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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 23-0267 

Appeal from the Superior Court in Mohave County

No. S8015CR202200814

The Honorable Douglas Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Alice Jones

Counsel for Appellee

Janelle A. McEachern, Attorney at Law, Chandler

By Janelle A. McEachern

Counsel for Appellant

James W. Mortimer, III, Kingman

Appellant

FILED 06-11-2024
STATE v. MORTIMER

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 James W. Mortimer, III, appeals his conviction and sentence 

for attempted sexual assault. Mortimer’s counsel filed a brief in accordance 

with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 

(1969), certifying that, after a diligent search of the record, she found no 

arguable questions of law. Counsel asks us to search the record for 

reversible error. Mortimer filed a supplemental brief, which this Court has 

considered. After reviewing the record, we affirm Mortimer’s conviction 

and sentence. 

BACKGROUND1

¶2 In November 2020, in Mohave County, Mortimer, his 

girlfriend, Kaitlin Coleman, and her best friend, Katherine,

2 went out 

drinking all night and into the early morning hours of the next day. The 

group returned to Mortimer and Coleman’s house, got something to eat,

and began playing games. Coleman began nodding off, so she retired to her 

bedroom. Mortimer and Katherine stayed and cleaned up. At some point, 

Mortimer approached Katherine and asked her to have sex. She told him 

“no,” explaining that she valued her friendship with Coleman. Mortimer 

continued to say, “let’s have sex,” and Katherine repeated that she “did not 

want to have sex with him.”

¶3 Katherine went to the guest bedroom to sleep, closing the 

door behind her. Shortly after, Mortimer entered the bedroom, got into bed,

and began pulling down Katherine’s pants. She struggled with Mortimer,

preventing him from removing her pants and told him to “stop.” Mortimer 

then climbed on top of Katherine, pinning her arms to the bed with his 

knees. He placed one hand on her chest and, with his other hand, began 

1 We view the facts in the light most favorable to sustaining the 

conviction and resolve all reasonable inferences against Mortimer. See State 

v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

2 We use a pseudonym to protect the victim’s privacy.
STATE v. MORTIMER

Decision of the Court

3

masturbating. Katherine continued to say “no” and “stop,” eventually 

turning her head to the side because she “just wanted it to be over.”

Mortimer ejaculated on her chest, face, and hair and then left the bedroom.

¶4 Katherine went to the bathroom and took pictures of herself 

in the mirror. In the pictures, she had a wet substance on her shirt as well 

as red marks on her neck and chest. Katherine unsuccessfully tried to wake

Coleman and ask for help, and then she left the house. Later that day, 

Mortimer text messaged Katherine apologizing for “whatever happened 

last night.” Mortimer indicated that Coleman told him that he “scared” and 

“hurt” Katherine, but he had no memory of the evening. Katherine feared 

retaliation and did not immediately contact the police.

¶5 Two days after the assault, Katherine contacted law 

enforcement and provided them with the stained shirt, pictures, and 

Mortimer’s text messages. Mortimer agreed to speak with officers, claiming

that he never had sex with Katherine and could not remember details from 

that evening. Forensic scientists located sperm cells from a single 

contributor on Katherine’s shirt, and the DNA profile from the “spermtargeted fraction” matched Mortimer’s DNA profile. The State charged 

Mortimer with one count each of attempted sexual assault, a class 3 felony, 

and aggravated assault with sexual motivation, a class 6 felony. See A.R.S. 

§§ 13-1001(A) (attempt), -1204(A)(4) (aggravated assault), -1406(A) (sexual 

assault).

¶6 Before trial, the superior court granted several unopposed 

motions correcting dates in the indictment, precluding any mention of 

Mortimer’s unrelated misdemeanor conviction, and precluding admission

of Coleman’s statements to officers and her text messages with Katherine. 

The court denied Mortimer’s motion to preclude his text messages with 

Katherine, finding that they could be admitted as statements made by an

opposing party. See Ariz. R. Evid. 801(d)(2)(A) (excluding party-opponent 

statements from the rule against hearsay).

¶7 At trial, the State presented testimony from Katherine, the 

investigating officers, and a forensic scientist. The State did not call

Coleman to testify and did not admit her out-of-court statements. To the 

extent Mortimer’s text messages with Katherine referred to Coleman’s 

statements, the superior court gave a limiting instruction to the jury, 

clarifying that the reference was “admitted only for the limited purpose of 

giving context to statements by the defendant.” At the close of the State’s 

case, the court denied Mortimer’s motion for judgment of acquittal under 

Arizona Rule of Criminal Procedure (Rule) 20(a)(1). Outside the presence 
STATE v. MORTIMER

Decision of the Court

4

of the jury, the court advised Mortimer of the right to testify and he chose 

not to exercise that right. The jury later found Mortimer guilty of attempted 

sexual assault and not guilty of aggravated assault. The State alleged, but 

the jury did not find, that the victim suffered harm as an aggravating factor. 

¶8 The superior court conducted the sentencing hearing in 

compliance with Mortimer’s constitutional rights and Rule 26. The court 

imposed the mitigated sentence of two years’ imprisonment with 29 days 

of presentence incarceration credit, and imposed standard fees and 

assessments. See A.R.S. § 13-702(D) (first-time felony offender sentencing 

range). The court ordered Mortimer to register as a sex offender and pay 

the attendant fee of $250. See A.R.S. § 13-3821(A)(5) (requiring sex offender

registration for attempted sexual assault). Upon the victim’s request, the 

court also issued a lifetime no-contact injunction against Mortimer. See

A.R.S. § 13-719(A)(3) (allowing lifetime injunctions for sexual offenses).

¶9 After conducting a restitution hearing, the superior court 

ordered Mortimer pay $1,125 to the victim compensation fund for “trauma 

counseling” provided to Katherine after the assault. Mortimer timely 

appealed.

DISCUSSION

¶10 We review the entire record for reversible error. State v. 

Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). Mortimer’s counsel has advised 

this Court that, after a diligent search of the record, she found no arguable 

questions of law.

¶11 In Mortimer’s supplemental brief, he argues that he received 

ineffective assistance of trial counsel. Claims of ineffective assistance of 

counsel may not be raised on direct appeal. State ex rel Thomas v. Rayes, 214 

Ariz. 411, 415, ¶ 20 (2007). Instead, they must be presented to the superior

court in a post-conviction relief proceeding under Rule 32.1. See generally 

Ariz. R. Crim. P. 32.1 (grounds for post-conviction relief after trial). We 

need not address such claims here.

¶12 We have considered counsel’s brief and fully reviewed the 

record for reversible error, see Leon, 104 Ariz. at 300, and find none. All of 

the proceedings were conducted in compliance with the Arizona Rules of 

Criminal Procedure. So far as the record reveals, counsel represented 

Mortimer at all critical stages of the proceedings. The superior court 

properly instructed the eight-person jury on the elements of the charged 

offenses, the State’s burden of proof, the presumption of innocence, and 

other applicable laws. The record contains substantial evidence supporting 
STATE v. MORTIMER

Decision of the Court

5

the jury’s verdict and the court’s restitution order. The court imposed a 

sentence within the statutory limits and awarded the correct amount of 

presentence incarceration credit. We decline to order briefing and affirm 

Mortimer’s conviction and sentence.

¶13 Upon the filing of this decision, Mortimer’s counsel shall 

inform him of the status of the appeal and of his future options. Counsel 

has no further obligations unless, upon review, she finds an issue 

appropriate for submission to the Arizona Supreme Court by petition for 

review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Mortimer shall 

have 30 days from the date of this decision to proceed, if he desires, with a 

pro per motion for reconsideration or a petition for review. 

CONCLUSION

¶14 For the foregoing reasons, we affirm Mortimer’s conviction 

and sentence.