Rowe v. Com.

Present: All the Justices

JEFFREY WAYNE ROWE

v. Record No. 081173 OPINION BY JUSTICE DONALD W. LEMONS
April 17, 2009
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in affirming the conviction of Jeffrey Wayne Rowe

(“Rowe”) for the crime of assault and battery 1 of a law

enforcement officer.

I. Facts and Proceedings Below

Officer Brian J. Fair (“Officer Fair”) of the Virginia

Beach Police Department was driving on Interstate 64 from work

to his home in Chesapeake at approximately 1:30 a.m. on July

9, 2005. Although he was driving his personal vehicle,

Officer Fair was in uniform. His uniform was dark blue, “with

a patch on both shoulders, [and] the badge clearly displayed

above his left breast pocket.” During his commute home,

Officer Fair noticed a truck being driven in a very erratic

1
From the bench, the trial court found Rowe guilty of
“assaulting a police officer in the exercise of his duties.”
In its sentencing order, the trial court found Rowe guilty of
“A&B of Police Officer.” Code § 18.2-57(C) makes it a Class 6
felony to commit “an assault or an assault and battery against
another knowing or having reason to know that such other
person is a . . . law-enforcement officer.” The distinction
between the trial court’s language from the bench and in the
sentencing order is not germane to any contested issue on
appeal, but does account for periodic use of both terms by the
trial court and counsel.
manner, “cutting across” multiple lanes and at one point

spinning out of control. Officer Fair contacted the Virginia

Beach Police dispatcher and stated that he believed he was

encountering a drunk driver and requested that the Virginia

State Police be notified. The driver was later identified as

Rowe.

Officer Fair was informed that no State police officers

were available to assist, so he continued to follow Rowe at a

distance. Officer Fair followed Rowe, who continued to drive

erratically, for some time, losing and regaining contact with

Rowe at least twice. At one point, Rowe left the highway and

stopped his truck, and Officer Fair, seeing that Rowe’s

driver’s-side window was open, exited his vehicle and shouted

that he was a police officer. Rowe drove away again and

Officer Fair resumed pursuit; he later observed Rowe losing

control of his truck and driving on the wrong side of the

roadway.

Eventually, Officer Fair saw Rowe drive his truck into a

“ravine” between the northbound and southbound lanes of the

interstate. Officer Fair informed the dispatcher that he

believed Rowe had “wrecked bad and the vehicle had possibly

flipped.” Officer Fair did not follow Rowe into the ravine,

but instead drove to the guardrail overlooking the ravine,

approximately 25 feet above Rowe’s position. Although the

2
interstate was illuminated, lighting in the ravine area was

“very faint.” Officer Fair observed Rowe’s truck, stopped but

with its headlights still on, facing the embankment where

Officer Fair was positioned. He heard the gears of Rowe’s

truck grinding, and surmised that Rowe was trying to put the

vehicle back into gear.

Hoping to prevent Rowe from driving away, Officer Fair

exited his vehicle, drew his service weapon, identified

himself as a police officer, and ordered Rowe to shut off the

engine. Rowe’s driver’s-side window was open. Officer Fair

saw Rowe bend down as if to look under the sun visor up the

hill, and Rowe turned the engine off. With his firearm at the

“low ready position,” Officer Fair commanded Rowe to put his

hands in plain view. Rowe complied, extending his hands out

his window, and Officer Fair continued to walk carefully down

the embankment toward Rowe’s truck. When he reached the

bottom of the embankment, he was approximately 10 yards in

front of Rowe’s truck, and was standing directly in his

headlights for several seconds. Officer Fair then ordered

Rowe to get out of the truck and lie “facedown” on the grass.

Almost immediately, Rowe pulled his hands into his truck,

put the truck in drive, and accelerated rapidly, spinning the

wheels on the wet grass in the ravine. Officer Fair was

moving toward his right, away from the entrance to the ravine,

3
which was also the only exit. As Rowe moved forward, Officer

Fair was shouting at him to stop, and threatening to shoot if

he did not do so. Rowe turned his truck toward Officer Fair,

away from the exit to the ravine, as he accelerated, and

Officer Fair responded by firing several shots at the front of

the truck. Officer Fair believed he had hit the engine

because steam began to escape from the front, and the truck

stopped between 5 and 10 feet from Officer Fair.

However, the truck was not disabled, and Rowe began

spinning his tires in reverse. Officer Fair tried to return

to his vehicle, which was his “safety point,” but fell on the

wet grass. When he looked up, Rowe was again driving directly

at him, and he was fully illuminated by Rowe’s headlights.

Officer Fair fired several more shots at the truck, but

stopped when he saw Rowe turn away from him. At that point,

Rowe drove out of the ravine and left the area. Officer Fair

called the dispatcher and returned to his vehicle, where he

was joined by Chesapeake and State police. Chesapeake police

officers apprehended Rowe several hours later. When they did,

Rowe was disheveled and smelled of alcohol, but made several

spontaneous statements that he had “heard someone come up to

me and say he was a police officer” and asked whether the

arresting officer “was the police officer that shot at him.”

4
 Rowe was indicted for attempted capital murder of a law

enforcement officer, and was found guilty of that offense in a

bench trial. Subsequently, he filed a motion to reconsider,

which the trial court granted. After accepting memoranda of

law from both parties and viewing the scene of the encounter

between Officer Fair and Rowe at the ravine, the trial court

held a hearing on the motion to reconsider, at which a Law

Enforcement Mutual Aid Agreement (“the Agreement”) signed in

2003 by Chesapeake, Virginia Beach, and other municipalities

was received as evidence. The Agreement purported to give

officers of each signatory jurisdiction “authority to enforce

the laws of the Commonwealth of Virginia and to perform the

other duties of a law enforcement officer” when present in any

other signatory jurisdiction “in such instances wherein an

apparent, immediate threat to public safety precludes the

option of deferring action to the local law enforcement

agency.” At the conclusion of the hearing, the trial court

vacated its finding of guilt on the charge of attempted

capital murder of a law enforcement officer, and instead

convicted Rowe of the Class 6 felony of assault and battery of

a police officer pursuant to Code § 18.2-57(C).

The Court of Appeals granted an appeal on only one of the

two arguments Rowe asserted. The Court held that Rowe had

waived his argument that the assault and battery charge was

5
not a lesser included offense of the attempted capital murder

charge, and therefore denied his petition as to that question.

Rowe v. Commonwealth, Record No. 3196-06-1 (Aug. 14, 2007).

According to the Court of Appeals, Rowe violated Rule 5A:18,

which limits questions on appeal to those raised in the trial

court and incorporates the requirements of other rules,

including Rule 5A:20, to delineate what arguments are

preserved. Id., slip op. at 2-3. The Court of Appeals twice

required Rowe to amend his Petition for Appeal so that it

complied with the requirements of Rule 5A:20(c). This rule

requires that petitions for appeal include “[a] statement of

the questions presented with a clear and exact reference to

the page(s) of the transcript, written statement, record, or

appendix where each question was preserved in the trial

court.” Rule 5A:20(c). The Court of Appeals held that

because the pages referenced by Rowe did not show he preserved

the lesser-included-offense argument, Rowe “never raised this

issue at trial,” and therefore it denied Rowe’s appeal of that

question. Rowe v. Commonwealth, Record No. 3196-06-1, slip

op. at 3 (May 20, 2008).

As to the sufficiency of the evidence to support Rowe’s

assault and battery conviction, the Court of Appeals affirmed

the judgment of the trial court by unpublished opinion,

concluding that the Agreement “gave Officer Fair authority to

6
engage in the public duties of a police officer in the City of

Chesapeake,” even though he was a Virginia Beach police

officer. Id., slip op. at 3. Accordingly, the Court of

Appeals held that under the circumstances of the encounter

with Rowe, Officer Fair was “engaged in the performance of his

public duties” within the meaning of Code § 18.2-57(C). Id.,

slip op. at 4.

We awarded Rowe an appeal on the following assignments of

error:

1. The Court of Appeals erred when it found Petitioner
had waived the issue of whether assault of a law
enforcement officer under Va. Code § 18.2-57 is a
lesser-included offense to the charge of attempted
capital murder of a police officer under Va. Code
§ 18.2-31.

2. The Court of Appeals erred when it affirmed the
trial court’s finding that the evidence was
sufficient to convict Petitioner of assault of a
police officer in violation of Va. Code § 18.2-
57(C).

II. Analysis

A. Assault and Battery as a Lesser Included Offense

Rowe first contends that assault and battery of a law

enforcement officer under Code § 18.2-57(C) is not a lesser

included offense of attempted capital murder of a law

enforcement officer under Code § 18.2-31(6), and that because

he was never indicted for the assault and battery charge, his

conviction must be reversed. The Court of Appeals did not

reach the merits of this argument, holding instead that Rowe

7
had waived it by failing to comply with the rules governing

appeals to the Court of Appeals. It is not necessary to

specifically address the question of Rowe’s compliance with

Rules 5A:20(c) and 5A:18 because Rowe invited the very error

of which he now complains. His approbation and reprobation is

necessarily fatal to his lesser-included-offense argument.

We have previously made clear that “[a] party may not

approbate and reprobate by taking successive positions in the

course of litigation that are either inconsistent with each

other or mutually contradictory. Nor may a party invite error

and then attempt to take advantage of the situation created by

his own wrong.” Cangiano v. LSH Bldg. Co., 271 Va. 171, 181,

623 S.E.2d 889, 895 (2006). Cangiano had conceded at trial

that language in a purchase agreement was contractual in

nature, but then argued on appeal that the trial court erred

when it held that he was contractually bound by it. 271 Va.

at 180-81, 623 S.E.2d at 895. And in Powell v. Commonwealth,

267 Va. 107, 590 S.E.2d 537 (2004), we held that a defendant

could not complain on appeal of the trial court’s decision not

to disqualify jurors due to bias, when the potential bias

complained of arose from questions asked by the defendant’s

attorney during voir dire. Id. at 144, 590 S.E.2d at 560.

Here, the error asserted by Rowe is even more obviously

the result of his own strategy and actions at trial. At

8
trial, Rowe advanced the assault charge – the charge of which

he was never indicted but eventually convicted – as a more

lenient alternative to the attempted murder charge he was then

facing and maintained that it was a lesser included offense.

On numerous occasions during trial, counsel for Rowe

sought to rebut the attempted-capital-murder charge, asserting

that Rowe lacked the requisite specific intent for that crime.

Counsel for Rowe described for the trial court the possible

consequences if it agreed with these arguments, asserting that

“the Court clearly has options” for imposing reduced penalties

based on lesser included offenses. In support of his

argument, Rowe cited and repeatedly referenced a Court of

Appeals opinion, Wynn v. Commonwealth, 5 Va. App. 283, 362

S.E.2d 193 (1987), which he claimed supported his position

that assault and battery of a law enforcement officer is a

lesser included offense of attempted capital murder of a law

enforcement officer.

The clearest example of this occurred on the final day of

the original trial, when counsel for Rowe, in response to a

specific request from the trial court, stated his belief that

“felony assault and battery of a law enforcement officer . . .

would be the lesser-included offense” for attempted capital

murder. The record of the proceedings demonstrates that Rowe

acquiesced without objection when the trial court accepted his

9
theory. Rowe cannot now complain of the trial court’s

adoption of the legal theory he introduced and repeatedly

urged the trial court to adopt. Because we hold that Rowe may

not approbate and reprobate by inviting error and then seeking

reversal of his conviction based upon it, it is not necessary

to address Rowe’s claim that the Court of Appeals erred in its

application of Rules 5A:18 and 5A:20(c).

Nonetheless, Rowe argues that the Court of Appeals erred

in failing to apply the “ends of justice” exception of Rule

5A:18 to reach the argument. We have held that “[a]pplication

of the ends of justice exception is appropriate when the

judgment of the trial court was error and application of the

exception is necessary to avoid a grave injustice or the

denial of essential rights.” Charles v. Commonwealth, 270 Va.

14, 17, 613 S.E.2d 432, 433 (2005). Because Rowe invited the

error of which he complained before the Court of Appeals, the

Court of Appeals’ refusal to consider this argument under the

“ends of justice” exception did not sanction a “a grave

injustice or the denial of essential rights,” and was

therefore correct.

B. Sufficiency of the Evidence

Rowe next argues that even if we reject his lesser-

included-offense argument, the evidence presented at trial was

insufficient to support his conviction for assault and battery

10
of a law enforcement officer. This argument is reviewed under

established principles of appellate review.

When analyzing a challenge to the sufficiency
of the evidence, this Court reviews the
evidence in the light most favorable to the
prevailing party at trial and considers any
reasonable inferences from the facts proved.
The judgment of the trial court will only be
reversed upon a showing that it “is plainly
wrong or without evidence to support it.”

Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330

(2006) (quoting Code § 8.01-680) (citation omitted).

Rowe was convicted under Code § 18.2-57(C), a subsection

of Virginia’s statute criminalizing assault and battery.

Under this subsection,

if any person commits an assault . . . against
another knowing or having reason to know that
such other person is . . . a law-enforcement
officer . . . engaged in the performance of his
public duties, such person is guilty of a Class
6 felony . . . .”

Rowe’s essential arguments on appeal are as follows: Rowe

asserts that the Commonwealth failed to prove at trial that

Officer Fair was “engaged in the performance of his public

duties” such that § 18.2-57(C) applies. Consequently, Rowe

contends, Officer Fair only had authority to make a citizen’s

arrest.

At trial and on appeal, Rowe has maintained that the

Agreement has no relevance to this issue. At trial, following

the grant of his motion to reconsider, Rowe challenged the

11
admissibility of the Agreement on grounds of relevance. Rowe

claimed that Code § 19.2-250(A) confines the arrest authority

of police “to the officer’s own city or within one mile of

that city’s corporate limits,” and that “nothing in the

Virginia Code authorizes individual municipalities to grant

law enforcement officers greater powers than ordinary citizens

when those officers are outside their territorial boundaries.”

Based on these assertions, Rowe objected to the admissibility

of the Agreement as “immaterial and irrelevant.” Rowe makes

the same arguments here, asserting that because the encounter

between Officer Fair and Rowe took place entirely outside of

the City of Virginia Beach or the statutory extension of one

mile, the Commonwealth failed to prove that Officer Fair was

engaged in the performance of his duties, as required to

support Rowe’s conviction.

We hold that the evidence is sufficient to support Rowe’s

conviction for assault of a law-enforcement officer. Although

Code § 19.2-250 does limit the geographic boundaries of

localities to one mile beyond their respective corporate

limits, as Rowe contends, the Agreement, signed by both

Virginia Beach (which employed Officer Fair) and Chesapeake

(where the encounter took place), gives officers from one

jurisdiction “authority to enforce the laws of the

Commonwealth of Virginia and to perform the other duties of a

12
law enforcement officer” when present in any other signatory

jurisdiction “in such instances wherein an apparent, immediate

threat to public safety precludes the option of deferring

action to the local law enforcement agency.”

Rowe asserted at trial and on appeal that nothing in the

Virginia Code authorized the provisions of the Agreement.

However, Code § 15.2-1726 provides in relevant part that

[a]ny locality may, in its discretion, enter
into a reciprocal agreement with any other
locality . . . for such periods and under such
conditions as the contracting parties deem
advisable, for cooperation in the furnishing of
police services. . . . Subject to the
conditions of the agreement, all police
officers, officers, agents and other employees
of such consolidated or cooperating police
departments shall have the same powers, rights,
benefits, privileges and immunities in every
jurisdiction subscribing to such agreement,
including the authority to make arrests in
every such jurisdiction subscribing to the
agreement.

Rowe does not challenge the validity of this statute, which

authorizes the Agreement. Whether this statutory provision

violates the Dillon Rule 2 and consequently is invalid was not

raised by Rowe at trial or on appeal. Accordingly, we express

no opinion as to this issue.

2
“Dillon’s Rule provides that municipal corporations
have only those powers that are expressly granted, those
necessarily or fairly implied from expressly granted powers,
and those that are essential and indispensable.” Board of
Zoning Appeals v. Board of Supervisors, 276 Va. 550, 553-54,
666 S.E.2d 315, 317 (2008).

13
 When he encountered Rowe, who was driving recklessly and

dangerously on a public highway, Officer Fair was faced with

“an apparent, immediate threat to public safety.” He reported

the situation in an effort to have Chesapeake officers or

State police officers handle the matter, but was informed that

they were unavailable to do so. This is precisely the sort of

situation envisioned by the Agreement. The Agreement was

introduced as evidence before the trial court. The statute

that authorized it was not challenged. The evidence presented

was sufficient to hold that Officer Fair was “engaged in the

performance of his public duties” at all relevant times during

his encounter with Rowe.

III. Conclusion

For the reasons stated, we hold that the Court of Appeals

did not err in affirming Rowe’s conviction for assault and

battery of a law enforcement officer. Accordingly, we will

affirm the judgment of the Court of Appeals.

Affirmed.

JUSTICE KOONTZ, with whom CHIEF JUSTICE HASSELL and JUSTICE
KEENAN join, dissenting.

I respectfully dissent. In my view, the majority’s

application of the “invited error” doctrine in this case

sweeps too broadly and thereby implicitly permits defense

counsel to confer upon the trial court authority to convict

14
Jeffrey Wayne Rowe of an offense which is not, as a matter of

law, a lesser-included offense of the statutory crime for

which he was indicted.

Rowe was indicted for attempted capital murder of a law

enforcement officer in violation of Code § 18.2-31(6).

Following a lengthy bench trial, Rowe was found not guilty of

that charge. While the indictment was not amended, Rowe was

found guilty of felony assault and battery of a law

enforcement officer in violation of Code § 18.2-57(C). The

Commonwealth has previously conceded in another case that, as

a matter of law, a violation of Code § 18.2-57(C) is not a

lesser-included offense under Code § 18.2-31(6) because the

two statutes contain different definitions of the term “law

enforcement officer.” See Edwards v. Commonwealth, 41 Va.

App. 752, 759, 589 S.E.2d 444, 447 (2003) (en banc).

Moreover, during oral argument in the present case, the

Commonwealth properly adhered to its prior concession. See

also Coleman v. Commonwealth, 261 Va. 196, 201, 539 S.E.2d

732, 735 (2001) (“[s]ince assault and battery requires proof

of a battery, it is not a lesser-included offense of attempted

murder”).

Basic principles frame my disagreement with the

majority’s application of invited error under the

circumstances of this case. An indictment is a written

15
accusation of a crime issued by a legally impaneled grand

jury. Code § 19.2-216. And “no person shall be put upon

trial for any felony, unless an indictment . . . shall have

first been [issued] by a grand jury . . . or unless such

person” waives the indictment and then may be tried on a

warrant or information. Code § 19.2-217. In this context, we

have recognized that the Due Process Clauses of both the

Fourteenth Amendment of the Constitution of the United States

and Article 1, Section 8 of the Constitution of Virginia

require that an accused be given proper notification of the

criminal charges against him. Thus, we have stated that “an

accused cannot be convicted of a crime that has not been

charged, unless the crime is a lesser-included offense of the

crime charged [in the indictment].” Commonwealth v. Dalton,

259 Va. 249, 253, 524 S.E.2d 860, 862 (2000).

Of course, there is a permissible procedure by which the

indictment can be amended to conform to the evidence under

Code § 19.2-231, and it is well-established that the accused

can waive an objection to the amendment of the indictment.

Ortiz v. Commonwealth, 276 Va. 705, 722, 667 S.E.2d 751, 761

(2008). Similarly, a criminal defendant charged with a felony

offense may plead guilty to a different, reduced charge as

part of a plea agreement. See Palmer v. Commonwealth, 269 Va.

203, 207, 609 S.E.2d 308, 310 (2005).

16
 In the present case, the Commonwealth did not seek to

amend the indictment which charged Rowe with attempted capital

murder of a law enforcement officer, nor does the record show

that the assertions of Rowe’s defense counsel constituted an

offer to have Rowe plead guilty to a different, reduced

charge. In contrast, the record is replete with numerous

discussions between the trial court and defense counsel

concerning whether a finding of not guilty of the attempted

murder charge necessarily would require a dismissal of the

case or whether the evidence would support a finding of guilt

for a lesser-included offense. Clearly, the trial court was

fully aware of the limitations of its authority in that regard

as we explained in Dalton.

Under those circumstances, any seasoned defense attorney

can be expected to employ a trial strategy designed to obtain,

in the absence of a dismissal, a conviction of a lesser-

included offense and a corresponding lesser punishment than

might have been imposed for the offense charged in the

indictment. Here, Rowe’s counsel unquestionably employed such

a trial strategy in asserting that assault and battery of a

law enforcement officer is a lesser-included offense of the

crime of attempted capital murder of a law enforcement

officer. While this assertion was erroneous as a matter of

law, the record is clear that defense counsel relied upon Wynn

17
v. Commonwealth, 5 Va. App. 283, 362 S.E.2d 193 (1987), to

support that assertion. Defense counsel may have made the

assertion in good faith, but he was simply wrong.

Nevertheless, the trial court was also in error in adopting

the erroneous assertion because the trial court had no

authority to convict Rowe of a crime that was not a lesser-

included offense of the crime charged in the indictment and

upon which Rowe was on trial.

Certainly, the “invited error” doctrine can and should,

in an appropriate case, be employed to bar a criminal

defendant from “approbating and reprobating” by seeking to

challenge on appeal an action of the trial court brought about

through his counsel’s own purposeful conduct. See, e.g.,

Powell v. Commonwealth, 267 Va. 107, 143-44, 590 S.E.2d 537,

559-60 (2004) (no error in trial court’s failure to strike for

cause jurors made aware of defendant’s prior conviction

through strategic decision of defense counsel to raise the

issue during voir dire); Moore v. Hinkle, 259 Va. 479, 491,

527 S.E.2d 419, 426 (2000) (defendant could not claim

prejudice arising from his decision not to wear available

street clothes and instead to appear before the jury in jail

clothing). The essence of invited error is the concept of

waiver. Conferring authority upon the trial court that is not

authorized by statute and, indeed is prohibited, applies the

18
concept of waiver too broadly. The majority’s decision today

will devolve upon a trial court the ability to determine not

merely the guilt of an accused but also the crime for which he

may be convicted though never charged, simply because a

defense counsel has made an erroneous statement of law.

For these reasons, I am of opinion that the Court of

Appeals erred in failing to apply the “ends of justice”

exception of Rule 5A:18 and grant Rowe’s petition in order to

reach the merits of the issue as Rowe argues in support of his

first assignment of error in this appeal. The judgment of the

trial court was plainly wrong because it had no authority to

convict Rowe of a crime that is not, as a matter of law, a

lesser-included offense of the crime for which he was charged

in the indictment and the indictment was never amended.

Accordingly, I would invoke the ends of justice exception of

our Rule 5:25 and reverse the judgment of the Court of Appeals

under the first assignment of error in this appeal and reverse

Rowe’s conviction for a violation of Code § 18.2-57(C) as

having been rendered by the trial court without authority to

do so.

19