PRESENT: All the Justices
KELIS ALLEN HAMILTON
OPINION BY
v. Record No. 090069 JUSTICE CYNTHIA D. KINSER
JANUARY 15, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Kelis Allen Hamilton was convicted by jury trial in the
Circuit Court of Augusta County of three counts of assault and
battery by a mob in violation of Code § 18.2-42 and one count
of participating in a criminal street gang in violation of
Code § 18.2-46.2. Because we conclude that the evidence was
sufficient to sustain these convictions, we will affirm the
judgment of the Court of Appeals of Virginia.
I. FACTS AND PROCEEDINGS 1
The convictions challenged on appeal arose out of a party
in August 2006 at Garrett Johnston's 110-acre farm located in
Augusta County. The assault and battery convictions involve
three separate victims: Zachary Small, Daniel Payne, and
Johnston. The conviction for participating in a criminal
street gang concerns a gang known as the "Nine Trey Bloods"
(the Bloods).
1
We will state the evidence in the light most favorable
to the Commonwealth, the prevailing party in the trial court,
and will accord the Commonwealth the benefit of all reasonable
inferences fairly drawn from the evidence. Murphy v.
Commonwealth, 264 Va. 568, 571, 570 S.E.2d 836, 837 (2002).
At trial, the Commonwealth called two police officers,
Mark Campbell and Christopher Hartless, both of whom qualified
as expert witnesses with regard to the Bloods. The experts
provided the following information about that gang.
The Bloods wear the color red, while a rival gang known
as the "Crips" wear the color blue. The location of the color
worn signifies the degree of respect shown to a particular
gang. For example, a color worn high on the body, as in a
hat, shows great respect. Blood members often wear red hats
and many of them wear Boston Red Sox hats because, although
black, the hats have the letter "B" in red on the front. In
addition, black is a neutral color that, when worn with red,
is "used . . . to show affiliation." It is a sign of
disrespect to wear blue in a Blood member's presence.
The term "Blood-[a]t" is a "Blood war cry" used to call
members of the gang to "converge" and "provide whatever . . .
assistance is required." The term "Dip Set" is a reference to
a "rap group" whose members are known to be in the Bloods.
Hartless opined that the use of those terms during an assault
would likely mean that the incident was "gang-involved, gang-
related."
The Bloods have several body marks or tattoos associated
with membership. One such mark is a "dog paw" or "Trey burn,"
which is a grouping of three circular marks, burned onto the
2
skin with a cigarette or some other circular object. Each
burn represents a rape, robbery, or murder, and a Blood member
has to commit those crimes before he can get the burns. To
burn a rival gang member in that manner would indicate
enormous disrespect.
Neither expert witness testified as to any prior
involvement by Hamilton with the Bloods. Hartless stated that
Hamilton did not have any tattoos and, to his knowledge, did
not wear any gang-related colors prior to the events at the
party. Campbell acknowledged that the number of Blood members
without tattoos would be "rather low" but that it would be
consistent with a member who had not performed any work for
the gang or who was trying to avoid detection by the police.
Hartless opined that Hamilton was not involved with the Bloods
prior to the party. However, Hartless did opine that a gang
assault involving "some people who had never been affiliated
with that gang before" could "potential[ly]" be a form of
"initiation for one or more of the individuals within that
group."
Approximately 400 people attended the party that lasted
from ten o'clock in the evening to three o'clock the following
morning. Numerous witnesses testified about consuming alcohol
at the party, some admitting that they were intoxicated.
Likewise, several witnesses stated that a number of small
3
fights erupted during the party in addition to the incidents
at issue in this case.
At some point in the evening, Johnston noticed a group of
individuals that he assumed were members of the Bloods because
they all were wearing red bandanas. According to Johnston,
the group was "chilling in one section of [a] tent" that
Johnston had erected for the party. Johnston approached the
individuals and inquired if they were "Bloods," to which they
responded, "Yes."
The defendant, Hamilton, admitted at trial that he
attended the party. He claimed that he wore a red and black
hat, a black and gold shirt, and blue jeans. Hamilton
conceded the hat could have been a Boston Red Sox hat.
Another party guest, Christopher R. McLaughlin, testified that
Hamilton was wearing both a red cap and a red shirt.
According to McLaughlin, Hamilton approached him and stated,
"You're a Blood and you don't even know it." McLaughlin
assumed Hamilton made that statement because McLaughlin was
wearing a red baseball cap and a red shirt. McLaughlin
responded that he was not "gang-related" and walked away.
According to Johnston, the Bloods were involved in a "big
fight" that "blew up" at approximately three o'clock in the
morning. Zachary Small, who was wearing a dark blue shirt,
knocked over a bottle, began to pick it up and, noticing that
4
it was empty, let it fall to the ground again. When Small
stood up, a "big guy" standing there hit Small in the face.
Believing his jaw was broken, Small stated, "Hold on
man. . . . It ain't like that." Small heard someone say, "You
made it like that" and then someone struck him from the side.
Small was battered several more times and eventually "knocked
out." Small told police that during the assault, he heard
someone say, "We ain't wearing red for nothing." After the
party, Small discovered that he had suffered cigarette burns
on his back. Detective Campbell opined that the burn marks on
Small's back could have been the start of a "Trey burn" or a
sign of retaliation for disrespect to the Bloods.
McLaughlin witnessed the assault on Small. McLaughlin
testified that there was "a scuffle, something about knocking
over a drink or something." As he began to walk the other
direction, McLaughlin turned and saw "12 kids over top of
. . . Zach" kicking and beating him. McLaughlin stated that
"[a]ll you could see was red" and that he heard someone
saying, "You don't think we're wearing red for nothing."
McLaughlin did not remember seeing Hamilton in the group of
people assaulting Small.
Donald Stouffer, however, did see Hamilton. Although
Stouffer did not witness the assault itself, he saw Hamilton
standing over Small while Small was lying on the ground.
5
According to Stouffer, Hamilton was doing something with his
hands around the middle of Small's back but was not rendering
assistance to Small. After seeing a picture of the cigarette
burns on Small's back, Stouffer assumed Hamilton was putting
out a cigarette on Small's back. Stouffer also heard "a big
guy," weighing around 400 pounds, yelling "We're not wearing
red for the hell of it."
Matthew Howdyshell witnessed the end of the assault on
Small. Howdyshell saw Small lying on the ground, trying to
get up, and then falling to the ground again. When Small fell
to the ground, somebody came up to him yelling "Dip Set" while
also kicking him. The man kicking Small was wearing a red
shirt.
A witness who testified on behalf of Hamilton, Whitney
Randolph, identified Marty Scott 2 as the person who initially
assaulted and battered Small. She stated that a fight broke
out on top of the hill when Small kicked over a bottle.
According to Randolph, Scott asked Small why he had done so
and when Small walked off, Scott hit him. Randolph further
stated that as Small was lying on the ground, "three or four
people jumped on him."
2
Campbell testified that Marty Scott was a second
lieutenant in the Bloods.
6
Hamilton testified on direct examination to seeing "a
group of guys all rushing a White male." According to
Hamilton, he assisted the host of the party in breaking up
that fight. Hamilton stated that he did not know the victim
of that particular assault, and it is unclear from his
testimony whether that incident was the assault on Small. On
cross-examination, however, Hamilton admitted that he
recognized Small as the victim of an attack but only after
Small was already lying on the ground. Hamilton described the
assault that he purportedly helped bring to an end as the
"first fight" and stated that the "next fight [was] the last
one, which was the big fight . . . on top of the hill." 3
Hamilton provided these details about the "big fight":
I noticed a – a group of guys just running up on the
hill. . . . And the next thing I know, it was like a
group of guys just all started arguing back and
forth, and I seen [sic] two White males get hit with
a tiki torch. And the next thing you know, it was
just like a big commotion, a fight just broke out.
And at that time, I seen [sic] [Jakari] Hart pull
out a nickel-plated pistol and started firing it in
the air.
Daniel Payne was one of the individuals struck with a
tiki torch. Payne heard what he thought were fireworks. He
proceeded up a hill to ask what was going on when someone
3
Randolph also indicated there was a second fight and
stated that "when the gun and all that got happening, all that
fighting started."
7
struck him on the side of his face with a tiki torch, which
broke. Payne then "went after" the man who hit him, but
"froze up" when another individual pointed a gun into his
chest and pulled the trigger. Payne heard the gun click but
it did not fire. Payne could not identify either of those
individuals and also did not remember whether he saw Hamilton
at the party. Hamilton, however, admitted seeing Scott snatch
the pistol out of Hart's hand and, according to Hamilton,
Scott then pointed the gun in the chest of one of the
individuals who was hit with the tiki torch.
Hart, who accompanied Hamilton to the party, said he
began firing his gun into the air while Hamilton was standing
next to him. Hart testified that he handed the gun to Scott,
and Hamilton tried to retrieve the gun from Scott, at Hart's
direction. Hart admitted previously stating that Hamilton
actually had the gun at some point. Scott was then tackled,
causing the gun to fly into the air.
Adam Switzer, who went to the party with Payne and
witnessed this incident, saw someone fire the gun in the air
numerous times prior to its being pointed at Payne. According
to Switzer, there were a "lot of people wearing red" at the
party, "everybody" was doing hand-signs "like a symbol," and
people were saying, "Blood-at." Switzer, however, did not
remember seeing Hamilton at the party.
8
Clement Miller also saw someone strike Payne with the
tiki torch. He likewise witnessed an individual hand the gun
to another person and say, "Kill that mother-f__ker." The
person who took the gun then pointed it into Payne's chest and
pulled the trigger. At that point, "it was a big mess"
according to Miller, and the person with the gun was tackled.
Johnston was the other individual who was hit with the
tiki torch. He testified that the party was going well until
about three o'clock in the morning when "a big fight blew up."
Johnston stated that this fight was "the one at the end of the
night before [the Bloods] left." Johnston believed something
happened to upset the group of Bloods. He heard people saying
"Blood-at" as if they were "trying to mimic a gun going off."
Johnston asked the group what was occurring because he "didn't
understand what had happened to . . . make it so extreme."
Scott then hit him in the head with a tiki torch. According
to Johnston, Scott had broken his hand earlier in the evening
and was surrounded by a group of "guys" wearing red bandanas.
Johnston did not hear any gunfire and did not recall seeing
Hamilton at the party.
Katherine Duncan also saw Scott wielding a stick and
heard him threatening people. Duncan testified that Scott was
in the midst of a group of people wearing red bandanas and red
t-shirts. According to Duncan, Hart was in the group with
9
Scott. Duncan testified that Scott struck two people with the
stick and "at one blow, the bamboo stick kind of shredded a
little bit." Duncan said that "[s]ome people had tried to go
after Marty, and that's when they connected with the stick."
Hamilton moved to strike the evidence both at the close
of the Commonwealth's evidence and at the conclusion of all
the evidence. The circuit court overruled the motions. The
jury found Hamilton guilty of all four charges, and the
circuit court sentenced Hamilton to a term of five years of
incarceration for the felony conviction for participating in a
criminal street gang and a total of 24 months of incarceration
for the three misdemeanor convictions for assault and battery
by a mob. In an unpublished opinion, the Court of Appeals of
Virginia upheld Hamilton's convictions, finding the evidence
sufficient to sustain the jury verdict. Hamilton v.
Commonwealth, Rec. No. 1591-07-3, slip op. at 10 (Nov. 4,
2008). On appeal to this Court, Hamilton again challenges the
sufficiency of the evidence to sustain his convictions.
II. ANALYSIS
When a defendant challenges on appeal the sufficiency of
the evidence to sustain his conviction, this Court "has a duty
to examine all the evidence that tends to support the
conviction." Bolden v. Commonwealth, 275 Va. 144, 147, 654
S.E.2d 584, 586 (2008). Upon reviewing the evidence in the
10
light most favorable to the Commonwealth as the prevailing
party in the trial court, we must uphold the conviction unless
it is plainly wrong or without evidence to support it. Code
§ 8.01-680; Tarpley v. Commonwealth, 261 Va. 251, 256, 542
S.E.2d 761, 763 (2001). We will first address the three
convictions for assault and battery by a mob and then turn to
the conviction for participation in a criminal street gang.
A. Assault and Battery by Mob
Each of Hamilton's convictions for assault and battery by
a mob was pursuant to Code § 18.2-42. That statute states:
"Any and every person composing a mob which shall commit a
simple assault or battery shall be guilty of a Class 1
misdemeanor." Code § 18.2-42. The term "mob," in relevant
part, 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." Code § 18.2-38. "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." Commonwealth v. Leal, 265 Va. 142, 146, 574 S.E.2d
285, 288 (2003).
"The 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." Harrell
11
v. Commonwealth, 11 Va. App. 1, 6, 396 S.E.2d 680, 682 (1990).
The act of assembling with that specific purpose and intent
distinguishes mob behavior from merely individual behavior
while part of a group. Id. at 7, 396 S.E.2d at 683. However,
the group need not have originally assembled with such purpose
and intent in mind. Rather, "[i]t is possible that
individuals who are lawfully assembled may become members of a
'mob' without great deliberation." Id. Whether a group of
individuals becomes a "mob" depends upon the circumstances and
"no particular words or express agreements are required to
effect a change in a group's purpose or intentions." Id. at
7-8, 396 S.E.2d at 683. Once an assembled group becomes a mob
under § 18.2-38, "every person composing the mob becomes
criminally culpable even though the member may not have
actively encouraged, aided, or countenanced the act" of
assault or battery. Id. at 8, 396 S.E.2d at 683. Thus,
"criminal accountability flows from being a member of the mob,
regardless of whether the member aids and abets in the assault
and battery." Id.
In challenging his three convictions under Code § 18.2-
42, Hamilton first contends that the Commonwealth failed to
prove beyond a reasonable doubt that he was a participant in
the mob that attacked Small. With regard to the Payne and
Johnston attacks, Hamilton argues the evidence was
12
insufficient to establish that either Payne or Johnston was
attacked by a mob, and even if they were, that he was a member
of such mob. We will address the convictions in that order.
Hamilton does not dispute, and indeed the evidence
overwhelmingly shows, that Small was assaulted by a mob. That
mob was composed of Blood members. Small recounted getting
hit by several individuals and remembered hearing someone say,
"We ain't wearing red for nothing." One witness estimated
that approximately 12 people were kicking and beating Small
and testified that "[a]ll you could see was red." During the
attack, several witnesses heard people yelling, "We're not
wearing red for the hell of it." Another witness heard
someone wearing a red shirt yell "Dip Set" while kicking
Small. Small was rendered unconscious and later became aware
that someone had burned his back with a cigarette in the shape
of a "Trey burn." Such a burn, according to the
Commonwealth's expert, is a sign of retaliation for
disrespecting the Bloods.
Hamilton admitted being in the proximity of the attack on
Small and recognizing Small as the victim, but he denied any
involvement in the attack. Stouffer, however, recalled seeing
Hamilton standing over Small as Small was lying on the ground.
Hamilton, Stouffer stated, had his hands near Small's back and
was doing something other than rendering assistance to Small.
13
In light of the burns Small received on his back, the jury
could reasonably conclude that Hamilton placed those burns
there and was thus a member of the mob that assaulted and
battered Small.
Hamilton, however, points to the testimony of McLaughlin
and Howdyshell, both of whom did not remember seeing Hamilton
in the group of people attacking Small. Hamilton also argues
that, based on Stouffer's testimony, it was "equally likely"
that he was assisting Small as opposed to placing burns on
Small's back. These assertions merely highlight the
witnesses' different recollections of the events at the party
and the credibility determinations the jury therefore had to
make. "The fact finder, who has the opportunity to see and
hear the witnesses, has the sole responsibility to determine
their credibility, the weight to be given their testimony, and
the inferences to be drawn from proven facts." Commonwealth
v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). On
appellate review, we do not substitute our judgment for that
of the fact finder. Cable v. Commonwealth, 243 Va. 236, 239,
415 S.E.2d 218, 220 (1992). We conclude the evidence was
sufficient to sustain Hamilton's conviction for the assault
and battery of Small by a mob; the jury's determination that
Hamilton was part of the mob that attacked Small was not
14
plainly wrong or without evidence to support it. See Code
§ 8.01-680.
With regard to the Payne and Johnston attacks, Hamilton
first asserts there was insufficient evidence to prove that
either Payne or Johnston was assaulted by a mob. He argues
that the particular person who attacked Payne and Johnston did
so as "[o]ne belligerent individual," Harrell, 11 Va. App. at
11, 396 S.E.2d at 685, and that there was no "collection of
people, assembled for the purpose and with the intention of
committing an assault or battery" upon either victim, Code
§ 18.2-38. We do not agree.
Payne was hit in the head with a tiki torch when he
approached a group of people, inquiring about "[w]hat sounded
like fireworks." When Payne "went after" the person who
struck him, someone else pointed a gun into his chest and
pulled the trigger. According to Switzer, there were "a lot
of people wearing red," "everybody" was doing hand-signs "like
a symbol," and people were saying "Blood-at." In addition,
Switzer saw one person firing the gun before a different
individual then pointed it at Payne's chest. Miller, in
addition to seeing someone strike Payne with the tiki torch,
witnessed someone hand a gun to another individual while
saying, "Kill that mother-f__ker."
15
The presence of Blood members and their use of hand-signs
and the "Blood war cry," which is specifically used to call
other Bloods to "provide whatever . . . assistance is
required," all demonstrate that the Blood members assembled
for the purpose and with the intent to assault and batter
Payne. Even if the Blood members were lawfully assembled
without the intent to commit an assault prior to Payne's entry
onto the scene, the use of "Blood-at" and the instruction to
"[k]ill that mother-f__ker" show that the group transformed
into a "mob" under Code § 18.2-38. Therefore, we conclude the
jury's finding that a mob assaulted and battered Payne was not
plainly wrong or without evidence to support it. See Code
§ 8.01-680.
We reach the same conclusion with regard to the attack on
Johnston. He approached a group of Bloods who had become so
upset about some happening that Johnston characterized the
response as "extreme." As he approached the group, Johnston
heard people saying "Blood-at" as if they were imitating a
"gun going off." Hartless confirmed that the Bloods say
"Blood-at" or "Blat" in a way to mimic gunfire. Just as in
the Payne attack, people shouted the "Blood war cry" to call
their fellow Bloods to provide assistance. Scott, a second
lieutenant in the Bloods, then hit Johnston in the head with a
tiki torch. According to Johnston, Scott was surrounded by a
16
group of "guys" wearing red bandanas. Duncan also testified
that there was a group of individuals around Scott who were
wearing red bandanas and red t-shirts and that Scott was
threatening people as though he wanted to fight them. Duncan
also stated that Scott hit both Payne and Johnston, and
Hamilton's own testimony establishes that the two attacks were
not isolated incidents. The evidence established that a
"collection of people" assembled with the purpose and intent
to commit assault or battery and was thus sufficient to prove
that Johnston, like Payne, was assaulted and battered by a
mob. Code § 18.2-38.
Hamilton contends, however, that even if a mob did
assault and batter Payne and Johnston, the Commonwealth failed
to prove that he was part of any such mob. Hamilton argues
that, because no one testified as to his presence when either
Payne or Johnston were attacked, the jury had no basis upon
which to conclude that he was a member of any mob that
attacked either victim. Hamilton further contends that he
could be convicted of these two assaults only if the evidence
proved both attacks occurred at the same time and the evidence
does not support such a conclusion. We disagree with
Hamilton's arguments and conclude that there was sufficient
evidence showing that Hamilton was a member of the mob that
assaulted both Payne and Johnston.
17
Hamilton's testimony established that the attacks on
Payne and Johnston occurred close in time and were committed
by the same mob. He described a "first fight" and the "next
fight" as "the big fight . . . on top of the hill." 4 Hamilton
testified that, in the latter fight, he saw two individuals
get hit with the tiki torch and at the same time witnessed
Hart "pull out a nickel-plated pistol" and fire it into the
air. Hart, who went to the party with Hamilton, said Hamilton
was standing next to him when he was firing the gun into the
air and that Hamilton tried to get the gun from Scott.
Hamilton himself testified that Scott took the gun from Hart,
"had some words" with "one of the guys who got hit with the
tiki torch," and then put "a gun to [one of] the victim[s']
chest[s]." Both Hart and Hamilton then saw the gun fly into
the air when Scott was tackled.
Likewise, other witnesses confirmed that the same mob
attacked Payne and Johnston and did so at about the same time.
Duncan testified that Scott was seeking to fight people and
that he "connected with two people," i.e., battered them, by
using the tiki torch. Johnston said "a big fight blew up"
around three o'clock in the morning and he was responding to
this "big fight" when he was struck with the tiki torch.
4
Hamilton conceded at oral argument before this Court
that the attack on Small occurred first.
18
Randolph stated that the "first [fight]" was when Marty
assaulted Small. In response to a question about a "later
fight," she described it as "when the gun and all that got
happening, all that fighting started."
Witnesses recalled seeing a group of Bloods surrounding
Scott when he used the tiki torch to strike Payne and
Johnston. In describing the Payne attack, Switzer stated there
were "a lot of people wearing red" saying "Blood-at," and
doing hand-signs "like a symbol." Johnston also heard people
saying "Blood-at" when Scott struck him with the tiki torch.
Both Duncan and Johnston described the individuals surrounding
Scott as wearing red bandanas.
Finally, evidence showed Hamilton's association with the
Bloods at the party. He admitted that he wore a red and black
hat that was possibly a Boston Red Sox hat. Hamilton also
stated to McLaughlin, "You're a Blood and you don't even know
it." Hamilton and Hart came to the party together, Hamilton
was standing next to Hart when Hart was firing the gun that
was eventually pointed at Payne, and Duncan placed Hart in the
group surrounding Scott.
Based on this evidence, we conclude that Hamilton was a
"person composing" the mob that assembled for the purpose and
with the intent to assault or batter Payne and Johnston. Code
§ 18.2-42. "Compose" means to "form the substance of:
19
constitute." Webster'S Third New International Dictionary 466
(1993). As a part of the mob that attacked both victims,
Hamilton is "criminally culpable" even though he may not have
"actively encouraged, aided, or countenanced" the assaults.
Harrell, 11 Va. App. at 8, 396 S.E.2d at 683.
In summary, we find sufficient evidence to sustain
Hamilton's convictions for the mob assaults of Small, Payne,
and Johnston.
B. Participation in a Criminal Street Gang
Finally, Hamilton contends that the Commonwealth failed
to prove beyond a reasonable doubt that he participated in a
criminal street gang in violation of Code § 18.2-46.2.
Hamilton maintains there was no evidence that he was an active
participant or member of the Bloods, as required under the
statute.
Code section 18.2-46.2(A) states in part:
Any person who actively participates in or is a
member of a criminal street gang and who knowingly
and willfully participates in any predicate criminal
act committed for the benefit of, at the direction
of, or in association with any criminal street gang
shall be guilty of a Class 5 felony.
The offense of participating in a criminal street gang
contains three elements that the Commonwealth must prove to
sustain a conviction under the statute. First, a person must
actively participate in or be a member of a criminal street
20
gang. Second, the person must knowingly and willfully
participate in a predicate criminal act. Third, the act must
be committed for the benefit of, at the direction of, or in
association with the gang. The term "[p]redicate criminal
act" is defined as, among other things, "any violation of
§ 18.2-42", assault or battery by a mob. Code §§ 18.2-46.1.
Hamilton contests only the sufficiency of the evidence
with respect to the first element: being a member or active
participant in a criminal street gang. 5 According to Hamilton,
proof of membership or participation in a gang must be
distinct from proof of the commission of a predicate criminal
act for the benefit of the gang. Otherwise, according to
Hamilton, one of the elements would be superfluous. Hamilton
thus argues there must be some evidence that he participated
5
Hamilton does not dispute that the gang known as the
Nine Trey Bloods is a "criminal street gang" under § 18.2-
46.1. The term "[c]riminal street gang" is defined as:
any ongoing organization, association, or group of
three or more persons, whether formal or informal,
(i) which has as one of its primary objectives or
activities the commission of one or more criminal
activities; (ii) which has an identifiable name or
identifying sign or symbol; and (iii) whose members
individually or collectively have engaged in the
commission of, attempt to commit, conspiracy to
commit, or solicitation of two or more predicate
criminal acts, at least one of which is an act of
violence, provided such acts were not part of a
common act or transaction.
Code § 18.2-46.1.
21
in the Bloods other than evidence that he committed one of the
assaults. Such evidence is not present in this case, Hamilton
argues, because the Commonwealth's gang expert, Hartless,
testified that Hamilton was not involved with the Bloods
before the party. Hamilton suggests that the only evidence
supporting his conviction under this statute is his statement
to McLaughlin that McLaughlin was "a Blood and [didn't] even
know it." That statement, Hamilton asserts, is insufficient
to establish his membership or active participation in the
Bloods.
We conclude there was sufficient evidence, independent of
the evidence showing Hamilton's criminal culpability for the
attacks on Small, Payne, and Johnston, to establish that
Hamilton actively participated in the Bloods at the party.
The General Assembly, by writing the statute in the
disjunctive, clearly contemplated either membership or
participation as sufficient for a conviction under the
statute. Hamilton admitted that he came to the party wearing
a black and red hat. However, McLaughlin testified that
Hamilton was dressed in a red hat and a red shirt. Further,
Hamilton approached McLaughlin, also dressed in red, and told
him: "You're a Blood and you don't even know it." In
addition, Hamilton arrived at the party and was frequently
seen with Hart, who witnesses established as one of the
22
individuals wearing red and protecting Scott. Based on these
facts, the jury's determination that Hamilton was an active
participant in the Bloods was not plainly wrong or without
evidence to support it. See Code § 8.01-680.
Furthermore, Hamilton's participation in the Small
assault, which he concedes occurred first, constituted active
participation in the Bloods, while his role in the mob that
attacked Payne and Johnston served as the predicate criminal
acts committed for the benefit of the Bloods. Thus, even
under Hamilton's theory, there was distinct evidence
establishing both Hamilton's active participation in the
Bloods and his commission of a predicate criminal act for the
benefit of the Bloods.
III. CONCLUSION
For these reasons, we hold that the evidence was
sufficient to sustain Hamilton's three convictions for assault
and battery by a mob in violation of Code § 18.2-42 and his
conviction for participating in a criminal street gang in
violation of Code § 18.2-46.2. Thus, we will affirm the
judgment of the Court of Appeals.
Affirmed.
23