Trial Notes: Evidence Admissibility and Expert Testimony of Officer Fullington

Legal Arguments Regarding Evidence Admissibility (Rule 403 Balancing Test)

Four-Part Analytical Test for Rule 403: * The court must consider the quantum of probative value of the evidence. * The court must evaluate the weight or strength of the evidence. (In this case, the court noted the evidence of driving while suspended is "pretty strong" due to the suspension packet). * The court must determine how prejudicial the evidence is. * The court must determine to what extent the evidence may distract the jury from the central question of whether the defendant committed the charged crime.
Ruling on Driving History: * Admitted Evidence: The court allowed pages 1, 2, and 3 of the defendant's suspension packet to be marked as an exhibit. * Excluded Evidence: The court denied the introduction of an extensive history of the defendant's driving past. * Rationale: An extensive criminal history to argue "heightened awareness" was deemed unfairly prejudicial and likely to distract the jury from the central question regarding the failure to perform duties of a driver. The court feared the jury would view the history as propensity evidence (i.e., "this guy's been driving poorly… therefore, he was doing what he can [sic] now"). * Specific Redaction Process: The "reason" portion on page 1 must be redacted. The judge advised that simply using a Sharpie is insufficient as it can often be read through; the document must be Sharpie-redacted and then photocopied to ensure the information is truly hidden. The court noted the copy will be black and white (missing the original blue coloring).

Admissibility of Prior DUI Diversion Records

State's Argument for Admission: * Purpose: Not for propensity, but to show knowledge and notice. The defendant's participation in a 2015 diversion program put him on notice that drinking and driving is illegal and carries a heightened risk to others. * Subjective Awareness: By completing the diversion—including a victim impact panel—the defendant gained a subjective awareness of the risks of alcohol consumption and driving.
Defense's Argument for Exclusion: * Temporal Remoteness: The prior diversion occurred in 2015, approximately $10$ years before the 2025 incident. * Argument on Effectiveness: Defense argued that a single $90$ -minute victim impact panel from a decade ago is too remote to constitute "fresh" awareness and instead functions as improper propensity evidence.
Court's Final Ruling on Diversion Evidence: * The evidence is admissible under Rule 404(4). * Relevance to Mental State: Counts 1 (Assault in the Second Degree) and 2 (Assault in the Third Degree) require proof of reckless behavior under circumstances manifesting extreme indifference to the value of human life. Counts 6 (Reckless Driving) and 7 (Recklessly Endangering Another Person) also require proof of recklessness. * Limiting Instruction: The court will allow the evidence but is open to providing a jury instruction clarifying that the evidence is to be considered only for the issue of recklessness, not for propensity. * Documents Admitted: A total of $7$ pages were admitted, including the Uniform DUII Diversion Petition and Agreement (noted as showing the defendant entered the program and detailing his obligations) and the order from Judge Matarazzo (dated 08/17/2016) terminating the diversion as successful.

Legal Case Law Precedents

State v. Sullivan (342 Or App 210): Stands for the fact that prior diversion is admissible in a DUII/Reckless Driving case to prove the reckless mental state.
State v. Johnstone (172 Or App 559): Cited in Sullivan. Involved a first-degree manslaughter charge where a prior DUI arrest and diversion were admissible to show subjective awareness of the risk the defendant exposed others to.
State v. Wyatt (217 Or App 199, 2007): Held that prior DUI convictions and probation participation were relevant to prove reckless mental state manifesting extreme indifference to human life.
State v. Cohen (231 Or App 280, 2009): Affirmed by the Supreme Court. Established that prior DUI conviction evidence is relevant to whether a defendant had knowledge of the risks of drinking and driving on the date of the new incident.

Testimony of Officer Fullington: Expert in Collision Reconstruction

Officer Identification: Officer Fullington (F-U-L-L-I-N-G-T-O-N), Portland Police Bureau (PPB).
Role: Collision Reconstructionist and Lead Investigator for the PPB Major Crash Team (MCT).
Professional Experience: * Full-time officer for $12$ years; reserve officer for $1.5$ years prior. * Education: Dallas County Community College (Dallas, TX) and University of Oregon (Eugene, OR). * Joined the Traffic Division in 2020. * Member of the Washington Association of Technical Accident Investigators (WATAI).
Training and Certification: * $4$ -month Basic Academy in Salem. * $18$ -month probationary period. * $1$ -month traffic rotation. * Core Reconstruction Courses (completed in Connecticut): At-Scene Traffic Homicide Investigation, Advanced Traffic Crash Investigation, and Collision Reconstruction ( $2$ weeks each). * Additional training: Pedestrian/bicycle investigation, motorcycle investigation, human factors, and EDR (airbag control module) data downloading ( $500+$ hours of reconstruction-specific training).
Investigation Statistics: * Lead investigator on $89$ crashes. * Involved in $150$ total fatal crashes. * Attended over $1,000$ total crashes throughout his career.

The Major Crash Team (MCT) Protocol

Activation Threshold: A crash team is activated if someone has died or if a hospital update indicates someone is "more likely than not" to die from injuries.
Team Structure: Four teams (Green, Blue, Red, Orange). Fullington is the lead for the Blue Team. Personnel work on-call for $2$ weeks, then off for $6$ .
Standard Team Composition ( $7$ people total): * $1$ Supervisor (Sergeant Petrov in this case). * $1$ Lead Investigator. * $5$ Additional members with roles including: Drug Recognition Experts (DRE), search warrant writers (for blood/vehicles), $3\text{D}$ scanner operators (using Faro scanners), and drone pilots.

The Crime Scene Investigation (January 18, 2025)

Timeline: Pager activation at $04:12\text{ AM}$ ; arrival at the scene at $04:45\text{ AM}$ .
Location: Northeast Grand and Hassalo (425 Northeast location), specifically the Lloyd District near a Denny's and Kaiser Permanente corporate offices.
Environmental Conditions: * Temperature: $31^{\text{circ}}\text{F}$ . * Lighting: Described as "well lit" with significant ambient lighting from surrounding businesses (Denny's, hotels, corporate offices) in addition to street lights. * Road Surface: Dry asphalt; one-way northbound traffic with $3$ lanes and a bus lane.
Subject Identification: * Injured Pedestrian (Scooter Rider): Mitchell Carlson. * Driver: Isaac Ellis.

Forensic Evidence at the Scene

Physical Evidence Identified: * A red Chevy Cobalt parked on the south side of Northeast Multnomah Street facing eastbound. * A Lime scooter wedged underneath the vehicle. * A scrape mark on the roadway extending over $100\text{ feet}$ , curving toward NE Multnomah St (caused by the dragging scooter). * A pile of clothing (pants and a lighter-colored top) belonging to Mitchell Carlson. * Gouge marks and scrape marks in the left lane (Lane #1) in front of the Denny's. * Placard A: Identified a scrape mark. * Placard B: Identified a red piece of vehicle plastic.
Methodology for Freshness: To determine if marks are fresh, the investigator wipes the surface. If the mark is fresh asphalt powder that comes off like "chalk" on the finger, it is considered new. Older marks are weathered, darker, and filled with road debris.
Documentation Tools: White paint for marking, drones for overhead imaging (Exhibit 8a), and $3\text{D}$ scanners for modeling (imaging and drone fly-through footage marked as Exhibit 8c).

Questions & Discussion

Question (State): Regarding Count 5, driving under the influence of intoxicants, does the State believe they must prove a mental state (knowingly, intentionally, recklessly)?
Response (Defense): Defense asserted that ordinary law requires a mental state and promised to provide a formal position on which specific mental state applies after the lunch recess.
Question (Defense Objection): Ms. Colson requested that the officer close his notes until they become necessary for refreshing recollection.
Ruling: The judge sustained, asking the officer to close the notes. Later, the state established a foundation for refreshing recollection after the officer could not recall the exact number of investigations ( $21$ ) or specific placard details without the report.