http://www.courts.state.va.us/opinions/opncavtx/1825931.txt
COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Norfolk, Virginia
ALLEN IVERSON
MEMORANDUM OPINION BY
v. Record No. 1825-93-1 JUDGE JAMES W. BENTON, JR.
JUNE 20, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Nelson T. Overton, Judge
Lisa P. O'Donnell; Thomas B. Shuttleworth
(Lawrence H. Woodward, Jr.; Shuttleworth,
Ruloff, Giordano & Kahle, P.C., on brief),
for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Allen Iverson was convicted in a bench trial for three
violations of Code 18.2-41 for being a member of a mob that
injured with the intent to maim Lori K. Clark, Barbara M. Steele,
and Steven W. Forrest. On this appeal, he contends that the
Commonwealth failed to prove that a mob, as statutorily defined,
had formed and, even if a mob had formed, that he was a member of
that mob. For the reasons that follow, we reverse the
convictions.
The evidence proved that at 11:30 p.m. on February 13, 1993,
Iverson arrived at Circle Lanes Bowling Alley and began bowling
with five of his high school friends. They bowled in lanes nine
and ten. The bowling alley was very busy and crowded that
evening.
At midnight, Iverson went to 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 two
lanes, including lane thirty. This group included Steven
Forrest, Lori Clark, and six 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.
Forrest testified that Iverson approached their table
cursing at them without cause. He testified that when he stood
up to tell Iverson that "we don't have a problem" someone other
than Iverson hit him on the back of the head. Forrest said that
when he turned to see who hit him, he saw approximately twenty-
five males coming from the other end of the bowling area. He
said that some of them were throwing punches and throwing chairs
at him and his friends. Forrest testified that he also threw
chairs during the brawl. He further testified that Iverson did
not hit him and that he did not see Iverson hit anyone.
Lori Clark testified that Iverson was walking around near
her table cursing at everyone. When Forrest stood up and was
hit, a fight began. During the brawl she received a broken thumb
from a chair. She also received a contusion to her head. She,
too, threw a chair but testified that it did not hit anyone. By
her account, forty to fifty people were involved in the brawl,
including people who came from outside the bowling alley.
Julia Weaver, an employee of the alley, testified that
sometime after Iverson went to the snack bar she saw ten to
fifteen black males run from one end of the alley to the other.
She then saw part of the group she had just observed, beating a
man.
Brandon Smith, another employee, testified that he saw ten
people running toward the high numbered lanes. This group picked
up chairs and began throwing them. Smith testified that twenty-
five people were involved in the brawl. People from the Poquoson
group and others were throwing chairs in the bowling alley.
Smith saw a member of the Poquoson group throw a pitcher of beer.
Smith also testified that Iverson threw a chair at him and
knocked his glasses off his face. He also noticed Iverson throw
a chair at a girl's head, causing a large gash to appear.
Barbara Steele was bowling and drinking beer on lane twenty-
seven with Christie Alligood and three others. She testified
that the bowling alley was very crowded with lots of people
standing around. She testified that she heard a "raucous," and
she then saw twenty to thirty black males jogging toward the
lanes near her. During the brawl, she received a head injury and
other contusions over her body. When she saw one of her friends
"on the ground with his face swollen up," her "immediate
reaction" was to walk up to Iverson, the first person that she
saw, and ask, "Why does this have to be racial; why can't you
stop this?" She said Iverson in response pushed Alligood.
Alligood testified that when she saw Steele talking to
Iverson, she went to join Steele and Iverson pushed her with his
hand. She then moved and did not see Iverson again.
In Iverson's defense, Dwayne Campbell testified that while
he and Iverson were waiting for food at the snack bar they were
near a group of bowlers who were drinking pitchers of beer. He
stated that someone made a racial comment to them. Then one of
the men who was drinking beer stood and cursed at Iverson. He
said that when he tried to pull Iverson away, one of the men
swung a chair and hit him. He said that a brawl then began.
Iverson testified that when he went to the snack bar, he
heard loud talking and walked over. A man started calling him
"****** and stuff . . . little boy." He said the man stood and
then swung the chair on which he had been sitting. Iverson said
he was hit by the chair. Iverson said one of his friends took
him out of the bowling alley. Iverson testified that neither
Alligood nor Steele spoke to him. Several other defense
witnesses corroborated portions of Iverson's testimony and said
that they saw Iverson outside while the fight was still ongoing.
I.
Code 18.2-41 provides that "[a]ny and every person
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." 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 Iverson 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 Iverson "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 someone other than
Iverson hit Forrest as Forrest and Iverson exchanged words.
Iverson's confrontation with Forrest was an incident that may
have precipitated a brawl but was separate from any mob activity.
No evidence proved that Iverson was a member of any mob that
later formed.
"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 another person punch
Forrest, no evidence proved that Iverson joined in any mob that
may have formed. "This evidence is equally, if not more
susceptible to the construction that [his conduct was] acts of an
individual[] involved in a fray, rather than acts of a mob
assembled for a criminal purpose." Id. at 11, 396 S.E.2d at 685.
Although the evidence would have been sufficient to prove
individual assaultive conduct, it was insufficient to prove
beyond a reasonable doubt that Iverson acted as 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
may be advised.
