                   COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia


MICHAEL SIMMONS
                                       MEMORANDUM OPINION * BY
v.   Record No. 1805-93-1            JUDGE JAMES W. BENTON, JR.
                                            JUNE 20, 1995
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                      Nelson T. Overton, Judge

           Lyn M. Simmons for appellant.
           Robert H. Anderson, III, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



      Michael Simmons was convicted of three violations of Code

§ 18.2-41 for being a member of a mob which injured with the

intent to maim Barbara Steele, Steven Forrest, and Lori Clark.

He was also convicted of two violations of Code § 18.2-42 for

being a member of a mob which assaulted Dennis Clark and Robert

Wilkes.   Simmons contends on appeal that the evidence was

insufficient to prove that either a mob existed or that, even if

a mob existed, he was a member of a mob.   Because we agree that

the Commonwealth failed to prove beyond a reasonable doubt that

Simmons was a part of a mob, we reverse his convictions.

                                I.

      The evidence proved that at 11:30 p.m. on February 13, 1993,

Simmons arrived at Circle Lanes Bowling Alley and began bowling

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
with five of his high school friends, including Allen Iverson and

Samuel Wynn.   They bowled in lanes nine and ten.   The bowling

alley was very busy and crowded that evening.

     At midnight, Iverson was in the area of the snack bar.       Near

the snack bar, a group from Poquoson, Virginia was bowling.      The

bowlers from Poquoson had arrived at 7:30 p.m. and were bowling

on lanes twenty-nine and thirty.    This group included Steven

Forrest, Lori Clark, and four other persons.    As Iverson stood

nearby, the Poquoson bowlers, with the exception of one who was

bowling, were sitting at a table in front of the snack bar

drinking beer.
     Dennis Clark, who was bowling two lanes away with Barbara

Steele, Robert Wilkes and two other people, testified that he saw

a "confrontation between a white male [, Forrest] and a black

male [, Iverson]."    He could not hear the conversation and did

not see them touch each other.    He said both men initially were

sitting at a table.   He then saw Iverson standing about three

feet from Forrest.    Clark testified that he did not continue to

watch the men.   Shortly after he sat down and was facing his

bowling lane with his friends, he saw "twenty to thirty" black

males throwing chairs and moving from lower numbered lanes toward

the higher numbered lanes.   During the ensuing brawl Clark was

struck in the head with a chair.

     Forrest testified that Iverson was six feet away and then

approached within two or three feet of their table cursing at




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them without cause.   He testified that when he stood to tell

Iverson that they "had no problem with him," Iverson backed away

from him.   Forrest testified that as Iverson stepped back someone

other than Iverson hit him on the head.   Forrest said that when

he turned to see who hit him he saw approximately twenty-five

persons coming from the other end of the bowling area.   He said

that most of the people were running as they approached and some

were walking at a fast pace.    Forrest said he and his friends

were attacked and chairs were thrown.   Forrest also testified

that at the height of the ensuing fight "most of the people

involved were throwing chairs," including himself and his

friends.    He testified that Simmons hit him with a chair.
     Lori Clark testified that as soon as Forrest stood Simmons

ran from the control counter area and struck Forrest with his

fist on the back of the head.   She testified that Simmons then

"faded back . . . he didn't stick around."   When the fighting

began, Clark was struck by a chair and injured.   After she was

hit by a chair she threw a chair.   She did not know who hit her.

     Barbara Steele, who was bowling in lane twenty-seven with

Dennis Clark, testified that the bowling alley was very crowded.

She noticed a "commotion going on" near the lane where she was

bowling.    She testified that when she saw people moving toward

the commotion she went to Iverson and asked "why does this have

to be racial."   She also testified that she saw Simmons nearby.

She did not see Simmons do anything.    Later she was hit by a




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chair and received a laceration on her head.   She was unable to

identify her assailants.

     Robert Wilkes, who was bowling with Clark and Steele in the

lanes near the Poquoson group, saw Iverson and Forrest standing

and they "weren't exactly exchanging pleasantries."   During the

discussion, which he could not hear, he saw a person other than

Iverson punch Forrest.   Shortly afterwards, a brawl began and

people began throwing chairs.   As Wilkes went to assist one of

his friends he was knocked unconscious.
     Simmons testified in his defense that he and his friends

arrived at 10 p.m.   Around midnight, Iverson went to get food.

As Simmons was bowling, he saw Iverson and Forrest "gesturing

back and forth."   Although he could not hear them, he surmised

"[t]hat something might break out if somebody didn't separate

them."   He testified that he ran to "get Iverson out of there."

He further testified that as he got close to them he saw Forrest

swing a chair at Iverson.    Simmons testified that Forrest then

swung a chair at him.    He blocked the chair and punched Forrest.

He testified that he then moved away but remembered that he had

bowling shoes on his feet.   Simmons said that he ran to return

the bowling shoes.   He testified that after he got his shoes, he

saw Forrest again and threw a chair which hit Forrest.   He said

that he then left the bowling alley.

                                 II.

     Code § 18.2-41 provides that "[a]ny and every person




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composing a mob which shall maliciously or unlawfully shoot,

stab, cut or wound any person, or by any means cause him bodily

injury with intent to maim, disable, disfigure or kill him, shall

be guilty of a Class 3 felony."    In addition, Code § 18.2-42

provides that "[a]ny and every person composing a mob which shall

commit a simple assault or battery shall be guilty of a Class 1

misdemeanor."    Mob is defined as "[a]ny collection of people,

assembled for the purpose and with the intention of committing an

assault or a battery upon any person and without authority of

law."    Code § 18.2-38.
        The Commonwealth argues that the evidence proved that a mob

had formed.    However, we need not decide this question because

even if the evidence proved that some of the people in the

bowling alley assembled in a manner to constitute a mob, no

evidence proved that Simmons was a member of that mob.    Assuming

arguendo that a mob had formed, the Commonwealth had the burden

of proving beyond a reasonable doubt that Simmons "was a member

of a mob that was assembled for the purpose and with the

intention to commit an unlawful assault or battery."     Harrell v.

Commonwealth, 11 Va. App. 1, 6, 396 S.E.2d 680, 682 (1990).

        Reviewing the evidence in the light most favorable to the

Commonwealth, the testimony proved that Simmons punched Forrest

as Forrest and Iverson exchanged words.    Although Simmons

contends that Forrest hit him first with a chair, that testimony

is disputed.    Even if Simmons was at fault in the confrontation,




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no evidence establishes that this confrontation was part of any

mob action.

     "Not every incidence of group violence or assaultive conduct

which involves a number of people collectively involved in

assaultive conduct constitutes a 'mob' assault and battery."

Harrell v. Commonwealth, 11 Va. App. 1, 7, 396 S.E.2d 680, 683

(1990).   If the evidence merely proved that individuals were

"independently reacting adversely and violently" to a situation,

the proof will not suffice to establish that the individuals were

part of a mob.     Id. at 10, 396 S.E.2d at 684.

     Although a brawl ensued after the patrons of the bowling

alley watched Iverson argue with Forrest and Simmons punch

Forrest, no evidence proved that Simmons joined in any mob that

may have formed.    At best, the Commonwealth proved that Simmons

hit Forrest and threw more than one chair.    "There is no chain of

circumstances establishing, 'to the exclusion of any other

rational hypothesis and to a moral certainty,' that . . .

[Simmons' conduct] was any more than an offense committed by one

aggressive individual from among a boisterous crowd."    Id. at 11,

396 S.E.2d at 685 (citation omitted).

     Although the evidence would have been sufficient to prove

individual assaultive conduct, it was insufficient to prove

beyond a reasonable doubt that Simmons acted as a part of a mob.

Therefore, the convictions are reversed and the case is remanded

to the circuit court for such further action as the Commonwealth




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may be advised.

                          Reversed and remanded.




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