Samuel Wynn v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Senior Judge Hodges
Argued at Norfolk, Virginia
SAMUEL WYNN
MEMORANDUM OPINION * BY
v. Record No. 1804-93-1 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.
Samuel Wynn 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. Wynn 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
Wynn was a part of a mob, we reverse his convictions.
I.
The evidence proved that at 11:30 p.m. on February 13, 1993,
Wynn arrived at Circle Lanes Bowling Alley and began bowling with
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
five of his high school friends, including Allen Iverson and
Michael Simmons. 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
- 2 -
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.
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." Later during the brawl she was hit by a chair and
received a laceration on her head. She was unable to identify
- 3 -
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.
Two employees of the bowling alley testified that after the
argument occurred between Forrest and Iverson they saw Wynn run
from the low numbered lanes to the high numbered lanes. During
the brawl, one of them saw Wynn throw several chairs.
Derrick Savage, who bowled with Wynn, was a witness for the
Commonwealth. Savage testified that he was in the restroom when
he heard "someone screaming, fight" and heard people running.
When he came out and stood by the door, Wynn came over to leave.
As they were leaving a chair was thrown near them. Wynn threw
the chair back and left the bowling alley with him.
Wynn testified that he was removing his bowling shoes and
getting ready to leave when he heard someone say, "fight, fight,"
and saw people running toward the snack bar. Wynn testified that
he "[w]alk[ed] real fast" in order to see what was happening. He
also testified that he then was hit with a chair and said he
threw a chair back at the person who had just hit him with a
chair. He testified that he then left the bowling alley.
- 4 -
II.
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." 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 Wynn 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 Wynn "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 Wynn was seen moving to
the area where Simmons punched Forrest as Forrest and Iverson
- 5 -
exchanged words. Although Wynn admits that he threw a chair, the
evidence proved that after the fight began many people threw
chairs, including people who the Commonwealth concedes were not
part of the mob. Thus, the fact that Wynn threw chairs does not
prove beyond a reasonable doubt that he was acting as part of a
mob.
"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 Wynn 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 Wynn acted as a part of a mob.
Therefore, the convictions are reversed and the case is remanded
- 6 -
to the circuit court for such further action as the Commonwealth
may be advised.
Reversed and remanded.
- 7 -