                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Lemons ∗
Argued at Alexandria, Virginia


SAEED SHEIKH
                                                    OPINION BY
v.   Record No. 1951-98-4                     JUDGE DONALD W. LEMONS
                                                   MARCH 21, 2000
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Michael P. McWeeny, Judge

          Matthew W. Greene (Kevin E. Smith; Smith &
          Greene, P.L.L.C, on brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Robert H. Anderson, III, Assistant Attorney
          General, on brief), for appellee.


     Saeed Sheikh appeals his conviction of malicious wounding

by mob action in violation of Code § 18.2-41, contending that

the Commonwealth's evidence was insufficient to prove he was a

member of a mob that killed David Albrecht.       We disagree and

affirm his conviction.

                            I.   BACKGROUND

     When reviewing a sufficiency of the evidence claim, we must

consider all of the evidence and reasonable inferences fairly

deducible therefrom in the light most favorable to the


     ∗
       Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
Commonwealth.    See Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975).   A conviction will be affirmed

unless it appears from the evidence that the lower court's

judgment is plainly wrong or without evidence to support it.

See Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711,

713 (1982).

     On February 26, 1998, John Metcalf, an eighteen-year-old

student at Pimmit Hills High School in Fairfax County, and a

friend beat Markie Bowen and Cham Choup at a convenience store.

The next day, Friday, February 27, 1998, Michael Choup, Cham's

brother, called appellant and his brother, Sadat Sheikh, and

told them about the fight and that "two white guys" were

responsible.    Appellant and the Choups were all members of the

TRG gang.   Appellant was "one of the head guys" in the gang.

Appellant and his brother then called several other gang members

to beat Metcalf and his friend.    The group assembled at the

Choups' house where they planned an assault on Metcalf and his

friend.   They left the Choups' home together in appellant's

brother's car and in a green Rodeo driven by Peter Hanvinched.

     The gang members drove to Pimmit Hills High School looking

for their intended victims.   They wore blue bandannas over their

faces and were armed with bats and sticks.   Once they arrived at

Pimmit Hills High School, Markie Bowen, one of the participants

in the previous day's fight with Metcalf, ran out and told the

gang members, "the guy's here, he's coming."   Appellant got out

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of his brother's car and into the back seat of the Rodeo behind

the driver, Hanvinched.   Michael Choup was riding in the front

passenger's seat and Markie Bowen got in next to appellant in

the back and behind Choup.   Appellant told Michael Choup that

when Metcalf came out, "We're going to bang him up."   Appellant

planned to "jump out and start whipping his ass with the bat

. . . ."

     Metcalf came out of the school and got into

seventeen-year-old David Albrecht's Monte Carlo.   Albrecht was a

friend from school who agreed to give Metcalf a ride home.

Metcalf had explained to Albrecht earlier that gang members

might be looking to retaliate for the prior day's incident.

When Metcalf saw the gang members in appellant's brother's car,

wearing the bandannas, he and Albrecht drove from the high

school to try and "lose them."    Only the Rodeo was able to keep

up with Albrecht's car.   During the gang's pursuit of Metcalf

and Albrecht, Michael Choup repeatedly said, "I'm going to kill

this mother f-----, I'm going to kill him" and that he was going

to "cap" Metcalf.   Appellant, in a later statement to Detective

Robert Murphy, stated that he understood from Choup's statements

that Choup had a "strap" or a gun.

     At about 12:30 p.m., fifteen minutes after the cars left

Pimmit Hills High School, Albrecht drove up to the back doors of

George C. Marshall High School in Fairfax County so Metcalf

could run into the back of the school.   Hanvinched pulled within

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five feet of the passenger side of the Monte Carlo.      Choup

pulled out a thirty-eight-inch pump rifle.    Hanvinched leaned

back so Choup could get a clear shot.    Choup fired at least

three times into the Monte Carlo.    Metcalf ducked down and was

unharmed, but one of the shots fatally struck Albrecht on the

right side of his head.    In his statement to the police,

appellant said he knew Albrecht had been shot and that he told

Choup, "You got your revenge now.    Let's get the f--- out of

here."

     On the evening of March 1, 1998, after listening to a taped

statement given by Michael Choup that "implicated him by name,"

appellant gave a statement to Detective Robert Murphy of the

Fairfax County Police Department describing his actions and

those of his fellow gang members that culminated in Albrecht's

killing.

                  II.   SUFFICIENCY OF THE EVIDENCE

     Sheikh does not dispute that a "mob" within the meaning of

Code § 18.2-38 had formed for the purpose of physically

assaulting Metcalf.     Additionally, Sheikh does not question the

application of the transferred intent doctrine.       Rather, Sheikh

maintains the evidence is insufficient to prove he was a member

of the mob that killed Albrecht because he did not share Choup's

intent to kill.

     Code § 18.2-41 states:     "Any and every person composing a

mob which shall maliciously or unlawfully shoot, stab, cut or

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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."   Code § 18.2-38 defines "mob" as "any

collection of people, assembled for the purpose and with the

intention of committing an assault or a battery upon any person

. . . ."   There is no requirement that the "mob" agree on the

manner or nature of such assault or battery.

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

(1990), we held that "[t]he statutory definition of a mob

requires that the act of assembling be done for a specific

purpose and with a specific intent--to commit an assault or a

battery without lawful authority."      Id. at 6, 396 S.E.2d at 682.

In Harrell, we decided that a mob had never, in fact, formed

where a group of about twenty lingering party guests congregated

outside a neighboring house.    See id. at 11, 396 S.E.2d at

684-85.    Thus, when one person committed a battery upon the

party's host and his neighbor, "[t]here [was] no chain of

circumstances establishing, . . . that after [the first victim]

was struck the assault [on the second victim] 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.   Accordingly,

we found the evidence insufficient to convict under a mob action

theory.

     The evidence here, however, proved that the purpose of

appellant's meeting with other gang members was to assault

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Metcalf.   There is no dispute as to the intentions of the group.

Appellant, in his statement to Detective Murphy, said, "we

talked out a plan saying we were going to go up there and jump

this guy, . . . .   We were going to jump them, you know, beat

the s--- out of them, f--- their faces up and s--- because they

f---ed my boy's face up.   Then we went up there."   Appellant

himself planned to "jump out and start whipping [Metcalf's] ass

with the bat . . . ."   The evidence proved beyond a reasonable

doubt that Sheikh intended to physically assault Metcalf and

joined a mob that shared the same intent.   Appellant knew that

Choup had a rifle and knew of Choup's repeated statements of

intent to kill or "cap" Metcalf.

     Finding the evidence sufficient to sustain the verdict, we

affirm appellant's conviction.

                                                         Affirmed.




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