838 S.E.2d 568
Va. Ct. App.2020Background:
- On May 26, 2017, Brandon Blankenship returned to Wally Andrews’s property after being told not to come there, threatened Andrews (“I’m going to kill you”), and paced toward Andrews multiple times.
- Andrews called police; Officers Engle, Cundiff, and O’Brien responded in uniform with K-9 Titan. Blankenship cursed at officers, claimed they were not the real police, and twice assumed a fighting stance and balled his fists when officers attempted to arrest him for public intoxication.
- Officer O’Brien pepper-sprayed Blankenship and Officer Engle released K-9 Titan. Blankenship punched and kicked Titan repeatedly during the pursuit and after falling; Titan later became lethargic and showed a veterinarian-diagnosed digestive injury.
- Blankenship waived a jury, proceeded to a bench trial, and at close of the Commonwealth’s case several counts were struck; the court convicted Blankenship of two counts of assault and battery on law-enforcement officers (Engle and O’Brien), one count of assault and battery on Andrews, and one count of animal cruelty.
- Sentencing included apparent scrivener’s errors (misstated counts and some unrelated sentences); the Court of Appeals affirmed the convictions but remanded solely to correct the sentencing order.
Issues:
| Issue | Commonwealth's Argument | Blankenship's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for assault and battery on law-enforcement officers (Engle & O’Brien) | Words plus overt acts (shaking fists, advancing in fighting stance, threats) and officers’ reasonable fear support convictions under merged assault/battery doctrines and § 18.2-57(C). | Conduct was verbal and defensive; evidence insufficient to prove the overt act/ability to inflict harm or knowledge that victims were officers. | Affirmed. A rational factfinder could find overt acts and reasonable fear; Blankenship knew or had reason to know officers were law enforcement. |
| Sufficiency of evidence for assault and battery on Andrews | Threats to kill combined with repeatedly moving toward Andrews created a reasonable apprehension of harm supporting assault. | Words alone cannot constitute assault; evidence insufficient without a battery or present ability to harm. | Affirmed. Threats plus advancing conduct were sufficient to establish assault under the tort/criminal definitions. |
| Sufficiency of evidence for animal cruelty (K-9 Titan) | Repeated punches and kicks showed willful infliction of inhumane injury or cruel beating; veterinarian testimony supported that the dog felt pain and sustained a digestive injury; resistance to lawful arrest is not justified. | Actions were necessary to prevent the dog from biting him; insufficient proof the dog experienced pain or inhumane injury. | Affirmed. Evidence supported willful infliction of injury/pain; resisting a lawful arrest with force against a K-9 is not justified. |
| Sentencing order errors | N/A (appellate court identified clerical/scrivener inconsistencies) | N/A | Remanded for correction of sentencing order to reflect trial court’s oral judgments and omit unrelated sentences. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- Clark v. Commonwealth, 54 Va. App. 120 (2009) (discussing merged definitions of assault and battery)
- Carter v. Commonwealth, 269 Va. 44 (2005) (defining overt-act and apprehension elements of assault)
- Harper v. Commonwealth, 196 Va. 723 (1955) (examples of overt acts sufficient for assault)
- Pelloni v. Commonwealth, 65 Va. App. 733 (2016) (mens rea for willful infliction under animal-cruelty statute)
- McCracken v. Commonwealth, 39 Va. App. 254 (2002) (no right to resist lawful arrest)
- Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988) (use of police K-9s as a reasonable instrumentality to effectuate arrest)