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People v. Stewart9/9/2002
JUDGMENT AFFIRMED IN PART, REVERSED IN PART EN BANC
We are reviewing the court of appeals' decision in People v. Stewart, 26 P.3d 17 (Colo. Ct. App. 2000), reversing the defendant's assault conviction arising out of an incident in which the vehicle he was driving struck and seriously injured a pedestrian. The court of appeals held that Wayne Robert Stewart's conviction of reckless second degree assault with a deadly weapon, section 18-3-203(1)(d), 6 C.R.S. (2001), violates equal protection of the laws, U.S. Const. Amend. XIV; Colo. Const. Art II, Sec. 25, because it imposes a more severe penalty for the same behavior proscribed by the vehicular assault statute, section 18-3- 205(1)(a), 6 C.R.S. (2001). In addition to review of this constitutional issue, we granted certiorari to consider whether (1) the court of appeals erred in finding that the trial court committed plain error by failing to give an intervening cause instruction as to second degree assault when the instruction was not requested by the defense; (2) whether the court of appeals erred when it held that an investigating officer, who was not qualified as an expert, should not have been allowed to express his opinion about how the accident occurred; and (3) whether a limited remand is required in order for the trial court to properly consider a defendant's motion for appeal bond.
We reinstate the conviction. Because we conclude that there are reasonable distinctions between the statutes governing reckless second degree assault and vehicular assault, we find no equal protection violation. Therefore, we reverse the court of appeals' decision on this issue. Additionally, we hold that the trial court did not commit plain error in failing to instruct the jury that intervening cause constituted an affirmative defense as to second degree assault. Consequently, we reverse the court of appeals' judgment on this issue. We agree with the court of appeals that the trial court abused its discretion in permitting an investigating officer to testify about his reconstruction of the crime scene without qualifying him as an expert. Because we conclude that the error was harmless, however, no reversal of Stewart's conviction is warranted. Finally, we conclude that a limited remand is not required on the bond issue. Accordingly, we affirm the court of appeals' judgment with respect to this issue.
I. FACTS AND PROCEEDINGS BELOW
The crimes occurred on a Sunday evening in March 1997 when Wayne Stewart left the bar of a restaurant located in a suburban shopping center. As Stewart began to drive his sports utility vehicle out of the shopping center parking lot, he encountered three pedestrians - Richard Ehrmann, Christine Castro, and Jeffrey Pippenger, in that order - walking abreast in the middle of the driving lane. The pedestrians had just left a video rental store and, as they walked to their vehicle, they were looking up at the Hale Bopp comet streaking across the sky. The testimony of disinterested bystanders established that Stewart veered toward the pedestrians at an angle; Ehrmann, who was closest to the traffic lane, was brushed by Stewart's vehicle. A verbal altercation ensued, after which Stewart began driving back and forth at an angle and in an aggressive manner.
The parties dispute how Ehrmann came to land on the hood of Stewart's vehicle. Stewart maintained that as he drove forward and passed Ehrmann, the victim, who was facing him, Ehrmann suddenly vaulted onto the front quarter panel, landing on the vehicle's hood. Just as suddenly, according to Stewart, Ehrmann rolled or jumped off. Stewart argued that a dent was caused by Ehrmann's buttocks as he vaulted onto the hood, landing in a seated position
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