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 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 

 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 lesserincluded-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 Rule2 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 lesserincluded 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 lesserincluded 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