Criminal – Defendant convicted of assault and battery of a law enforcement officer

Where the defendant brandished a knife while standing within 10 feet of a law enforcement officer, told her to stay away, and disregarded her repeated commands to drop it, he was convicted of assault and battery of a law enforcement officer. A reasonable factfinder could conclude that he committed an overt act with the intention of placing the officer in fear or apprehension of bodily harm, and that such fear was reasonable.

Background

Ben Roland McMurtray appeals his conviction, following a bench trial, for assault and battery of a law enforcement officer.

Sufficiency

McMurtray argues that the Commonwealth failed to prove that he assaulted Edwards. It is a crime to commit “an assault and battery against another knowing or having reason to know that such other person is . . . a law-enforcement officer” who is “engaged in the performance of his public duties anywhere in the Commonwealth.” Virginia “has merged the common law crime and tort of assault so that today, a common law assault [punishable as a criminal offense] occurs when either set of elements is proved.”

This court concludes that a factfinder could find that the evidence proved McMurtray’s assault on a law enforcement officer. Sergeants Berry and Croxton were on duty and in uniform. Although she was in an unmarked patrol car, Sheriff Edwards had her emergency lights activated and displayed her badge of authority. Accordingly, a reasonable factfinder could conclude that McMurtray knew that Berry, Croxton and Edwards were law enforcement officers.

When Edwards approached McMurtray, he brandished a knife, pointed it at her, and told her to stay away. While standing within 10 feet of Edwards, McMurtray ignored her repeated instructions to drop the knife. Additionally, Edwards believed that McMurtray intended to harm her with the knife, and he had the capacity to do so. Berry raced to provide backup because she was concerned for Edwards’s safety. These facts support a reasonable inference that McMurtray committed an overt act intended to place Edwards in fear of bodily harm.

McMurtray contends that “the Commonwealth’s evidence failed to exclude the reasonable hypothesis of innocence that McMurtray did not intend to inflict bodily [harm] on Sheriff Edwards.” He argues that this is so because he never got close enough to Edwards to hurt her.

Common law tortious assault does not require proof of proximity, as McMurtray contends. The Commonwealth may prove an assault “by establishing that the defendant engaged in an overt act intended to inflict bodily harm with the present ability to inflict such harm.” The Commonwealth, however, can also prove an assault “by establishing that the defendant engaged ‘in an overt act intended to place the victim in fear or apprehension of bodily harm,’ which did in fact create ‘such reasonable fear or apprehension in the victim.’”

The issue, then, is not whether a reasonable factfinder could conclude that McMurtray actually intended to use the knife against Edwards. Instead, this court reviews the record to determine whether the factfinder’s conclusion that McMurtray intended to place Edwards in fear that he would use the knife to cause bodily harm was plainly wrong.

Here, the Commonwealth presented evidence that McMurtray brandished a knife while standing within 10 feet of Edwards, told her to stay away, and disregarded her repeated commands to drop it. A reasonable factfinder could conclude that McMurtray committed an overt act with the intention of placing Edwards in fear or apprehension of bodily harm, and that such fear was reasonable. On this record, the circuit court’s rejection of McMurtray’s hypothesis was not plainly wrong.

Affirmed.

McMurtray v. Commonwealth, Record No. 2077-24-1, July 14, 2026. CAV (unpublished opinion) (Chaney). From the Circuit Court of Matthews County (Shaw). Charles E. Haden for appellant. C. David Sands III, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, Angelique Rogers, Assistant Attorney General, on brief), for appellee. VLW 026-7-300. 8 pp.

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