                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia


KEITH JONES
                                            MEMORANDUM OPINION * BY
v.   Record No. 2922-99-1          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               DECEMBER 28, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF SOUTHHAMPTON COUNTY
                    Rodham T. Delk, Jr., Judge

          Archer L. Jones, II (Jones & Jones, P.C.,
          on brief), for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     Keith Jones (appellant) was convicted in a jury trial of

maliciously causing bodily injury by mob action in violation of

Code § 18.2-41.   On appeal, he contends (1) the trial court

improperly admitted hearsay evidence and (2) the evidence was

insufficient to prove his guilt.    We disagree and affirm his

conviction.

                            I.   Background

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to that evidence all


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
reasonable inferences fairly deducible therefrom.      See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed the evidence established that on September 5, 1998,

Neil Link (Link) and Steven Lovett (Lovett), were confined in

the Deerfield Correctional Center.      They were approached by

another inmate, Fitzgerald, who asked them to smuggle drugs into

the prison.    Both Link and Lovett rejected Fitzgerald's request.

     On September 7, 1998, Link and Lovett were approached by

another inmate, Gholson, who said they owed him money as a

result of their deal with Fitzgerald.     Lovett and Link told

Gholson that there was no deal with Fitzgerald.     During this

encounter with Gholson, a group of inmates, including appellant,

encircled Link and Lovett.   Although nothing physical happened,

Link and Lovett were approached in a threatening manner and "it

felt like something was going to take place."

     The next evening, the same group of people, including

appellant, tackled Lovett and started beating him.     Link was

also attacked by some members of the group.     During the attacks,

some of the inmates switched back and forth between assaulting

Link and Lovett.   There was no evidence that appellant actually

struck Link.   However, appellant was present during the attacks,

appeared to be stomping someone on the floor, was identified as

directing some of the attack, and stood over Link during part of

the attack.



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                            II.    Hearsay

     Appellant first contends that the trial court improperly

allowed two hearsay statements into evidence over his objection.

The first statement concerned a conversation with inmate

Fitzgerald ("Fitzgerald's statement").       Over appellant's

objection the trial court allowed Link to testify that

Fitzgerald "asked Mr. Lovett if he would be willing to smuggle

some drugs into the institute in the visiting room.      Mr. Lovett

told him no, he wouldn't.   And he asked me the same question."

Appellant argues the trial court erred in ruling that this

statement was not offered for the truth of the matter and

therefore improperly admitted the statement.      Fitzgerald's

statement prejudiced appellant because it established a "mob"

motive.

     The second statement related to a conversation with Gholson

("Gholson's statement").    Gholson's statement was admitted into

evidence over appellant's objection during Lovett's testimony.

Lovett testified:

          Well I told him I didn't owe him some money.
          Basically the reason that he was stating
          that I owed him some money was because
          Fitzgerald on the 5th, had come to me asking
          me to bring him some drugs. Somehow he went
          to [Gholson] and told [Gholson] that the
          deal was made already. I told [Gholson], I
          said, I didn't make no deal. I don't owe no
          money and that was the end of it and I
          walked away from him.




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        A trial court has broad discretion in admitting evidence,

and its ruling will not be disturbed on appeal, absent an abuse

of discretion.     Brown v. Commonwealth, 21 Va. App. 552, 555, 466

S.E.2d 116, 117 (1996).     Hearsay evidence is "'testimony in

court . . . of a statement made out of court, the statement

being offered as an assertion to show the truth of matters

asserted therein, and thus resting for its value upon the

credibility of the out-of-court asserter.'"     Jenkins v.

Commonwealth, 254 Va. 333, 338, 492 S.E.2d 131, 134 (1997)

(quoting Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d

779, 781 (1977)).    Assuming that both statements were offered

for the truth, we find that appellant waived any objection to

them.

                     A.   "Fitzgerald's statement"

        "[W]here an accused unsuccessfully objects to evidence

which he considers improper and then on his own behalf

introduces evidence of the same character, he thereby waives his

objection, and we cannot reverse the alleged error."     Saunders

v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970);

accord Hubbard v. Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875,

879 (1992).    A party cannot avail itself of an objection to

evidence if the party has, at some other time during the trial,

"voluntarily elicited the same evidence, or has permitted it to

be brought out by his adversary without objection."     Burns v.

Board of Supervisors of Stafford County, 227 Va. 354, 363, 315

                                 - 4 -
S.E.2d 856, 862 (1984) (quoting Whitten v. McClelland, 137 Va.

726, 741, 120 S.E. 146, 150 (1923)).

        In the instant case, appellant initially objected to Link's

testimony regarding "Fitzgerald's statement."       Appellant then

cross-examined Link about the statement and other possible

motives for the individuals who attacked Link.      Lovett testified

to the same statements made by Fitzgerald without objection.

Appellant had a duty to object in a timely manner.      Lovett's

testimony without objection amounts to a waiver by appellant of

his hearsay objection.      Id.   Nor was appellant's failure to

object saved by his prior objection to Link's testimony.      His

prior objection cannot be interpreted as a continuing objection

to this testimony.    Thus, appellant's failure to object when

Lovett testified waived any objection to the trial court's

admission of "Fitzgerald's statement."      Accordingly, the trial

court did not err in allowing testimony regarding Fitzgerald's

conversations with Link and Lovett.

                       B.   "Gholson's statement"

        Appellant cross-examined Link regarding the motivation of

some of the attackers.      Link testified that Green, one of the

inmates who attacked Link, had made sexual advances towards

Link.    Link turned down these advances and during the attack

Green made mention of the failed sexual advances as the reason

for the attack.    Appellant elicited this testimony to prove that

a mob did not exist, as the Commonwealth alleged, because there

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was no single group motive for the attack on Link.   "Having

introduced evidence of the same character, appellant is

confronted by a substantive rule of law which renders

irreversible the action of the trial court in permitting the

Commonwealth to introduce evidence of the victim's [or

defendant's] state of mind."   Strohecker v. Commonwealth, 23 Va.

App. 242, 255, 475 S.E.2d 844, 851 (1996).

     Having introduced evidence of an individual motive for the

attack on Link, the Commonwealth was entitled to offer evidence

of a group motive behind the attack to disprove appellant's

theory that no mob existed because of individual motivations in

attacking Link.   By establishing that Gholson approached Link

and Lovett with a group of inmates in a threatening manner and

alleged that Lovett owed him money, the Commonwealth was using

the statement to establish the state of mind of Gholson and the

group of inmates in the attack.   Therefore, Gholson's statement

was offered by the Commonwealth to establish that a drug deal,

involving a group of inmates, was the underlying motivation for

their attack on Link, not a failed sexual advance by a single

inmate.   Thus, the evidence was admissible to establish the

state of mind of the group of inmates.




                               - 6 -
                   III. Sufficiency of Evidence

     Lastly, appellant contends that the evidence was

insufficient to support a finding of guilt. 1    Code § 18.2-38

defines a "mob" as "any 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."     "Intent may,

and most often must, be proven by circumstantial evidence and

the reasonable inferences to be drawn from proven facts are

within the province of the trier of fact."      Fleming v.

Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991);

accord Campbell v. Commonwealth, 12 Va. App. 476, 483-84, 405

S.E.2d 1, 4 (1991).   The mob need not have a common motivation

or underlying reason for the assault, they "need only to

collectively band together with the common purpose and intention

of committing an assault and battery upon a person."         Harrell v.

Commonwealth, 11 Va. App. 1, 7, 396 S.E.2d 680, 683 (1990).

     Although not every act of assault by a group of people

constitutes a mob assault, no particular words or express

agreements are required for a mob to exist.      See id. at 7-8, 396

S.E.2d at 683.   Nor is it a defense for appellant that he did

not actually strike the victim.   See id. at 8, 396 S.E.2d at


     1
       The Commonwealth argues that appellant waived this issue
by failing to renew his motion to strike the evidence at the end
of all the evidence. We disagree as appellant preserved the
issue in his motion to set aside the verdict made at his
sentencing hearing.


                               - 7 -
683.   If appellant was a part of the "mob" which attacked Link,

then appellant is criminally culpable for all the acts of the

"mob" even though he "may not have actively encouraged, aided,

or countenanced the act."    Id.    "[C]riminal accountability flows

from being a member of the mob, regardless of whether the member

aids and abets in the assault and battery."      Id.

       The evidence established that on September 7, 1998, a group

of inmates described as a "click," including appellant,

approached and encircled Lovett.      This encounter was "getting to

a physical manner" and some members of the group "approached Mr.

Lovett and [Link] in a threatening manner."     The tone of this

encounter was "very angry" and "plotful"; it "felt like

something was going to take place," but it didn't.

       The following evening, the same group of inmates, including

appellant, approached Lovett and Link again.     Some of the group

tackled Lovett and started assaulting him.     Within seconds

another member of the group struck Link, and other members

joined in the assault on Link.      Some of the members of this

group switched back and forth between assaulting Link and

assaulting Lovett.   Although no evidence proved that appellant

actually struck Link, Link saw appellant standing over him

during the fray.   The evidence was sufficient to prove the group

attacking the victims was a "mob," that appellant was a part of




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the group, and thus culpable for the actions taken by the "mob."

Accordingly, we affirm appellant's conviction.

                                                  Affirmed.




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