Hate crime trial of man accused of assaulting black neighbor with stun device begins in Utah

(Courtesy of Salt Lake County Sheriff's Office) Mark Olic Porter

Mike Waldvogel moved his family to a Draper apartment complex in 2016 because the schools in the area are good and he thought his family would be safe in the community, a federal prosecutor said Monday.

But about six months later, neighbor Mark Olic Porter began yelling, “Get out of here, n-----” to Waldvogel’s 7-year-old son as the African-American boy rode a scooter in a courtyard at the Adagio apartments, Department of Justice trial attorney Rose Gibson said.

And, she said, Porter struck Waldvogel in the neck with a stun device when the father tried to ask him not to talk to his son that way.

“His desire was that no black people would live there” at Adagio, Gibson said, adding that Porter was willing to use violence to that end.

Gibson described the prosecutors’ version of events in opening statements at Porter’s trial in U.S. District Court in Salt Lake City. He is charged with interfering with housing rights based on the victim’s race. If convicted of the hate crime, the 59-year-old faces a maximum punishment of 10 years in prison and a $250,000 fine.

In his opening statement, defense attorney Spencer Rice said the case is not about whether Porter is an offensive person but whether his actions were enough under the law to show he specifically intended to interfere with Waldvogel’s housing rights.

Rice said they were not, describing the incident as a “sudden reactionary moment” that occurs in high density housing. He told jurors that “you don’t have to like him, you don’t have to agree with him” to find Porter not guilty.

To get a conviction, prosecutors have to prove Porter used force or a threat of force; willfully injured, intimidated or interfered with Waldvogel; acted because Waldvogel was occupying a dwelling and because of his race or color; and that his conduct resulted in bodily injury to Waldvogel.

Rice, an assistant federal public defender, has said in a court brief that the incident at the Adagio — a 44-acre complex at 13343 Minuteman Drive with nearly 500 units — was not sparked by racism but rather by playful children causing problems for other tenants. Porter’s wife told authorities the boy had previously “doorbell-ditched” their apartment and intentionlly annoyed them in the past, according to the brief.

Another neighbor told police that Porter once became very angry at her white 7-year-old son because of an incident with a football landing near his patio, the brief says. The mother, who is white, said she confronted Porter about the way he spoke to her child and he responded using several racial and ethnic slurs.

On Monday, Adagio leasing agent Andrew Williams testified that when Porter first toured the complex, he asked how many black families lived there. Williams said he responded that even if he wanted to, he couldn’t tell Porter because of fair housing laws.

Also testifying were three Adagio maintainance workers, two of whom said that when the unit above Porter’s became vacant, he asked them not to move any “n------“ into the apartment. Two of the workers also said Porter read to them a piece he had written that was based on Martin Luther King’s “I Have a Dream” speech.

The dream in Porter’s version was that all “n------“ are dead, according to the workers’ testimony.

The trial continues Tuesday, when Waldvogel is expected to testify.

According to a prosecution brief, a resident at the Adagio complex says Porter began to rant to her on Nov. 3, 2016, saying he wanted to “exterminate” all blacks, and became louder as Waldvogel’s son came closer to them on his scooter. As the neighbor fled to her apartment, she heard Porter yell at the boy, the brief says.

Porter continued to yell as Waldvogel walked over to his porch, then allegedly hit the father in the neck with a Zap Cane, which is an electrified stun cane. Waldvogel felt pain and burning and a Draper police officer observed a red mark on his neck, prosecutors says.

The Zap Cane is designed for self-defense and advertised as having 1 million volts but the defense says most of those volts power the sound and light produced by the cane and the actual stun capability is measured at only 0.6 milliamps. The standard police taser generally has an average current of 2.1 milliamps, according to Rice.

The police officer reported that Porter came out of his home visibly upset, claiming that Waldvogel had stolen his cane. Porter allegedly smelled of alcohol and struggled with two officers while they were arresting him. He was released on bond and eventually charged in Utah’s 3rd District Court with third-degree felony aggravated assault and misdemeanor counts of assault against a police officer, interference with arresting officers and intoxication.

The state charges were later dropped in favor of the federal prosecution, and Porter was indicted by a grand jury on Sept. 13. He was arrested the next day in Lake Havasu, Ariz., and has been in custody in Utah pending trial.

Under court order, Porter was to have a stun belt on his leg at trial, but Judge Dee Benson dropped that requirement Monday. Court documents do not give details about what led to the order, but Rice said in a brief that concerns expressed by the government were based, in part, on Porter’s conduct several years ago.

Prosecutors say in a brief that they intend to present evidence at trial about Porter’s criminal history, including assaults in Nevada and Idaho of store clerks.

In a 2006 incident, an African-American woman turned Porter away from a Las Vegas store because it was closed. When the woman left the business, Porter was waiting outside and threw rocks at her as he shouted a slur, prosecutors say. He was later convicted of battery, assault and throwing a deadly missile.

The second incident took place in 2015 in an Idaho Falls store, where Porter questioned a white woman who worked there about her nose ring. She said the ring was related to African culture and Porter responded that “everything bad comes from Africa” and referred to the woman with a slur, the prosecution brief alleges.

Porter was told he could no longer come to the store but returned, the brief says. He allegedly punched the woman several times in the face and head and said, “Don’t ever talk to a white man like that.”

The prosecution brief says Porter was charged in Idaho state court with assault, and there is an outstanding warrant for his arrest in the case.