PRESENT: Carrico, C.J., Hassell, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
COMMONWEALTH OF VIRGINIA OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 021014 January 10, 2003
JORGE MANUEL LEAL
FROM THE COURT OF APPEALS OF VIRGINIA
Defendant Jorge Manuel Leal was indicted in the Circuit
Court of the City of Newport News for maiming by mob and causing
bodily injury to one John Binns in violation of Code § 18.2-41.
The statute provides that any person "composing a mob which
shall maliciously or unlawfully . . . 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."
During a trial by jury, the circuit court refused an
instruction tendered by the defendant which would have permitted
the jury to find him guilty of assault or battery by mob in
violation of Code § 18.2-42. That statute provides that any
person "composing a mob which shall commit a simple assault or
battery shall be guilty of a Class 1 misdemeanor."
The jury found the defendant guilty as charged.
Subsequently, confirming the verdict, the circuit court
sentenced defendant to five years imprisonment.
Upon review, the Court of Appeals of Virginia reversed the
conviction and remanded the case for a new trial. Leal v.
Commonwealth, 37 Va. App. 525, 559 S.E.2d 874 (2002). The Court
of Appeals ruled that the circuit court erred in refusing the
foregoing instruction. We awarded the Commonwealth this appeal.
The sole question is whether the Court of Appeals erred in
ruling the circuit court incorrectly refused the instruction on
assault or battery by mob, a crime the Commonwealth agrees is a
lesser-included offense of maiming by mob.
The Commonwealth's evidence established that during the
afternoon of March 31, 1999, Binns and a friend, Teresa Evans,
were in the process of moving into a motel room in the city of
Newport News. In the motel parking lot, Evans was surrounded by
four men, one of whom was the defendant. One of the men yelled
"party time" as the group "circled" her, started "shoving" her
"back and forth," and turned her "around in circles."
Binns, who was inside the motel room, heard Evans scream.
He "ran outside" and saw Evans being "harassed" by the group,
"pushing" her "back and forth all around" for no apparent
reason. He then "ran . . . into the middle of" the melee,
"trying to get her out of it."
In the ensuing fight, Binns was struck in the head by a
piece of wood, a "two-by-four," and was held by his hair by one
of the assailants while defendant kicked him in the face. A
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witness observed members of the gang kicking Binns "in the ribs,
the head, the side of the arms, the feet, the legs, stomping on
him as he was already on the ground and unconscious."
As a result, Binns sustained "a broken nose and shattered
cheekbone and swelling and bruising" to the upper body. He bled
from his mouth and an ear for a "couple of days," and from his
nose for ten days.
Because the issue on appeal deals with the circuit court's
refusal of the lesser-included offense instruction on assault or
battery by mob, and even though the Commonwealth prevailed at
trial, we must view the evidence on this issue in the light most
favorable to the defendant, the proponent of the instruction.
Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221
(2002); Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733,
736 (2001).
The Court of Appeals aptly summarized defendant's
testimony, noting that defendant stated "that Binns, whom
neither [defendant] nor his acquaintances knew beforehand, was
injured after Binns aggressively approached [defendant], shoved
him and again charged him, grabbing him by the waist." Leal,
37 Va. App. at 533, 559 S.E.2d at 878. The Court of Appeals
further noted that defendant testified "he grabbed Binns' hair
in self-defense and the pair, intertwined, went around in
circles. As [defendant] tried to repel Binns, one of
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[defendant's] acquaintances witnessed the struggle and proceeded
to hit Binns, knocking Binns to the ground. When the
acquaintance and another proceeded to strike Binns while he was
on the ground, [defendant] said he intervened and stopped
further aggression." Id.
The law applicable here is settled. Jury instructions are
proper only when supported by the evidence, and "more than a
scintilla of evidence is necessary to support a lesser-included
offense instruction requested by the defendant." Commonwealth
v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998).
When the evidence in a prosecution warrants a conviction of
the crime charged, and there is no independent evidence
warranting a conviction for a lesser-included offense, an
instruction on the lesser offense should not be given. Guss v.
Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196, 197 (1976). In
other words, "we have rejected the concept that a jury
instruction on the lesser-included offense must always be
given." Vaughn, 263 Va. at 35, 557 S.E.2d at 222.
The Court of Appeals stated it agreed with defendant "that
there was more than a scintilla of evidence on the issue of lack
of malicious intent." 37 Va. App. at 533, 559 S.E.2d at 878.
The court reasoned that, from defendant's testimony, "the jury
could have found, if they believed his version of the events,
that [defendant] and his acquaintances acted only with the
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intent to do Binns bodily harm in order to deter his attack on
[defendant], and not with the specific, malicious intent 'to
maim, disable, disfigure or kill' him." Id. at 534, 559 S.E.2d
at 879.
Continuing, the Court of Appeals said defendant testified
"that the acts taken against Binns were not planned by him or
his acquaintances, but were done only after provocation, out of
a spontaneous intent to protect [defendant]. [Defendant's]
testimony leaves the group's intent open to question, the answer
to which was the province of the jury. With more than a
scintilla of evidence to support a finding only of intent to do
bodily harm, [defendant] was entitled to the instruction on the
lesser offense." Id. We do not agree.
In order to sustain a conviction of maiming by mob under
Code § 18.2-41, the evidence must establish that the accused was
a member of a group composing a mob; that the mob caused the
victim bodily injury; and that the mob acted with the malicious
intent "to maim, disable, disfigure or kill" the victim. 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. See Leal, 37 Va. at 531, 559 S.E.2d at 878. "The
requisite intent under Code § 18.2-41 to maliciously maim,
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disable, disfigure or kill is the only difference between the
two offenses." Id. at 532, 559 S.E.2d at 878.
Here, there is no dispute that the victim sustained bodily
injuries and that defendant was a member of a mob. Indeed, the
instruction tendered by defendant was on assault or battery by
mob, not merely simple assault or battery. Therefore, because
the evidence warranted a conviction of the crime charged, the
pertinent inquiry becomes whether there is more than a scintilla
of independent evidence to show that defendant was entitled to
an instruction on the lesser offense. There was not.
We hold, contrary to the Court of Appeals' ruling and the
defendant's argument, that neither defendant's testimony nor the
circumstances provide the necessary quantum of independent
evidence to show he did not intend to maim, disable, disfigure,
or kill Binns.
Defendant claimed he merely was acting as a peacemaker and
in self defense. Yet the gravity of the victim's injuries
inflicted by the mob, which are uncontroverted, belies any
finding that the mob, of which defendant was a member, did not
maliciously intend to maim the victim. Every person composing a
mob "becomes criminally culpable even though the member may not
have actively encouraged, aided, or countenanced the act."
Harrell v. Commonwealth, 11 Va. App. 1, 8, 396 S.E.2d 680, 683
(1990). The undisputed evidence of the victim's massive
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injuries is inconsistent with defendant's version of the facts
and his claim that he only intended to act as an arbiter during
the affray. See Vaughn, 263 Va. at 36, 557 S.E.2d at 223, a case
which is indistinguishable from the present case.
Finally, as noted, the Court of Appeals said the jury could
have found that the mob "acted only with the intent to do Binns
bodily harm in order to deter his attack on [defendant], and not
with the specific, malicious intent 'to maim, disable, disfigure
or kill' him." However, "[t]his conclusion is not based on
affirmative evidence, but on the jury's ability to reject
evidence that is uncontroverted." Vaughn, 263 Va. at 37, 557
S.E.2d at 223.
We repeatedly have ruled that "although the jury's ability
to reject evidence will support an acquittal, the ability to
reject evidence does not supply the affirmative evidence
necessary to support a jury instruction." Id. citing Donkor,
256 Va. at 445, 507 S.E.2d at 76; LeVasseur v. Commonwealth, 225
Va. 564, 590, 304 S.E.2d 644, 658 (1983); and Guss, 217 Va. at
15, 225 S.E.2d at 197.
Under the facts of this case, as the circuit court
correctly ruled, the defendant was either guilty of maiming by
mob or no offense at all. It follows that the Court of Appeals
erred in determining that an instruction on the lesser crime was
appropriate.
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Consequently, the judgment of the Court of Appeals will be
reversed and final judgment will be entered here reinstating the
circuit court's judgment of conviction.
Reversed and final judgment.
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