                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge McClanahan and Senior Judge Coleman
Argued at Salem, Virginia


KELIS ALLEN HAMILTON
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1591-07-3                                   JUDGE SAM W. COLEMAN III
                                                                  NOVEMBER 4, 2008
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                 Thomas H. Wood, Judge

                 Tate C. Love (Black, Noland & Read, P.L.C., on briefs), for
                 appellant.

                 Karen Misbach, Assistant Attorney General II (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Kelis Allen Hamilton (appellant) appeals his convictions of participating in a criminal

street gang in violation of Code § 18.2-46.2 and three counts of assault and battery by a mob in

violation of Code § 18.2-42. He argues that the evidence was insufficient to prove that he was a

member of a criminal street gang, that the evidence was insufficient to prove that the assaults of

Garrett Johnston and Daniel Payne were committed by a mob, and that the evidence was

insufficient to prove that he was a member of a mob that assaulted Johnston, Payne, and Zachary

Small. We disagree and affirm.

                                          BACKGROUND

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved that Johnston and his

brother hosted a party at a large farm as an end of summer celebration. Approximately 400

people attended the party, and alcohol was available. The party lasted from approximately

10:00 p.m. until approximately 3:00 the next morning. Johnston saw a number of individuals

with red bandanas standing together in one section of a tent. Johnston introduced himself to the

individuals and asked, “Are you guys Bloods?” The individuals responded that they were.

       Numerous witnesses testified as to certain events that each had observed over the course

of the evening that were relevant to collectively prove that appellant was a member of a gang and

as such participated in the mob activity in which Johnston, Payne, and Small were assaulted by

the gang members.

       Christopher McLaughlin attended the party, and he saw appellant there. Appellant

approached McLaughlin, who was wearing a red shirt and a red baseball cap from his

employment, and said, “You’re a Blood and don’t even know it.” McLaughlin responded he

was not a Blood, but appellant again told McLaughlin he was a Blood because he was wearing

red. McLaughlin walked away from appellant.

       Special Agent Mark Campbell with the Virginia State Police Gang Unit, a gang

investigator, testified he was familiar with a gang called the Nine Trey Bloods. Campbell

testified Tyrone Marquise Scott had a tattoo that showed he was a second lieutenant in the Nine

Trey Bloods. Members of the Bloods frequently wore Boston Red Sox’s caps because they

displayed a large red capital “B.”

       At approximately 3:00 a.m., Johnston saw a big scuffle and heard the individuals that he

had spoken to earlier say “Blood at” in a way that mimicked gunfire. Johnston approached the

group and asked what was going on. Scott hit Johnston with a tiki torch. Johnston testified

several individuals with red bandanas covering their faces surrounded Scott as if to protect Scott.

                                               -2-
Johnston was unable to identify appellant as being a member of the group surrounding Scott.

Katherine Duncan saw Scott hit Johnston, and she testified that Scott was “standing out in front

of a crowd wanting to fight people.” The individuals standing with Scott wore red bandanas and

red t-shirts.

        At some point during the party, Payne heard what sounded like fireworks and he went to

investigate. An individual hit Payne in the face with a tiki torch, but he could not identify him.

Payne “went after” the individual who had hit him and when he did so he felt a gun against his

chest. The individual with the gun pulled the trigger, but the gun did not discharge. Payne

testified there were two men standing next to each other and he was not sure if the individual

who hit him with the tiki torch was the same individual who held a gun to his chest. Payne could

not describe either individual. Adam Switzer saw individuals wearing red, and heard someone

yell “Blood at.” Switzer saw someone hit Payne with a tiki torch, and saw another individual

point a gun at Payne and pull the trigger. Clement Miller saw an individual hit Payne with a tiki

torch, and he saw an individual threaten to kill Payne. He saw another individual point a gun at

Payne and pull the trigger.

        Jakari Hart had a gun, and he discharged it into the air while appellant was standing next

to him. Hart testified appellant tried to take the gun from him, but that he gave the gun to Scott.

Hart admitted he had testified to the grand jury that appellant then got the gun from Scott.

        Small was wearing a dark blue shirt, and at one point during the party he walked near a

crowd when he kicked a bottle. An expert testified that the color blue is the color for the Crips, a

rival gang of the Bloods. Small bent over to pick up the bottle and, when he stood up, a large

African-American man hit him in the face. Small told the man who hit him, “Hold on, man. I

ain’t like that[,]” after which someone said, “You made it like that” and then several individuals

hit him, knocking him unconscious. Small told an investigator that while he was being hit the

                                                -3-
individuals said, “We ain’t wearing red for nothing.” McLaughlin saw approximately twelve

individuals kick and beat Small. McLaughlin testified the individuals were wearing

predominately red and said, “You don’t think we’re wearing red for nothing.” While Small was

unconscious, his back was twice burned with a cigarette. Small testified that he had known

appellant for approximately ten years, that he saw appellant at the party, and that before the trial

appellant’s girlfriend approached his cousin, and asked the cousin to get Small to drop the

charges.

       Christina Wade, appellant’s girlfriend, testified to telephone conversations she had with

appellant that a reasonable fact finder could interpret as an attempt by appellant to intimidate the

Commonwealth’s witnesses.

       Donald Stouffer saw a large man yelling, “We’re not wearing red for the hell of it.”

Stouffer knew appellant, and he saw appellant “doing something” to Small’s back while Small

was on the ground unconscious. Stouffer testified appellant was not trying to help Small.

       Special Agent Campbell, the gang investigator for the state police and expert in the Nine

Trey Bloods, testified the cigarette burns on Small’s back could have been the beginning of a

“Trey burn,” which was a Blood mark, and the burns could have been retaliation for showing

disrespect to the Nine Trey Bloods. Campbell testified if a Blood member thought an individual

was a member of the Crips and put a “Trey burn” on the person, it would be a sign of great

disrespect.

       Investigator Christopher Hartless, an officer with an anti-gang task force and an expert in

the Nine Trey Bloods, testified the words “Blood at” were a war cry for the Bloods. Hartless

explained that when members of the Blood gang hear the war cry, they converge to the source of

the cry and provide whatever assistance is needed. Hartless also testified that something as small

as a hat could show an affiliation to a gang and the higher on the body the item was worn, the

                                                -4-
more respect was shown for the gang. Hartless also explained the significance of certain hand

signals that some of the Commonwealth’s witnesses saw at the party.

       Whitney Randolph, appellant’s cousin, witnessed fights at the party. Randolph testified

the first fight she saw was when Scott “knocked out” a man after he kicked a bottle. Randolph

testified three or four people jumped into the fight, but appellant, who was standing on a hill

approximately twenty feet away, was not one of them.

       Appellant initially told investigating officers that he did not attend the party. But, at trial

he testified that he attended the party and talked to Small. Appellant had known Small for

approximately ten years. Appellant testified he witnessed fights and helped one of the hosts of

the party break up a fight. He also testified he saw the large fight at the end of the party while he

talked with Dean Crawford and Jeremy Redman. Appellant testified he saw two men get hit

with tiki torches and that he saw Hart pull out a firearm, firing it in the air. Appellant testified

Scott grabbed the firearm from Hart and that Scott put the firearm to another individual’s chest.

Appellant saw the firearm “flying up in the air” during the fight. Appellant testified he did not

see the incident involving Small, that he did not participate in any fight, that he never possessed

the firearm, and he was not a member of a gang. Appellant admitted he could have worn a

Boston Red Sox’s hat to the party. On cross-examination, appellant admitted he did see the

cigarette burn incident involving Small, but he did not realize at the time that Small was the

victim. Appellant testified Hart was his friend, but that Hart was lying when he told the grand

jury that appellant had the firearm.

                                             ANALYSIS

       Appellant argues the evidence was insufficient to prove that a mob formed with the intent

to assault Johnston and Payne, and the evidence was insufficient to prove he was a member of

the mob that assaulted Johnston, Payne, and Small. Appellant contends no witness identified

                                                 -5-
him at the scene of Johnston’s assault. He argues that Scott hitting Johnston with a tiki torch was

nothing more than “one belligerent individual” hitting a victim. Appellant further contends no

witness identified him at the scene of Payne’s assault and that Payne was not assaulted by a mob

because there was no evidence of shared intent. Appellant contends only Stouffer’s testimony

placed him at the scene of Small’s assault, but he could have been helping Small at that time.

       Code § 18.2-46.2 provides:

               Any person who actively participates in or is a member of a
               criminal street gang and who knowingly and willfully participates
               in any predicate criminal act committed for the benefit of, at the
               direction of, or in association with any criminal street gang shall be
               guilty of a Class 5 felony.

       “In order to prove that [the defendant] participated in a ‘criminal street gang,’ the

Commonwealth was required to show that members of the gang ‘individually or collectively

engage in or have engaged in a pattern of criminal gang activity.’” Corado v. Commonwealth,

47 Va. App. 315, 332, 623 S.E.2d 452, 460 (2005) (quoting Code § 18.2-46.1).

       “In order to sustain a conviction of assault or battery by mob under Code § 18.2-42, the

evidence must establish that the accused was a member of a mob and that the mob committed

simple assault or battery.” Commonwealth v. Leal, 265 Va. 142, 146, 574 S.E.2d 285, 288

(2003). “Under Code § 18.2-38, a ‘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 or an

act of violence as defined in § 19.2-297.1, without authority of law . . . .’” Hughes v.

Commonwealth, 43 Va. App. 391, 399, 598 S.E.2d 743, 746-47 (2004).

               In order for group behavior by individuals to become mob
               behavior, thereby making “[a]ny and every person composing a
               mob culpable for the criminal acts of the other mob members, the
               group must have “assembled for the purpose and with the intention
               of committing an assault or a battery upon any person.”




                                                -6-
Harrell v. Commonwealth, 11 Va. App. 1, 7, 396 S.E.2d 680, 683 (1990) (quoting Code

§ 18.2-38). “To prove the crime of battery or maiming by mob, the Commonwealth must

‘establish beyond a reasonable doubt that the group of persons were at the time of the battery [or

maiming] assembled as a mob with a purpose and intention of committing an assault or battery

[or maiming].’” Hughes, 43 Va. App. at 400, 598 S.E.2d at 747 (quoting Harrell, 11 Va. App. at

4, 396 S.E.2d at 681).

               The criteria which distinguishes individual behavior while part of a
               group from “mob” behavior is assembling for the specific purpose
               and with the specific intent of committing an assault and battery
               upon any person. That is not to say that the purpose for which the
               group initially came together must have been for the purpose of
               committing an assault and battery before a “mob” may be said to
               have “assembled.” It is possible that individuals who are lawfully
               assembled may become members of a “mob” without great
               deliberation and for them to become part of a group which is
               moved or controlled by those impulsive and irrational forces which
               perpetuate mob violence. For a group of persons lawfully gathered
               for whatever purpose to “assemble” as a mob within the
               intendment of Code § 18.2-38, they need only to collectively band
               together with the common purpose and intention of committing an
               assault and battery upon a person. Whether a group of individuals
               has been so transformed into a “mob” depends upon the
               circumstances; no particular words or express agreements are
               required to effect a change in a group’s purpose or intentions.
               Events or emotionally charged circumstances suddenly may focus
               individuals toward a common goal or purpose without an express
               or stated call to join forces.

Harrell, 11 Va. App. at 7-8, 396 S.E.2d at 683.

       “The credibility of the witnesses and the weight accorded the evidence are matters solely

for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). “In its role of

judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of

the accused and to conclude that the accused is lying to conceal his guilt.” Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).


                                                 -7-
          “On review, this Court does not substitute its judgment for that of the trier of fact.

Instead, the jury’s verdict will not be set aside unless it appears that it is plainly wrong or without

supporting evidence.” Canipe v. Commonwealth, 25 Va. App. 629, 644, 491 S.E.2d 747, 754

(1997).

          Early in the party, individuals wearing red bandanas told Johnston they were Bloods.

Appellant attended the party and, prior to the fights, he told McLaughlin, who was wearing a red

hat and shirt, that he was “a Blood and don’t even know it.” During cross-examination,

appellant reluctantly admitted he might have been wearing a Boston Red Sox’s hat. An expert in

gang activity testified a Boston Red Sox’s hat, which has a red capital “B” on it, was frequently

worn by members of the Bloods, and the higher on the body the item was worn, the more respect

was shown for the gang. The evidence shows that appellant identified with the Bloods. At

approximately 3:00 a.m., just before the party ended, Johnston saw a group of individuals

fighting and he went to investigate. Johnston heard the specific gang signal “Blood at” said in a

way mimicking gunfire. The “Blood at” gang signal was a signal for members of the Bloods to

converge and help a fellow gang member. Johnston approached the scene, saw several

individuals with red bandanas over their faces, and Scott hit Johnston with a tiki torch. Scott was

a lieutenant in the Nine Trey Bloods, and he was “standing out in front of a crowd wanting to

fight people.” Scott’s assault and battery of Johnston was not an instance of “one belligerent

individual,” but supports the jury’s determination that the individuals banded together with the

common purpose and intention of committing an assault and battery. There was sufficient

evidence proving that a mob committed an assault and battery on Johnston in violation of Code

§ 18.2-42.

          Payne went to investigate a noise, and an individual hit him with a tiki torch. Switzer

heard someone yell the specific gang signal “Blood at” just prior to Payne being hit. There was

                                                   -8-
sufficient evidence proving that a mob committed an assault and battery on Payne in violation of

Code § 18.2-42.

       Although appellant testified he did not participate in the fights involving Johnston and

Payne, he admitted he witnessed Johnston and Payne being hit with tiki torches. Prior to being

hit, Johnston heard the war cry for the Bloods. Scott, a leader in the gang, hit Johnston while

surrounded by several individuals wearing red bandanas covering their faces. The jury rejected

appellant’s testimony that he was not one of the individuals surrounding Scott. When Payne was

hit with a tiki torch, Hart, appellant’s friend, testified appellant was standing next to him and that

appellant tried to grab a firearm from him. Hart gave the firearm to Scott and, according to

Hart’s grand jury testimony, appellant got the firearm from Scott. Payne felt a firearm next to

his chest. The jury was entitled to reject appellant’s testimony that he was not the individual

who held a firearm to Payne’s chest after Payne was hit with a tiki torch. Appellant admitted he

was in the area of the fights. The evidence was sufficient to support the jury’s determination that

appellant was participating in the mob activity involving Payne.

       Small wore a dark blue shirt, the color for the Crips, a rival gang of the Bloods. Small

bent over to pick up a bottle and, when he stood up, a man hit him in the face. Small said, “Hold

on, man. I ain’t like that.” Small testified someone said, “You made it like that” and then

individuals hit Small, knocking him unconscious. Prior to losing consciousness, Small heard the

individuals state, “We ain’t wearing red for nothing.” Stouffer knew appellant, and he saw

appellant “doing something” to Small’s back while Small was on the ground unconscious.

According to Stouffer, appellant was not trying to help Small. While Small was unconscious, his

back was twice burned with a cigarette. A gang expert explained the significance of the cigarette

burns to Small’s back. After the incident, appellant’s girlfriend approached Small’s cousin and




                                                 -9-
asked Small to drop the charges. There was sufficient evidence supporting the jury’s decision

that appellant participated in the mob activity involving Small.

       Accordingly, there was sufficient evidence supporting the jury’s decision that appellant

participated in a criminal street gang in violation of Code § 18.2-46.2 and he participated in the

assault and battery of Johnston, Payne, and Small in violation of Code § 18.2-42.

                                                                                          Affirmed.




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