State v. Porter

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

PATRICK DWAYNE PORTER, Appellant.

No. 1 CA-CR 15-0461
FILED 8-18-2016

Appeal from the Superior Court in Maricopa County
No. CR2014-103039-001 SE
The Honorable Erin O. Otis, Judge Pro Tempore

AFFIRMED AS CORRECTED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Mays Law Office, P.L.L.C., Phoenix
By Wendy L. Mays
Counsel for Appellant
 STATE v. PORTER
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.

W I N T H R O P, Judge:

¶1 Patrick Dwayne Porter timely appeals his convictions and
sentences for six counts of armed robbery, class two dangerous felonies; six
counts of kidnapping, class two dangerous felonies; six counts of
aggravated assault, class three dangerous felonies; one count of kidnapping
a child, a class two dangerous felony and dangerous crime against children;
and one count of aggravated assault on a child, a class three dangerous
felony and dangerous crime against children. See Ariz. Rev. Stat. (“A.R.S.”)
§§ 13-1904(A)(1) (2010) (armed robbery), -1304(A)(3) (2010) (kidnapping), -
1204(A)(2) (Supp. 2015) (aggravated assault).1 After searching the record
on appeal and finding no arguable question of law that was not frivolous,
Porter’s counsel filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this
court to search the record for fundamental error. This court granted
counsel’s motion to allow Porter to file a supplemental brief in propria
persona, but he did not do so. After reviewing the entire record, we find no
fundamental error. Therefore, we affirm Porter’s convictions and sentences
as corrected to reflect one additional day of presentence incarceration
credit.

FACTS AND PROCEDURAL BACKGROUND2

¶2 Porter’s charges arose from three robberies of cellular
telephone companies. The robberies occurred on November 8, 2013,
November 22, 2013, and January 11, 2014. Victim V.L. testified that on
November 8, 2013, two males entered the cellular telephone retail store

1 Although the Arizona Legislature amended certain of the statutes
cited in this decision after the dates of these offenses, the revisions are
immaterial to the resolution of this appeal. Thus, we cite to the current
version of these statutes.

2 We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against Porter. State v. Guerra,
161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).

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Decision of the Court
where he was working. One of the males, later identified as Porter, pointed
a gun at V.L., pushed him against a wall, and demanded the money from
the register. After taking the money, Porter demanded that V.L. show him
where the phones were kept. V.L. took Porter to the back of the store, where
Porter pushed him to the ground and zip-tied his hands and feet with the
gun continuously pointed at him. V.L. identified Porter in court as the
robber with the gun, the store’s video surveillance footage showed the
robbery occurring as V.L. described it, and Porter’s DNA was found on the
zip ties used on V.L. V.L. also testified that the robbers took approximately
$280 and between ten and twenty phones.

¶3 M.G. testified that she and another employee, S.M., were
working at a cellular telephone store on November 22, 2013, when two
males entered the store wearing backpacks; one was wearing a black hoodie
and the other was wearing a red-and-black jacket. The person in the red-
and-black jacket—later identified as Porter—pulled out a gun, and the
robbers demanded to know where the phones were kept. The robbers and
employees went to the back of the store, and M.G. unlocked the cage
containing the phones. The robbers filled their backpacks with phones and
then locked M.G. and S.M. in the cage with a bike lock. Throughout the
encounter, M.G. felt “[p]anic” and “fear.” M.G. also testified that at the time
of the robbery, Porter had a Band-Aid on his face, and that she was
extremely close to Porter when he was retrieving phones from the cage.
M.G. identified Porter in court as the robber with the gun in the red-and-
black jacket.

¶4 S.M.’s testimony about the robbery was consistent with
M.G.’s testimony. S.M. added that the person in the red-and-black jacket
came behind her and held a gun to the back of her head and neck, and he
pulled on the back of her shirt. S.M. also testified that Porter had a Band-
Aid on his cheek in the location of his face tattoo, and that when she got
close to him, she could see a tattoo hidden under the Band-Aid. S.M. stated
she “was terrified” during the robbery. S.M. also identified Porter in court
as the robber in the red-and-black jacket who pointed the gun at her. The
store’s video surveillance corroborated the stories of S.M. and M.G. A store
manager testified that the robbers stole $35,540 worth of phones that day.

¶5 Matthew Elliot was arrested in connection with the robberies,
and, following his arrest, he gave a “free talk” to police, during which he
identified Porter as one of the robbers from all three robberies. During trial,
Elliot testified he was involved in the November 22 robbery with Porter,
and that he received texts that morning telling him to get ready for a
robbery and to wear dark clothes and a low hat. Porter and another suspect
then picked up Elliot and drove to the store location. Porter and Elliot went

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into the store, and Porter eventually drew a gun and approached one of the
employees. Elliot approached the other employee, and both employees
were forced to the back of the store. Porter and Elliot left the store after
filling their backpacks with phones, and Elliot received slightly more than
$3,500 for his help in the robbery. Elliot also testified that the video
surveillance accurately reflected what happened in the store. Elliot further
testified that Porter was involved in all three robberies, and he identified
Porter in the video surveillance from the other two robberies. In addition,
Elliot testified that he saw zip ties and a Taser at Porter’s apartment. Elliot
also testified that when he was at Porter’s apartment one day, he was given
a phone that was stolen in the January 11, 2014 robbery. He also testified
that he saw other brand new phones at Porter’s residence. Detective
McWilliams. confirmed that Elliot had one of the phones stolen in the
January 11, 2014 robbery.

¶6 Detective McWilliams also testified that, during the execution
of a search warrant at Porter’s apartment, police recovered a red-and-black
jacket that appeared identical to the jacket worn by Porter on the day of the
November 22, 2013 robbery. After analysis, Porter’s DNA was found on
the red-and-black jacket.

¶7 Victim M.S. testified that, on January 11, 2014, she was at a
cellular telephone store with her nine-year-old niece when two identically
dressed males, both on their phones, entered the store. There were two
employees on duty at the time, A.A. and J.B. One of the males approached
J.B with a Taser, while the other male, later identified as Porter, pulled out
a gun and pointed it at M.S.’s head. One of the robbers ordered everyone
to the back room. In the back room, J.B. was ordered to open the safe, and
all of the victims were ordered to lie down with their heads on the ground.
After the robbers filled their backpacks with phones from the safe, one of
them yanked M.S.’s purse from her hands, and then put M.S., her niece,
A.A., and J.B. in the safe room, placed a table in front of the door, and exited
through the back of the store. M.S. testified that she “was petrified” during
the encounter, and her niece was crying throughout it. M.S. confirmed that
the store’s video surveillance accurately portrayed the robbery. Further,
M.S. testified that when she attended Porter’s initial appearance in this case,
she immediately recognized Porter’s voice as the voice of one of the robbers,
and hearing “it brought everything [about the robbery] back.” In addition,
M.S. testified that having the gun pointed at her “was very traumatic,” and
that she feared she might be harmed by the weapons.

¶8 Victim J.B. testified that, during his shift at the cellular
telephone store on January 11, 2014, someone came into the store acting
unusual. According to J.B., approximately twenty minutes after that person

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left the store, the robbers arrived. J.B.’s explanation of the robbery was
consistent with M.S.’s explanation. J.B. added that one of the robbers struck
him when he tried to look at his face, and also that the robbers took
everyone’s personal phones, including his. After the robbery, J.B. identified
Porter in a photo lineup as the robber with the gun, and as the person acting
unusual when he came in the store a few minutes before the robbery. The
store manager testified that the robbers stole approximately $20,000 worth
of phones that day.

¶9 A.A. testified that, on January 11, 2014, she was working with
J.B. when they were robbed by two males wearing nearly identical outfits—
khaki pants, black sweaters, and backpacks. A.A. also testified that she was
“terrified” during the robbery, and that one of the robbers shook her and
pointed a gun at her. Five days after the robbery, A.A. identified Porter in
a photo lineup as the robber with the gun. A.A. also identified Porter in
court as the robber with the gun.

¶10 In addition to recovering the red-and-black jacket during
execution of the search warrant, police officers also recovered other items
that appeared identical to the clothing worn by the robbers on January 11,
including khaki pants and a black hoody. The police also recovered a Taser
and zip ties identical to the ones used in the November 8, 2013 robbery.
Detective McWilliams testified that, in viewing the surveillance videos
from the November 22, 2013 robbery, he immediately noticed that the
person identified as Porter appeared to be wearing a Band-Aid on the area
of his face where he has a tattoo. Detective McWilliams further testified
that several still images taken from the surveillance videos from all three
robberies bore a strong resemblance to Porter.

¶11 The jury unanimously found Porter guilty on all twenty
counts and found all twenty counts were dangerous. In addition, the jury
found two aggravating factors applied to all twenty counts: the presence
of an accomplice, and the commission of the offenses for pecuniary gain.
After considering a probation violation report, a mitigation report, and
comments from Porter’s counsel and the State, the trial court sentenced
Porter to thirty-eight years in prison and ordered that he pay $35,540 in
restitution. The court also calculated 524 days as Porter’s presentence
incarceration credit. Porter was arrested, however, on January 17, 2014, and
he remained in custody until sentencing on June 26, 2015. We therefore
correct the court’s sentencing minute entry to reflect 525 days of
presentence incarceration credit. See State v. Carnegie, 174 Ariz. 452, 454, 850
P.2d 690, 692 (1993) (holding that presentence incarceration credit includes
the day of booking).

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Decision of the Court
ANALYSIS

¶12 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Porter received a fair
trial. He was represented by counsel at all stages of the proceedings and
was present at all critical stages.3 The evidence presented at trial was
substantial and supports the verdicts. The jury was properly comprised of
twelve members, and the court properly instructed the jury on the elements
of the charges, Porter’s presumption of innocence, the State’s burden of
proof, and the necessity of a unanimous verdict. The trial court received
and considered a probation violation report, Porter was given an

3 On March 2, 2015, Porter moved to dismiss counsel because of a
claimed irreparable breakdown in communication and lack of client-
attorney trust. Porter did not request to represent himself or request a new
attorney, however. Although the record does not reflect whether the trial
court addressed the motion, before his written motion, Porter requested
dismissal of counsel at two conference hearings. Porter first requested
dismissal of counsel at an October 10, 2014 hearing, and the court advised
him that if he filed an appropriate written motion, it would address the
issue then. The court also advised Porter that, in order to represent himself,
he would need to agree that the laws of the State of Arizona would govern
the proceedings, and that he would follow the rules of evidence and the
court’s direction. Porter insisted that Arizona is a corporation, that he is not
subject to the court’s jurisdiction, and that he would not enter a contract
requiring him to follow the rules of the corporation. Porter again requested
dismissal of counsel at a hearing on November 24, 2014, and he requested
that his “legal counsel advisors” represent him. After the court questioned
his advisors, they all confirmed they were not licensed to practice law in the
State of Arizona, and the court advised them that they could not represent
Porter.

Assuming the trial court denied Porter’s motion by not addressing
it, the denial was proper. Porter made a broad request to dismiss counsel
without any specific factual basis. See State v. Torres, 208 Ariz. 340, 343, ¶ 7,
93 P.3d 1056, 1059 (2004) (stating that when an indigent defendant requests
to represent himself or requests new counsel, he must make sufficiently
specific, factually based allegations in support of his request). The trial
court had already heard Porter’s complaints about the court not having
jurisdiction over him, and his references to Arizona as a corporation. Thus,
by not raising any new grounds for dismissal of counsel in his written
motion, the court properly denied the motion and did not need to inquire
further.

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opportunity to speak at sentencing and did so, and his sentences were
within the range of acceptable sentences for his offenses.

CONCLUSION

¶13 We decline to order briefing and affirm Porter’s convictions
and sentences as corrected. After filing of this decision, defense counsel’s
obligations pertaining to Porter’s representation in this appeal have ended.
Defense counsel need do no more than inform Porter of the outcome of this
appeal and his future options, unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984).

¶14 Porter has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. On the
court’s own motion, we also grant Porter thirty days from the date of this
decision to file an in propria persona motion for reconsideration.

Amy M. Wood • Clerk of the court
FILED: AA

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