State v. Mesquita

• Decision Date: 26 April 1972
• Docket Number: No. 1,CA-CA,1
• Citation: 496 P.2d 141,17 Ariz.App. 151
• Parties: STATE of Arizona, Appellee, v. Joe MESQUITA, Appellant. 425.
• Court: Arizona Court of Appeals

Page 141

496 P.2d 141

17 Ariz.App. 151

STATE of Arizona, Appellee, v. Joe MESQUITA, Appellant.

No. 1 CA-CA 425.

Court of Appeals of Arizona, Division 1, Department A.

April 26, 1972.

Rehearing Denied June 9, 1972.

Review Denied July 13, 1972.

Moise Berger, Maricopa County Atty., by James S. Tegart, Deputy County Atty., for appellee

John Joseph Relihan, Phoenix, for appellant.

STEVENS, Presiding Judge.

After a jury trial, Joe Mesquita, the appellant herein and hereafter referred to as the defendant, was adjudged to be the father of a boy born on 3 October 1970. The mother testified the child was a full-term child, and that he was 21 long and weighed 8 lbs. 5 ozs. at birth. The terms of the judgment fulfilled the requirements of A.R.S. § 12--845 as that section existed prior to the 1971 amendments. The defendant appealed. His opening brief presents the following questions for our consideration:

'I. Did the Trial Court err in refusing to allow the Defendant to ask the complainant upon Cross-Examination whether she had had sexual intercourse with W. O. during the Summer of 1969? (In this opinion we use the initials only of this man.)

'II. Did the Trial Court err in allowing the complainant's baby to be shown to the jury in the place of expert testimony and for requiring the Defendant to stand so that the jury could compare the so-called resemblance between the baby and Defendant?'

The mother of the child swore to a complaint before a Justice of the Peace pursuant to A.R.S. § 12--841, also prior to the 1971 amendment. The complaint was sworn to on 10 June 1970 and alleged that the defendant was the father of her unborn child. The defendant appeared before the Justice of the Peace and in a sworn affidavit acknowledged that he was the father.

The paternity matter was sent to the Superior Court in which the defendant entered a plea of not guilty and the trial was eventually conducted to a jury on 12 April 1971. The voir dire of the jury is included in the reporter's transcript of the trial. All 12 jurors were married persons, seven women and five men. Each of the women was a mother and collectively they had 15 children. Three of the men were fathers and collectively they had 10 children.

The parties were introduced by W. O. with whom the mother had been very friendly, the introduction being about 9 October 1969.

The defendant was and remained a married man with a family. The mother at all times had been and remained single. She was over the age of consent. The defendant spoke to her of his domestic problems and advised her that he was contemplating a divorce. The exact date that the mother and the defendant had their first date is not clear. For a time they dated every other night, then twice a week, then once a week and they finally ceased dating about April 1970. The number of times that they engaged in sexual intercourse is not established, but the testimony of both parties shows numerous acts of intercourse during December 1969 and January and February 1970. Both parties testified that no measures were used to prevent conception. The mother's last menstrual period was about the end of the first week in January. She secured medical verification of the fact of pregnancy in February and advised the defendant. They discussed names for the With one or two possible exceptions each of the acts of intercourse had taken place in the defendant's car. The mother denied that she had been with W. o. since she started dating the defendant and she specifically denied that she had been in an automobile with him in December 1969. The defendant testified that one evening as he was preparing to call for the mother he had seen W. O. and the mother parked near the mother's home in W. O.'s car. There was no testimony as to any indication of intercourse between W. O. and the mother.

child, whether the child be a boy or a girl. He contributed $25 toward the expenses and promised more money if he could afford it. During the trial he was questioned with reference to the affidavit which he had signed in the Justice Court and he explained that he was not sure that he was the father and that he felt that he could be released without bond if he admitted paternity thereby saving his job.

SUMMER OF 1969

On cross-examination the mother was asked whether she had had sexual relations with W. O. The objection was made that the fact of such a relationship would be immaterial unless it could be shown to have taken place in December 1969 or in January or in February 1970. The objection was sustained. In the absence of the jury the defendant made an offer of proof. The offer of proof was that the defendant could show the fact of intercourse with W. O. in the summer of 1969. He urged that since the mother and the...