Court of Appeals acquits Smith, orders release

MANILA, Philippines - US Marine Lance Corporal Daniel Smith was acquitted yesterday of the crime of rape and ordered immediately released from detention after the Court of Appeals (CA) ruled that his sexual tryst with “Nicole” was “a spontaneous, unplanned romantic episode,” and that they were “carried away by their passions.”

The CA said “the romantic episode” was “only rudely interrupted” when the van carrying them “suddenly stopped to pick up some passengers.”

In reversing Smith’s conviction, the CA said no evidence was presented in court to show that the American had employed force, threat and intimidation on Nicole.

“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 alcoholic drinks they took, only to be rudely interrupted when the van suddenly stopped to pick up some passengers,” read the CA decision.

The CA said it did not consider the reported recantation of Nicole last month, as well as the reported leakage of a draft decision of retired Associate Justice Agustin Dizon, but decided on the merits of the case.

“As in this case, 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,” read the CA decision.

The CA said the Makati Regional Trial Court ignored and overlooked circumstances surrounding the intoxication of Nicole and contusions on her body when it convicted Smith of the crime of rape.

“The degree of Nicole’s supposed intoxication was not clearly established,” read the CA decision.

The CA said Dr. Kenneth Go, a toxicology expert, testified in court that no blood test was conducted on Nicole, which could have proven her intoxication.

“The degree of Nicole’s supposed intoxication was not clearly established,” read the CA decision.

“From the narration, after draining all those drinks of Sprite Vodka, B-52s, Singaporean sling, B-53 and half a pitcher of Bullfrog, although feeling dizzy, she danced with Smith through all four songs for about 15 minutes. She did not drop on the floor nor did she vomit.”

The CA said the trial court based its findings of Nicole’s intoxication on “mere observations of witnesses,” not on scientific grounds.

“If Nicole were really drunk, she would have had a hard time rising up, much more standing up, or she would have just dropped, a common experience among Filipino girls,” read the CA decision.

The CA rejected the trial court’s findings that “there may be forcible entry” to explain the contusions in Nicole’s genitals.

“Even in consensual sex, contusions could be inflicted by finger grabs, as in Nicole’s case,” the CA decision quoted the testimony of Dr. Rolando Marfil Ortiz II, who was presented as medico legal officer.

Citing a 1999 case, the CA said, “When there appears on record that the trial court has overlooked, ignored or disregarded some fact or circumstance of weight or significance that, if considered, would alter the results, this Court may disregard the findings of the trial court and make its own conclusion.”

The CA described as “deceptive posturing” the portrayal of Nicole as “a demure provinciana lass.”

“Tearfully, bewildered, alone and confused, in a strange place, dumped in a curb literally with her pants down, she remembered her mother and what she would say,” read the CA decision. “She remembered too, her boyfriend Brian. She had to hit back in the only way she could – to salvage, at least, a vestige of her self-esteem.”

The CA decision was written by Associate Justice Monina Arevalo- Zeñarosa. Two other women associate justices of the CA’s special 11th division – Remedios Salazar-Fernando and Myrna Dimaranan-Vidal – concurred with the decision.

Smith, a participant in the Balikatan military exercises, was convicted of raping Nicole on Nov. 1, 2005 by Makati Regional Trial Court Judge Benjamin Pozon.

Smith was sentenced to a maximum of 40 years in prison in December 2006. He appealed his conviction to the CA.

Nicole retracts rape allegations

In her five-page affidavit executed before she flew to the United States last month, Nicole said she had been bothered by her conscience and started to doubt if she was really raped by Smith.

“My conscience continues to bother me realizing that I may have in fact been so friendly and intimate with Daniel Smith at the Neptune Club that he was led to believe that I was amenable to having sex or that we simply just got carried away,” read the affidavit.

“I would rather risk public outrage than do nothing to help in ensuring that justice is served.”

Nicole said that while recalling her testimony before the trial court that Smith kissed her lips and neck and held her breast inside the van, she started to wonder how she could recall those moments when witnesses told the court that she passed out and looked unconscious when she was brought to the van by Smith.

“How could I have resisted his advances given this condition?” read the affidavit.

“Daniel Smith and I were alone on the third row of the van which had limited space and I do not recall anyone inside the van who held my hand or any part of my body. What I can recall is that there was very loud music and shouting inside the van.

“With the events at the Neptune Club in mind, I keep asking myself, if Daniel Smith wanted to rape me, why would he carry me out of the Neptune Club using the main entrance in full view of the security guard and the other customers.

“Why would the van park right in front of Neptune Club? Why would Daniel Smith and his companions bring me to the sea wall of Alava Pier and casually leave this area that was well lighted and with many people roaming around?” she added.

The victim, who reportedly flew to the US after receiving P100,000 in damages from Smith and terminating the services of her lawyer, also believes that if she was really raped by Smith, he and his companions would have dumped her instead in a dimly lit area along the highway going to Alava Pier to avoid detection.