy.Kagawad Francis G. Naoloban, Brgy.
Kagawad Zaldy C. Carino both of Brgy.M.H. Del Pilar, Alicia, Isabela and
Bombo Radio reporter Exequiel Quilang were again never presented before
the open court angd therefor the inventory becomes extremely doubtful.it
should further be noted that the said Inventory of Evidence Collected does
not bear any signature of the evidence custodian who prepared the said
inventory nor concurred in by the investigator on-case.

All in all, the prosecution failed to make out a case which leads to
these poorly built-up cases against the accused. The prosecution was given
the liberty of time to secure their witnesses aided with the subpoena from
this Honorable Court, but for reasons maybe known to the prosecution, the
prosecution miserably failed to do so. If indeed the prosecution has airtight
cases against the accused, it should have pursued it up with vigorous
barrage of prosecution. But it did not.

Truly in these joint cases, the prosecution rides for legal war, but not
for victory!

The propriety of the dismissal of the case on demurrer to evidence

14
Having intensively discussed that the prosecution has insufficient evidence
to support the judgment of conviction against herein accused, it follows
that this Demurrer to Evidence is properly filed.

Section 23, Rule 119 of the Rules of Court provides:

“Sec. 23. After the prosecution rests its case, the court may
dismiss the action on the ground of insufficiency of evidence (1) on
its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or
without leave of court.

Demurrer to evidence, as jurisprudentially defined, is an objection by

one of the parties in an action, to the effect that the evidence which his
adversary produced is insufficient, in point of law, whether true or not, to
make out a case or sustain the issue. The party demurring challenges the
sufficiency of the whole evidence to sustain a verdict. The court, in passing
upon the sufficiency of the evidence raised in a demurrer, is merely
required to ascertain whether there is competent or suffiecient evidence to
sustain the indictment or to support a verdict of guilt18.

On the other point, the accused is well-informed of the principle that

“the granting of the demurrer to evidence should x x x be exercised with
caution, taking into consideration not only the rights of the accused but also
the right of the private offended party to be vindicated of the wrongdoing
done against him, for if it is granted, the accused is acquitted and the
private complainant is generally left with no more remedy19.”

However, it must be borne in mind that in this instant case, there is

no offended party to speak of. This is a legal battle between the state and
the accused, with no private complainant sandwich in between. It follows
that this demurrer of evidence may be granted without any offense to a
private offended party.

On a side note, the motor vehicle 20 of the accused has also been
impounded at the Alicia Police Station, Alicia, Isabela by virtue of the filing
of the above entitled-cases. As the prosecution was not able to make out a
case and was not able to adduce evidence which can sustain the guilt of the
accused, it follows that the release of the said motor vehicle to the accused
is now in order as the said motor vehicle was never established by the
prosecution to be an instrument which facilitated him in the commission of
the crime. Again, the commission of the crime was not established by the
prosecution, hence, there is no more a need to restrain the accused from
now possessing the said motor vehicle.

15
 CONCLUDING STATEMENT

To recapitulate, considering that no evidence was presented by the

prosecution directly pointing the accused as the culprit in each cases, the
accused must be acquitted pursuant to her constitutional right to be
presumed innocent.

The lack of clear and positive evidence and the lack of material
witness or witnesses that will testify on the overt acts allegedly committed
by the accused rendered the already insufficient evidence for the
prosecution inherently weak and insufficient to prove the guilt of the
accused beyond a reasonable doubt.

Considering the foregoing factual and legal circumstances attending

the instant criminal cases against herein accused, it is the strong contention
of herein accused that the instant criminal case filed against them should be
dismissed at its present stage on the ground that the evidence presented
and offered by the prosecution is insufficient to prove his guilt beyond a
reasonable doubt.

Since 2017 when these cases commenced, herein accused has never
doubted the power of this Honorable Court to dispense justice. He never
missed any opportunity to attend every hearing of this case because he
believes that such active participation will eventually give him the justice he
rightfully deserves. It is now mid-2019. With the prosecution utterly failing
in its duty to prove through the required quantum of evidence the guilt of
this accused, it is high time to grant to herein accused the prayer he has had
more than two years ago until today – the immediate dismissal of these
cases.
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Court that this Motion to Dismiss on Demurrer to Evidence
With Leave of Court be ADMITTED and DULY CONSIDERED in determining
that the Evidence presented by the prosecution to prove the guilt of the
accused, GENEMAR GARCIA y SALES is INSUFFICIENT to convict him to the
crime charged which would consequently warrant the dismissal thereof. In
correlation thereof, the accused prays that the motor vehicle which is
presently impounded at the Alicia Police Station be RELEASED in the
accused favor. Finally, the bail bond posted by the accused for his
temporary liberty be likewise RELEASED in his favor.

Other reliefs, just and equitable under the circumstances, are likewise
prayed for.

Santiago City, for Cauayan City, Isabela. 25 June 2019.

16
 THE LAW OFFICE OF GULAN
Counsel of the Accused
Santiago City
Email:gulanlawoffice@gmail.com
Tel.No: (123) 143-5678

By:
ATTY. VIRGO M. GULAN
MCLE Compliance Exempted/Passed the Bar Exams 26 April 2018
PTR NO.2660682/Santiago City/03-08-2019
IBP No. 067340/01-12-2019
Roll No.71583/06-07-2018

ATTY. JOY P. UYAMMI

MCLE Compliance Exempted/Passed the Bar Exams 26 April 2024
PTR NO.6373230/Santiago City/03-08-2025
IBP No. 697923/01-12-2025
Roll No.67890/06-07-2024

With my Conformity:
GENEMAR S. GARCIA
Accused

NOTICE OF HEARING:

THE GOVERNMENT PROSECUTOR

Office of the Provincial Prosecutor
Cauayan City, Isabela
ATTY.LIZA C. CLAVERIA-DY
Branch Clerk of Court
Regional Trial Court, Branch 19
Cauyan City, Isabela

Greetings: Please notice that the undersigned counsel shall submit the
foregoing motion for the kind consideration and resolution of the

17
Honorable Court on 01 July 2019, Monday, at 8:30 o’clock in the morning.
Thank you.

18