Rowe v. Com.

• Decision Date: 17 April 2009
• Docket Number: Record No. 081173.
• Citation: 675 S.E.2d 161,277 Va. 495
• Parties: Jeffrey Wayne ROWE v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

675 S.E.2d 161

277 Va. 495

Jeffrey Wayne ROWE v. COMMONWEALTH of Virginia.

Record No. 081173.

Supreme Court of Virginia.

April 17, 2009.

Jon M. Babineau (Saunders Barlow Riddick Babineau, on brief), for appellant.

Robert H. Anderson III, Senior Asst. Atty. Gen. (Robert F. McDonnell, Atty. Gen., on brief), for appellee.

Present: All the Justices.

OPINION BY Justice DONALD W. LEMONS.

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 battery¹ 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 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 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, 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."

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 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, 2008 WL 2092889 at *2 (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 engage in the public duties of a police officer in the City of Chesapeake," even though he was a Virginia Beach police officer. Id., at *2. 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., at *3.

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 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...