COURT OF APPEALS OF VIRGINIA
Record No. 2077-24-1
BEN ROLAND MCMURTRAY v. COMMONWEALTH OF VIRGINIA
Present: Judges Ortiz, Chaney and Frucci Argued at Virginia Beach, Virginia Opinion Issued July 14, 2026*
FROM THE CIRCUIT COURT OF MATHEWS COUNTY Jeffrey W. Shaw, Judge
Charles E. Haden for appellant.
C. David Sands, III, Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General, Angelique Rogers, Assistant Attorney General, on brief), for appellee.
MEMORANDUM OPINION BY JUDGE VERNIDA R. CHANEY
Ben Roland McMurtray appeals his conviction, following a bench trial, for assault and
battery of a law enforcement officer. McMurtray argues that the evidence was insufficient to
support his conviction. This Court disagrees and affirms the circuit court’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. BACKGROUND2
On June 5, 2023, Mathews County Sheriff’s Sergeants Berry and Croxton were dispatched
to conduct a welfare check on McMurtray.3 The sergeants wore their law enforcement uniforms,
displayed badges of authority, and drove separate patrol vehicles. They spotted McMurtray in a
driveway between two houses near a park.
When Croxton parked on the driveway and opened his door, McMurtray pulled a steak knife
out of his right pants pocket. Only the vehicle’s door separated Croxton from McMurtray.
Concerned for his safety, Croxton drew his firearm. McMurtray then fled behind the house,
disregarding Croxton’s orders to stop. Croxton followed but could not locate him.
Berry soon arrived, and she and Croxton saw McMurtray dash from the houses toward the
park. Sheriff Edwards also arrived in her unmarked police car with emergency lights activated. She
saw McMurtray walking toward her vehicle while Berry and Croxton were about a quarter mile
down the road. Edwards wore her law enforcement badge in plain view.
Edwards parked her vehicle, approached McMurtray on foot, and asked him what was
happening. He immediately brandished the steak knife, “point[ed] it at [her],” and told her to stay
away. R. 119-20. Edwards drew her firearm and ordered him to drop the knife several times.
McMurtray stood within 10 feet of Edwards during their exchange. Based on his demeanor,
Edwards felt that McMurtray would have used the knife if she had moved closer.
2 “Consistent with the standard of review when a criminal appellant challenges the sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we discard any evidence that conflicts with the Commonwealth’s evidence, and regard as true all the credible evidence favorable to the Commonwealth and all inferences that can be fairly drawn from that evidence. Cady, 300 Va. at 329. 3 The record does not establish who called for the welfare check or for what reason. The officers testified, however, that they spoke with McMurtray’s grandfather before the encounter. R. 81, 97. -2- Berry testified that she feared for Edwards’s safety, prompting her to run toward Edwards.
When Croxton and Berry ran toward them, McMurtray dashed into a field still holding the knife. A
nearby civilian4 asked McMurtray to stop and told him it was not “worth it.” R. 121. By the time
Edwards caught up, McMurtray had dropped his knife on the ground and was hugging the civilian.
The officers arrested McMurtray and found a wrench in his pocket. McMurtray was
charged with assault and battery of a law enforcement officer, two counts of carrying a concealed
weapon, and fleeing law enforcement. At the bench trial, the Commonwealth introduced the steak
knife and wrench into evidence, along with the testimony outlined above.
After the Commonwealth rested, McMurtray moved to strike, arguing that the evidence
failed to prove that he assaulted Edwards or that he knew she was law enforcement. The circuit
court denied the motion. McMurtray presented no evidence and renewed his motion to strike. The
court overruled the motion and convicted McMurtray of assault on a law enforcement officer.5
ANALYSIS
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.” Code § 18.2-57(C). 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.” Blankenship v. Commonwealth,
71 Va. App. 608, 620 (2020) (alteration in original) (quoting Clark v. Commonwealth, 54
Va. App. 120, 128 (2009) (en banc)).
4 This civilian is unidentified but throughout the transcript is referred to as “the Good Samaritan.” R. 92-96, 98, 115, 121, 123. 5 The circuit court dismissed the other charges. -3- Because we have merged the common law crime and tort of assault, there are three separate ways the Commonwealth can establish the crime of assault and battery under Code § 18.2-57: (1) by proving a battery; (2) by proving common law criminal assault; or (3) by proving common law tortious assault.
Id. “Proof sufficient to establish any one of these theories is sufficient to establish the crime of
assault and battery.” Id.
“When an appellate court reviews the sufficiency of the evidence underlying a criminal
conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The
judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly
wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)
(quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does
not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition
it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023)
(alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)).6
The only relevant question for this Court on review “is, after reviewing the evidence in
the light most favorable to the prosecution, whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan v.
Commonwealth, 280 Va. 672, 676 (2010)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” McGowan v.
Commonwealth, 72 Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App.
149, 161 (2018)).
6 Some evidence could support an inference that McMurtray was experiencing a mental health crisis during the encounter with law enforcement. Viewed in the light most favorable to the Commonwealth, however, those facts do not render the evidence insufficient to support McMurtray’s conviction. -4- In this case, the evidence supports McMurtray’s conviction under the elements necessary
to prove common law tortious assault. The Commonwealth showed “that the defendant engaged
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COURT OF APPEALS OF VIRGINIA
Record No. 2077-24-1
BEN ROLAND MCMURTRAY v. COMMONWEALTH OF VIRGINIA
Present: Judges Ortiz, Chaney and Frucci Argued at Virginia Beach, Virginia Opinion Issued July 14, 2026*
FROM THE CIRCUIT COURT OF MATHEWS COUNTY Jeffrey W. Shaw, Judge
Charles E. Haden for appellant.
C. David Sands, III, Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General, Angelique Rogers, Assistant Attorney General, on brief), for appellee.
MEMORANDUM OPINION BY JUDGE VERNIDA R. CHANEY
Ben Roland McMurtray appeals his conviction, following a bench trial, for assault and
battery of a law enforcement officer. McMurtray argues that the evidence was insufficient to
support his conviction. This Court disagrees and affirms the circuit court’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. BACKGROUND2
On June 5, 2023, Mathews County Sheriff’s Sergeants Berry and Croxton were dispatched
to conduct a welfare check on McMurtray.3 The sergeants wore their law enforcement uniforms,
displayed badges of authority, and drove separate patrol vehicles. They spotted McMurtray in a
driveway between two houses near a park.
When Croxton parked on the driveway and opened his door, McMurtray pulled a steak knife
out of his right pants pocket. Only the vehicle’s door separated Croxton from McMurtray.
Concerned for his safety, Croxton drew his firearm. McMurtray then fled behind the house,
disregarding Croxton’s orders to stop. Croxton followed but could not locate him.
Berry soon arrived, and she and Croxton saw McMurtray dash from the houses toward the
park. Sheriff Edwards also arrived in her unmarked police car with emergency lights activated. She
saw McMurtray walking toward her vehicle while Berry and Croxton were about a quarter mile
down the road. Edwards wore her law enforcement badge in plain view.
Edwards parked her vehicle, approached McMurtray on foot, and asked him what was
happening. He immediately brandished the steak knife, “point[ed] it at [her],” and told her to stay
away. R. 119-20. Edwards drew her firearm and ordered him to drop the knife several times.
McMurtray stood within 10 feet of Edwards during their exchange. Based on his demeanor,
Edwards felt that McMurtray would have used the knife if she had moved closer.
2 “Consistent with the standard of review when a criminal appellant challenges the sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we discard any evidence that conflicts with the Commonwealth’s evidence, and regard as true all the credible evidence favorable to the Commonwealth and all inferences that can be fairly drawn from that evidence. Cady, 300 Va. at 329. 3 The record does not establish who called for the welfare check or for what reason. The officers testified, however, that they spoke with McMurtray’s grandfather before the encounter. R. 81, 97. -2- Berry testified that she feared for Edwards’s safety, prompting her to run toward Edwards.
When Croxton and Berry ran toward them, McMurtray dashed into a field still holding the knife. A
nearby civilian4 asked McMurtray to stop and told him it was not “worth it.” R. 121. By the time
Edwards caught up, McMurtray had dropped his knife on the ground and was hugging the civilian.
The officers arrested McMurtray and found a wrench in his pocket. McMurtray was
charged with assault and battery of a law enforcement officer, two counts of carrying a concealed
weapon, and fleeing law enforcement. At the bench trial, the Commonwealth introduced the steak
knife and wrench into evidence, along with the testimony outlined above.
After the Commonwealth rested, McMurtray moved to strike, arguing that the evidence
failed to prove that he assaulted Edwards or that he knew she was law enforcement. The circuit
court denied the motion. McMurtray presented no evidence and renewed his motion to strike. The
court overruled the motion and convicted McMurtray of assault on a law enforcement officer.5
ANALYSIS
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.” Code § 18.2-57(C). 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.” Blankenship v. Commonwealth,
71 Va. App. 608, 620 (2020) (alteration in original) (quoting Clark v. Commonwealth, 54
Va. App. 120, 128 (2009) (en banc)).
4 This civilian is unidentified but throughout the transcript is referred to as “the Good Samaritan.” R. 92-96, 98, 115, 121, 123. 5 The circuit court dismissed the other charges. -3- Because we have merged the common law crime and tort of assault, there are three separate ways the Commonwealth can establish the crime of assault and battery under Code § 18.2-57: (1) by proving a battery; (2) by proving common law criminal assault; or (3) by proving common law tortious assault.
Id. “Proof sufficient to establish any one of these theories is sufficient to establish the crime of
assault and battery.” Id.
“When an appellate court reviews the sufficiency of the evidence underlying a criminal
conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The
judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly
wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)
(quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does
not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition
it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023)
(alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)).6
The only relevant question for this Court on review “is, after reviewing the evidence in
the light most favorable to the prosecution, whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan v.
Commonwealth, 280 Va. 672, 676 (2010)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” McGowan v.
Commonwealth, 72 Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App.
149, 161 (2018)).
6 Some evidence could support an inference that McMurtray was experiencing a mental health crisis during the encounter with law enforcement. Viewed in the light most favorable to the Commonwealth, however, those facts do not render the evidence insufficient to support McMurtray’s conviction. -4- In this case, the evidence supports McMurtray’s conviction under the elements necessary
to prove common law tortious assault. The Commonwealth showed “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.’” Blankenship, 71 Va. App. at
620 (quoting Clark, 54 Va. App. at 128). An overt act is “an attempt or offer, with force and
violence, to do some bodily hurt to another.” Id. at 621 (quoting Harper v. Commonwealth, 196
Va. 723, 733 (1955)). Words alone are not an assault, but they are relevant in determining
“whether the defendant committed the required overt act with the necessary intent,” or “whether
the ‘fear or apprehension in the victim’ was ‘reasonable.’” Id. (quoting Clark, 54 Va. App. at
129).
We conclude 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. R. 119-20. 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.
-5- The reasonable hypothesis of innocence principle “merely echoes ‘the standard applicable to
every criminal case.’” Vasquez v. Commonwealth, 291 Va. 232, 250 (2016) (quoting Cook v.
Commonwealth, 226 Va. 427, 433 (1983)). “[W]hether an alternate hypothesis of innocence is
reasonable is a question of fact and, therefore, is binding on [this Court] unless plainly wrong.”
Clark v. Commonwealth, 78 Va. App. 726, 752 (2023) (alterations in original) (quoting Maust v.
Commonwealth, 77 Va. App. 687, 700 (2023)). “Merely because defendant’s theory of the case
differs from that taken by the Commonwealth does not mean that every reasonable hypothesis
consistent with his innocence has not been excluded. What weight should be given evidence is a
matter for the [factfinder] to decide.” Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)
(alteration in original) (quoting Miles v. Commonwealth, 205 Va. 462, 467 (1964)). “By finding
the defendant guilty, therefore, the factfinder ‘has found by a process of elimination that the
evidence does not contain a reasonable theory of innocence.’” Id. (quoting United States v.
Kemble, 197 F.2d 316, 320 (3d Cir. 1952)).
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.” Blankenship, 71
Va. App. at 620. 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.’” Id. (emphasis
added) (quoting Clark, 54 Va. App. at 128).
The issue before us, then, is not whether a reasonable factfinder could conclude that
McMurtray actually intended to use the knife against Edwards. Instead, we review 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. In Blankenship, we found this
-6- standard met when the defendant, “standing only a few feet from the officers,” shook his fists,
angrily cursed, and “took a fighting stance” when they attempted to arrest him. Id. at 622.
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. R. 119-20. 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 the record before us, the circuit court’s rejection of McMurtray’s hypothesis
was not plainly wrong, so we affirm.
CONCLUSION
For these reasons, this Court affirms the circuit court’s judgment.
Affirmed.
-7-