State v. Porrello

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JAMES ALEXANDER PORRELLO, Appellant.

No. 1 CA-CR 23-0242
FILED 4-2-2024

Appeal from the Superior Court in Mohave County
No. S8015CR202200296
The Honorable Billy K. Sipe, Commissioner Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Hamp Law Offices LLC, Kingman
By Virginia L. Crews
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Anni Hill Foster and Judge Brian Y. Furuya joined.

H O W E, Judge:

¶1 James Porrello appeals his convictions and sentences for two
counts of aggravated assault. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In March 2022 two employees of a vehicle repossession
business visited Porrello’s property to repossess his truck after Porrello
failed to make several vehicle loan payments. Porrello, hearing his dogs
bark, grabbed a shotgun and accosted the men trying to take his truck.
Porrello and the men talked for a time, during which Porrello put the
shotgun away. He then called his bank and attempted to verify that it had
ordered the repossession but was unsuccessful in so confirming. Porrello
then asked the men if they had any paperwork showing that the
repossession was lawful. The employees had no printed paperwork but
offered to show Porrello their credentials on a laptop kept in the tow truck.

¶3 When Porrello returned inside his house, one of the men
called the Mohave County Sherriff’s Office to report their interaction with
the armed and allegedly agitated Porrello. The men waited a few minutes
before deciding to leave with Porrello’s truck. Upon hearing the tow truck
start, Porrello grabbed a black AR-15 rifle and ran outside. He opened fire
on the fleeing tow truck, firing “a few” shots. The men heard some “ping”
or ricochet noises but were not themselves hit. They fled to a nearby gas
station, where they met with a sheriff’s deputy and related their story.

¶4 Law enforcement agents obtained a search warrant, traveled
to Porrello’s house, and began an investigation. While Porrello was
peacefully detained, detectives searched in and around his property. Inside
the home, they found weapons and ammunition, including a black AR-15,
a 12-gauge shotgun, and .223 caliber rifle rounds. Seven .223 casings,
consistent with the rifle caliber, were found outside the front door of
Porrello’s home. An inspection of the tow truck revealed at least one hole
that the officers believed was consistent with being struck by a bullet.

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Meanwhile, an officer interviewed Porrello. Porrello admitted to greeting
the men while holding a shotgun in a “low ready position” and to firing six
or seven rounds at the fleeing tow truck.

¶5 A few days later, a grand jury indicted Porrello on two counts
of disorderly conduct involving a weapon, class 6 felonies, and two counts
of aggravated assault, dangerous class 3 felonies. Shortly afterward, the
State released its first disclosure statement, listing 21 officers as potential
witnesses. Before trial, Porrello moved to exclude certain testimony on two
grounds: first, that the State impermissibly sought to elicit expert testimony
that marks on the tow truck were consistent with being hit by .223 caliber
bullets, and second, that the State had failed to comply with its disclosure
requirements under Ariz. R. Crim. P. (“Rule”) 15. The court denied the
motion on the first ground because the police witnesses were not opining
that the markings were definitively caused by bullets, merely that their
training allowed them to infer that the markings were consistent with bullet
marks. The court granted Porrello’s motion as to the second ground for all
but one witness, Detective Patterson—an officer who was among the 21
listed in the initial disclosure.

¶6 At trial, the police witnesses ultimately did not testify about
the bullet marks. However, one of the victims described the damage to the
tow truck as a bullet hole. The police witness Porrello objected to under
Rule 15 testified that the rifle was an AR-15 and that the casings found
outside the front door of Porrello’s home matched the gun’s caliber. After
deliberation, the jury found Porrello guilty on all charges. At sentencing,
the court dismissed Porrello’s disorderly conduct charges without
objection. The court found several mitigating factors: the victims’ requests
for leniency, strong family and community support, Porrello’s mental
health issues, his military service, and his lack of a criminal history. It also
found the emotional harm to the victims as an aggravating factor. Finding
that the mitigating factors outweighed the aggravating factors, the court
imposed consecutive minimum sentences of five years’ imprisonment on
each count of aggravated assault. The court reasoned that consecutive
sentences were appropriate because the two victims each suffered separate
harms. Porrello appeals from his convictions and sentences, and we have
jurisdiction under Ariz. Const. art. II, § 24 and A.R.S. § 13–4033(A).

DISCUSSION

¶7 Porrello raises three issues on appeal, arguing that the trial
court incorrectly (1) denied his motion to preclude opposing expert
testimony, (2) denied in part his motion to preclude witness testimony

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under Rule 15, and (3) considered an aggravating factor in its decision to
impose consecutive sentences. We address each issue in turn.

I. Preclusion of Expert Testimony

¶8 Porrello asserts that the trial court erred in allowing the victim
to testify as an expert witness that the holes in the tow truck were caused
by bullets because the State did not disclose him as an expert witness under
Rule 15.1(b)(4). This court reviews a trial court’s decision to admit or
exclude expert testimonial evidence for an abuse of discretion. State v.
Boyston, 231 Ariz. 539, 544 ¶ 14 (2013) (citation omitted).

¶9 Lay witness testimony is limited to an opinion that is “(a)
rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within
the scope of [Ariz. R. Evid.] 702.” Ariz. R. Evid. 701; see also State v. Fuentes, 247 Ariz. 516, 524 ¶ 28 (App. 2019) (citation omitted). Because the victim’s
testimony that the tow truck was damaged by a bullet was rationally based
on his perception of the events and helpful in determining whether Porrello
had fired upon the truck, we need only determine whether the victim’s
testimony was “based on scientific, technical, or other specialized
knowledge.” Ariz. R. Evid. 701.

¶10 Here, the court did not abuse its discretion in finding that the
victim’s testimony was that of a lay witness and not an expert. The victim
described the events as he perceived them without providing scientific or
technical opinion. Porrello was free to cross-examine the witness on the
damage, and the jury was free to consider whether the damage was, in fact,
caused by a bullet. The victim did not claim any special knowledge
regarding ballistic physics that proved the damage was caused by a bullet;
he merely provided his recollection and understanding of what he
perceived. See State v. Thompson, 252 Ariz. 279, 297 ¶ 66 (2022) (noting that
technician’s testimony that a hatchet seemed to have human tissue on it was
not definitive in establishing that the substance was, in fact, human tissue).
Porrello’s argument thus fails.

II. Rule 15 Disclosure

¶11 Porrello next contends that the State’s late notification that it
would call Detective Patterson as a witness violated Rule 15.1. This court
reviews a trial court’s decision whether to preclude or limit witness
testimony for an abuse of discretion. State v. Moody, 208 Ariz. 424, 457 ¶ 135
(2004) (citation omitted).

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¶12 The State “must make available to the defendant . . . the name
and address of each person the State intends to call as a witness in the State’s
case-in-chief and any relevant written or recorded statement of the
witness.” Ariz. R. Crim. P. 15.1(b)(1). Porrello analogizes the disclosure
violation to that which occurred in Jiminez v. Chaves, in which this court held
that the State’s failure to disclose inculpatory DNA evidence until the eve
of trial violated the defendant’s right to a complete defense. 234 Ariz. 448,
453 ¶ 22 (App. 2014). However, unlike in Jiminez, the State’s late disclosure
here did not prejudice Porrello. The detective here had been listed in the
State’s initial disclosure, and he did not testify to any new evidence. See
State v. Armstrong, 208 Ariz. 345, 354 ¶ 43, supplemented, 208 Ariz. 360 ¶ 43
(2004) (finding a delayed disclosure caused no prejudice due to, in part, the
witness’s inclusion as a codefendant on the defendant’s indictment).
Porrello was able to proceed to trial as planned with no surprises. The trial
court’s preclusion of the other new evidence was a sufficient sanction
against the State, and the court acted within its discretion in allowing the
detective to testify.

III. Sentencing

¶13 Porrello contends that the trial court impermissibly
considered an aggravating factor in imposing consecutive sentences.
Because he did not object at sentencing, this court reviews only for
fundamental error. State v. Garcia, 541 P.3d 559, 565 ¶ 26 (Ariz. App. 2023).

¶14 Porrello argues that imposing consecutive sentences
constituted imposing an aggravated sentence, and that an aggravated
sentence can be imposed only when a jury finds aggravating factors, relying
on A.R.S. § 13-701(D). Porrello’s sentences were not aggravated, however,
but mitigated. Whether a sentence should be consecutive or concurrent has
nothing to do with aggravation or mitigation but is governed by A.R.S.
§ 13–711(A), which provides that “[I]f multiple sentences of imprisonment
are imposed on a person at the same time, the sentences imposed by the
court may run consecutively or concurrently, as determined by the court.”

¶15 Here, the trial court imposed consecutive sentences because
Porrello committed separate crimes against each victim, and each victim
was separately harmed by his conduct. Consecutive sentences are proper
where the convictions are for separate and distinct crimes, State v. Girdler, 138 Ariz. 482, 489 (1983), and against multiple victims, State v. Henley, 141
Ariz. 465, 467 (1984). Porrello’s consecutive sentences were lawful.

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CONCLUSION

¶16 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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