COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia
MICHAEL SIMMONS
MEMORANDUM OPINION * BY
v. Record No. 1805-93-1 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.
Michael Simmons 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. Simmons 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
Simmons was a part of a mob, we reverse his convictions.
I.
The evidence proved that at 11:30 p.m. on February 13, 1993,
Simmons arrived at Circle Lanes Bowling Alley and began bowling
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
with five of his high school friends, including Allen Iverson and
Samuel Wynn. 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. He testified that Simmons hit him with a chair.
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." She also testified that she saw Simmons nearby.
She did not see Simmons do anything. Later she was hit by a
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chair and received a laceration on her head. She was unable to
identify 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.
Simmons testified in his defense that he and his friends
arrived at 10 p.m. Around midnight, Iverson went to get food.
As Simmons was bowling, he saw Iverson and Forrest "gesturing
back and forth." Although he could not hear them, he surmised
"[t]hat something might break out if somebody didn't separate
them." He testified that he ran to "get Iverson out of there."
He further testified that as he got close to them he saw Forrest
swing a chair at Iverson. Simmons testified that Forrest then
swung a chair at him. He blocked the chair and punched Forrest.
He testified that he then moved away but remembered that he had
bowling shoes on his feet. Simmons said that he ran to return
the bowling shoes. He testified that after he got his shoes, he
saw Forrest again and threw a chair which hit Forrest. He said
that he then left the bowling alley.
II.
Code § 18.2-41 provides that "[a]ny and every person
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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 Simmons 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 Simmons "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 Simmons punched Forrest
as Forrest and Iverson exchanged words. Although Simmons
contends that Forrest hit him first with a chair, that testimony
is disputed. Even if Simmons was at fault in the confrontation,
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no evidence establishes that this confrontation was part of any
mob action.
"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 Simmons joined in any mob that
may have formed. At best, the Commonwealth proved that Simmons
hit Forrest and threw more than one chair. "There is no chain of
circumstances establishing, 'to the exclusion of any other
rational hypothesis and to a moral certainty,' that . . .
[Simmons' conduct] 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 (citation omitted).
Although the evidence would have been sufficient to prove
individual assaultive conduct, it was insufficient to prove
beyond a reasonable doubt that Simmons acted as a 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
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may be advised.
Reversed and remanded.
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