                    COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Bray
Argued at Norfolk, Virginia

ALLEN IVERSON
                                    MEMORANDUM OPINION * BY
v.   Record No. 1825-93-1         JUDGE JAMES W. BENTON, JR.
                                         JUNE 20, 1995
COMMONWEALTH OF VIRGINIA


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

            Lisa P. O'Donnell; Thomas B. Shuttleworth
            (Lawrence H. Woodward, Jr.; Shuttleworth,
            Ruloff, Giordano & Kahle, P.C., on brief),
            for appellant.

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



      Allen Iverson was convicted in a bench trial for three

violations of Code § 18.2-41 for being a member of a mob that

injured with the intent to maim Lori K. Clark, Barbara M. Steele,

and Steven W. Forrest.   On this appeal, he contends that the

Commonwealth failed to prove that a mob, as statutorily defined,

had formed and, even if a mob had formed, that he was a member of

that mob.   For the reasons that follow, we reverse the

convictions.

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

Iverson arrived at Circle Lanes Bowling Alley and began bowling

with five of his high school friends.   They bowled in lanes nine

and ten.    The bowling alley was very busy and crowded that

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evening.

     At midnight, Iverson went to 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 two

lanes, including lane thirty.    This group included Steven

Forrest, Lori Clark, and six 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.
     Forrest testified that Iverson approached their table

cursing at them without cause.    He testified that when he stood

up to tell Iverson that "we don't have a problem" someone other

than Iverson hit him on the back of the head.   Forrest said that

when he turned to see who hit him, he saw approximately twenty-

five males coming from the other end of the bowling area.     He

said that some of them were throwing punches and throwing chairs

at him and his friends.    Forrest testified that he also threw

chairs during the brawl.   He further testified that Iverson did

not hit him and that he did not see Iverson hit anyone.

     Lori Clark testified that Iverson was walking around near

her table cursing at everyone.    When Forrest stood up and was

hit, a fight began.   During the brawl she received a broken thumb

from a chair.    She also received a contusion to her head.   She,

too, threw a chair but testified that it did not hit anyone.       By

her account, forty to fifty people were involved in the brawl,




                                 - 2 -
including people who came from outside the bowling alley.

       Julia Weaver, an employee of the alley, testified that

sometime after Iverson went to the snack bar she saw ten to

fifteen black males run from one end of the alley to the other.

She then saw part of the group she had just observed, beating a

man.

       Brandon Smith, another employee, testified that he saw ten

people running toward the high numbered lanes.     This group picked

up chairs and began throwing them.      Smith testified that twenty-

five people were involved in the brawl.     People from the Poquoson

group and others were throwing chairs in the bowling alley.

Smith saw a member of the Poquoson group throw a pitcher of beer.

Smith also testified that Iverson threw a chair at him and

knocked his glasses off his face.    He also noticed Iverson throw

a chair at a girl's head, causing a large gash to appear.
       Barbara Steele was bowling and drinking beer on lane twenty-

seven with Christie Alligood and three others.     She testified

that the bowling alley was very crowded with lots of people

standing around.   She testified that she heard a "raucous," and

she then saw twenty to thirty black males jogging toward the

lanes near her.    During the brawl, she received a head injury and

other contusions over her body.   When she saw one of her friends

"on the ground with his face swollen up," her "immediate

reaction" was to walk up to Iverson, the first person that she

saw, and ask, "Why does this have to be racial; why can't you




                                - 3 -
stop this?"    She said Iverson in response pushed Alligood.

        Alligood testified that when she saw Steele talking to

Iverson, she went to join Steele and Iverson pushed her with his

hand.    She then moved and did not see Iverson again.

        In Iverson's defense, Dwayne Campbell testified that while

he and Iverson were waiting for food at the snack bar they were

near a group of bowlers who were drinking pitchers of beer.      He

stated that someone made a racial comment to them.     Then one of

the men who was drinking beer stood and cursed at Iverson.       He

said that when he tried to pull Iverson away, one of the men

swung a chair and hit him.    He said that a brawl then began.
        Iverson testified that when he went to the snack bar, he

heard loud talking and walked over.      A man started calling him

"nigger and stuff . . . little boy."     He said the man stood and

then swung the chair on which he had been sitting.     Iverson said

he was hit by the chair.    Iverson said one of his friends took

him out of the bowling alley.    Iverson testified that neither

Alligood nor Steele spoke to him.      Several other defense

witnesses corroborated portions of Iverson's testimony and said

that they saw Iverson outside while the fight was still ongoing.

                                  I.

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

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




                                 - 4 -
be guilty of a Class 3 felony."    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 Iverson 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 Iverson "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 someone other than

Iverson hit Forrest as Forrest and Iverson exchanged words.

Iverson's confrontation with Forrest was an incident that may

have precipitated a brawl but was separate from any mob activity.

No evidence proved that Iverson was a member of any mob that

later formed.

     "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




                                 - 5 -
(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 another person punch

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

may have formed.    "This evidence is equally, if not more

susceptible to the construction that [his conduct was] acts of an

individual[] involved in a fray, rather than acts of a mob

assembled for a criminal purpose."       Id. at 11, 396 S.E.2d at 685.

     Although the evidence would have been sufficient to prove

individual assaultive conduct, it was insufficient to prove

beyond a reasonable doubt that Iverson acted as 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

may be advised.
                                         Reversed and remanded.




                                 - 6 -
