Hamilton v. Com.

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.

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