(UPDATE 6) CA acquits Smith of 'Nicole' rape

The Court of Appeals (CA) on Thursday acquitted US Marine Lance Corporal Daniel Smith of raping a Filipina in Subic back in 2005 and ordered his immediate release, saying the alleged rape was in fact a "spontaneous, unplanned romantic episode" between the two parties.

In a 71-page decision written by CA Associate Justice Monina Arevalo Zenarosa, and concurred with by Justice Remedios S. Fernando, Chairman of the Special 11th Division and Associate Justice Myrna Dimaranan-Vidal, the CA said Smith should be released immediately unless he is being held for any other lawful cause.

"No evidence was presented to show force, threat and intimidation applied by the accused upon Nicole," read the ruling, referring to the alias of the victim.

"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 cause," the CA said.

The appellate court’s decision said it believes the two parties were "carried away" by their passions on the night of the incident, and that there was no forced sexual intercourse.

The court said there is also no evidence that the victim was threatened so that she was forced to have sex with Smith, saying her only defense was that she was intoxicated that night.

"This court finds it deceptively posturing Nicole's portrayal of herself as a demure provinciana lass... On hindsight, we see this protestation of decency as a protective shield against her own indecorous behavior," the decision said.

The court added that the degree of Nicole's supposed intoxication was not clearly established, and that her resistance to Smith's actions by word of mouth does not suffice to establish that she indeed did not give her consent to the sexual intercourse.

"Resistance by words of mouth does not suffice to establish that she indeed did not give her consent to the sexual intercourse," the court said.

"What we see was the unfolding of a spontaneous, unplanned romantic episode with both parties carried away by their passions and stirred up by the urgency of the moment caused probably by the alcoholic drinks they took," it added.

The decision stated that it was not influenced by the sworn statement released more than a month ago by the victim, which stated she doubts if she was really raped.

The court said it reviewed the evidence presented before the Makati Regional Trial Court, and decided that rape was not proven to be "beyond reasonable doubt."

"A careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence, we must acquit," the decision stated.

The court also attacked the victim's credibility, saying her statements had numerous inconsistencies.

The CA decision is final and executory and can no longer be appealed.

Leak, Nicole affidavit not included

On Monday, the Supreme Court gave Smith's lawyers10 days to reply to a petition demanding that they be sanctioned for releasing the recantation of Smith's victim, Nicole.

The court said lawyers of the Sycip, Salazar, Hernandez and Gatmaitan firm should submit their comments on the petition asking the court to investigate Nicole's statement.

The petition was filed by Nicole's former lawyer Evalyn Ursua, former Senator Leticia Ramos-Shahani and the militant groups Gabriela and Bagong Alyansang Makabayan.

The court also ordered the petitioners to submit their plea to the Court of Appeals and gave CA Presiding Justice Conrado Vasquez, Jr. 90 days to investigate the alleged leakage of a draft ruling that absolved Smith of the rape.

The justices, in the Thursday decision, however, said they did not include this leaked decision, along with Nicole's recantation.

"Ultimately, it must be pointed out that in resolving the case, we disregard the alleged recantation of Nicole submitted on March 8, 2009. Nor did we open the sealed draft decision penned by retired Justice Agustin S. Dizon which was attached to the records," the CA said.

High-profile case

The Makati City RTC Judge Benjamin Pozon earlier found Smith guilty of raping "Nicole" in the back of a van in the company of fellow US Marines in November 2005, and sentenced the American to 40 years in jail. Smith's lawyers, however, filed an appeal before the CA.

The high-profile case prompted Washington to threaten to call off large-scale military exercises with Manila until Smith was transferred to a detention centre within the US embassy, where he remains two years on.

After the case went to the higher court on appeal, it acquired a new twist last month when the supposed victim made a fresh testimony casting doubt on her previous recollection that Smith had forced himself on her against her will.

Two years after Smith's conviction in 2006, Nicole fired her lawyer and issued a sworn statement notarized by Smith's lawyer saying that she was no longer sure about the events surrounding the rape.

"Possibly lost inhibitions"

In the five-page affidavit, Nicole admitted that she "possibly lost her inhibitions" and became intimate with Smith after drinking alcoholic mixed drinks with him when they met at a bar in Subic, Olongapo City on November 1, 2005.

"Looking back, I would not have agreed to talk with Smith and dance with him no less than three times if I did enjoy his company or was at least attracted to him since I met him for the very first time on the dance floor of the Neptune Club," said Nicole.

The woman has since left for the United States to live with her American boyfriend who she had met after the alleged rape.

Reactions of ma, lawyers

Susan Nicolas, whose daughter accused a US serviceman of rape last 2005, said she was saddened after hearing reports of the CA decision.

The mother of Nicole said she did not expect the CA would eventually acquit Smith.

Nicole’s mother also said the they would no longer appeal the CA decision to the Supreme Court.

Atty. Jose Justiniano, lawyer of Smith, said he is surprised and happy with the acquittal of his client.

Although he is happy with the decision, Justiniano said he was surprised by the speed of the release of the decision. He said he expected the decision on their appeal to be released in May or June.

Meanwhile, the lawyer who represented Nicole during the hearing of the rape case said they were not surprised by the CA decision to acquit the American servicemen.

Ursua, however, insisted that they still do not agree with the CA ruling.

“Hindi kami nagulat at naglabas ng acquittal,” she said. “Pero hindi kami sumasang-ayon na hindi naman napatunayan ang mga elemento ng pangagahasa... Nanindigan kami na napatunayan namin beyond reasonable doubt na talagang ginahasa si Nicole ni Daniel Smith.” With reports from Marieton Pacheco and Jeff Canoy, ABS-CBN News, RJ Rosalado, ABS-CBN News Zamboanga, and Agence France-Presse