                   COURT OF APPEALS OF VIRGINIA

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


SAMUEL WYNN
                                         MEMORANDUM OPINION * BY
v.   Record No. 1804-93-1              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.



      Samuel Wynn 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.   Wynn 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

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

                                I.

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

Wynn arrived at Circle Lanes Bowling Alley and began bowling with

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

Michael Simmons.   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.
     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."   Later during the brawl she was hit by a chair and

received a laceration on her head.      She was unable to identify




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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.
     Two employees of the bowling alley testified that after the

argument occurred between Forrest and Iverson they saw Wynn run

from the low numbered lanes to the high numbered lanes.   During

the brawl, one of them saw Wynn throw several chairs.

     Derrick Savage, who bowled with Wynn, was a witness for the

Commonwealth.   Savage testified that he was in the restroom when

he heard "someone screaming, fight" and heard people running.

When he came out and stood by the door, Wynn came over to leave.

As they were leaving a chair was thrown near them.    Wynn threw

the chair back and left the bowling alley with him.

     Wynn testified that he was removing his bowling shoes and

getting ready to leave when he heard someone say, "fight, fight,"

and saw people running toward the snack bar.   Wynn testified that

he "[w]alk[ed] real fast" in order to see what was happening.     He

also testified that he then was hit with a chair and said he

threw a chair back at the person who had just hit him with a

chair.   He testified that he then left the bowling alley.




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                                  II.

        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

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 Wynn 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 Wynn "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 Wynn was seen moving to

the area where Simmons punched Forrest as Forrest and Iverson




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exchanged words.    Although Wynn admits that he threw a chair, the

evidence proved that after the fight began many people threw

chairs, including people who the Commonwealth concedes were not

part of the mob.    Thus, the fact that Wynn threw chairs does not

prove beyond a reasonable doubt that he was acting as part of a

mob.

       "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 Wynn 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 Wynn acted as a part of a mob.

Therefore, the convictions are reversed and the case is remanded




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to the circuit court for such further action as the Commonwealth

may be advised.

                                      Reversed and remanded.




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