When he heard a neighbor at the Adagio apartment complex in Draper yell a racial slur at his son, Mike Waldvogel said, he was shocked.
He dashed outside in his bare feet to get the 7-year-old, who had been riding his scooter in a courtyard.
The shouting, which by then was coming from inside an apartment, picked up as he walked by and Mark Olic Porter walked onto his patio, Waldvogel said. He started to tell Porter that he didn’t care what he said when he was inside but he was not to talk to his son that way.
He didn’t finish the sentence, according to Waldvogel.
“At that point, he shouted back at me, ‘You and your n - - - - - son can get out of here,’” Waldvogel testified Tuesday at Porter’s trial in U.S. District Court on a charge of interference with housing rights.
Then, almost immediately, he heard the arcing of a device and was hit on the left side of his neck by a Zap Cane, which is a stun device. He felt pain registering 8 or 9 on a 1-to-10 scale, he said.
“I started to go down,” Waldvogel said. “It pretty much incapacitated me.”
He had a ringing in his head and his legs gave out, causing him to fall almost into a kneeing position within 10 seconds. He wasn’t able to move out of Porter’s range so he grabbed the stun cane and pulled as hard as he could, Waldvogel said.
The force of pulling the device caused him to fall back and the stun cane broke when it hit the ground, he said.
“[Porter] said he was going to call the police because I had stolen his property,” Waldvogel said.
Waldvogel and his son walked to their apartment, where he called 911. The boy was still frightened when they got home, he said.
“He was hysterical. He was screaming,” Waldvogel said. “He wasn’t letting go of my arm and he didn’t want to go near the doors or the windows.”
Porter, who drove away but returned later, was arrested and is being tried on a charge of 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.
Waldvogel, 41, describes his race as a mix of Latin American and African-American, and said his son, now 8, is African-American.
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.
In her opening statement, Department of Justice trial attorney Rose Gibson told jurors it is not against the law to hate black people or use slurs, even to children. However, she said, interfering with housing rights is illegal.
Defense attorneys say the Nov. 3, 2016, incident was not sparked by racism but by tension among tenants in a high density complex. They say Porter’s wife told authorities the boy had previously “doorbell-ditched” their apartment at the Adagio, 13343 Minuteman Drive, and intentionally annoyed them in the past.
Katelin Adair, a former Adagio resident, testified Tuesday that Porter told her on the day of the alleged assault that all black people needed to be exterminated and began speaking louder when Waldvogel’s son rode his scooter nearby.
Adair, who lived next door to Porter, said she was trying to decide if she should call police when she saw Waldvogel walking in the courtyard. She told him to be careful because it seemed like Porter had been drinking and he had been saying “crazy things.”
Porter first was charged in Utah’s 3rd District Court with aggravated assault, a third-degree felony, and three misdemeanors. The state charges were later dropped in favor of the federal prosecution, and he was indicted by a grand jury on Sept. 13.
By then Porter had moved to Arizona and was arrested in Lake Havasu by local police officers and FBI agents.
On Tuesday, prosecutors played body camera footage of the arrest and audio recordings of phone calls between Porter and his wife while he was in jail. In them, Porter rants about black people and complains in one conversation about Waldvogel’s son riding his scooter in the courtyard.
Waldvogel, who now lives in another part of the Salt Lake Valley, said in court Tuesday that his son did not want to ride his scooter after the incident with Porter and was constantly looking over his shoulder. Even now, the boy does double takes when he sees someone who looks like Porter, the father said.
“He still talks about it,” Waldvogel said.
The trial continues on Wednesday.