Saeed Sheikh v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons ∗
Argued at Alexandria, Virginia
SAEED SHEIKH
OPINION BY
v. Record No. 1951-98-4 JUDGE DONALD W. LEMONS
MARCH 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Matthew W. Greene (Kevin E. Smith; Smith &
Greene, P.L.L.C, on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General;
Robert H. Anderson, III, Assistant Attorney
General, on brief), for appellee.
Saeed Sheikh appeals his conviction of malicious wounding
by mob action in violation of Code § 18.2-41, contending that
the Commonwealth's evidence was insufficient to prove he was a
member of a mob that killed David Albrecht. We disagree and
affirm his conviction.
I. BACKGROUND
When reviewing a sufficiency of the evidence claim, we must
consider all of the evidence and reasonable inferences fairly
deducible therefrom in the light most favorable to the
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
Commonwealth. See Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). A conviction will be affirmed
unless it appears from the evidence that the lower court's
judgment is plainly wrong or without evidence to support it.
See Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711,
713 (1982).
On February 26, 1998, John Metcalf, an eighteen-year-old
student at Pimmit Hills High School in Fairfax County, and a
friend beat Markie Bowen and Cham Choup at a convenience store.
The next day, Friday, February 27, 1998, Michael Choup, Cham's
brother, called appellant and his brother, Sadat Sheikh, and
told them about the fight and that "two white guys" were
responsible. Appellant and the Choups were all members of the
TRG gang. Appellant was "one of the head guys" in the gang.
Appellant and his brother then called several other gang members
to beat Metcalf and his friend. The group assembled at the
Choups' house where they planned an assault on Metcalf and his
friend. They left the Choups' home together in appellant's
brother's car and in a green Rodeo driven by Peter Hanvinched.
The gang members drove to Pimmit Hills High School looking
for their intended victims. They wore blue bandannas over their
faces and were armed with bats and sticks. Once they arrived at
Pimmit Hills High School, Markie Bowen, one of the participants
in the previous day's fight with Metcalf, ran out and told the
gang members, "the guy's here, he's coming." Appellant got out
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of his brother's car and into the back seat of the Rodeo behind
the driver, Hanvinched. Michael Choup was riding in the front
passenger's seat and Markie Bowen got in next to appellant in
the back and behind Choup. Appellant told Michael Choup that
when Metcalf came out, "We're going to bang him up." Appellant
planned to "jump out and start whipping his ass with the bat
. . . ."
Metcalf came out of the school and got into
seventeen-year-old David Albrecht's Monte Carlo. Albrecht was a
friend from school who agreed to give Metcalf a ride home.
Metcalf had explained to Albrecht earlier that gang members
might be looking to retaliate for the prior day's incident.
When Metcalf saw the gang members in appellant's brother's car,
wearing the bandannas, he and Albrecht drove from the high
school to try and "lose them." Only the Rodeo was able to keep
up with Albrecht's car. During the gang's pursuit of Metcalf
and Albrecht, Michael Choup repeatedly said, "I'm going to kill
this mother f-----, I'm going to kill him" and that he was going
to "cap" Metcalf. Appellant, in a later statement to Detective
Robert Murphy, stated that he understood from Choup's statements
that Choup had a "strap" or a gun.
At about 12:30 p.m., fifteen minutes after the cars left
Pimmit Hills High School, Albrecht drove up to the back doors of
George C. Marshall High School in Fairfax County so Metcalf
could run into the back of the school. Hanvinched pulled within
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five feet of the passenger side of the Monte Carlo. Choup
pulled out a thirty-eight-inch pump rifle. Hanvinched leaned
back so Choup could get a clear shot. Choup fired at least
three times into the Monte Carlo. Metcalf ducked down and was
unharmed, but one of the shots fatally struck Albrecht on the
right side of his head. In his statement to the police,
appellant said he knew Albrecht had been shot and that he told
Choup, "You got your revenge now. Let's get the f--- out of
here."
On the evening of March 1, 1998, after listening to a taped
statement given by Michael Choup that "implicated him by name,"
appellant gave a statement to Detective Robert Murphy of the
Fairfax County Police Department describing his actions and
those of his fellow gang members that culminated in Albrecht's
killing.
II. SUFFICIENCY OF THE EVIDENCE
Sheikh does not dispute that a "mob" within the meaning of
Code § 18.2-38 had formed for the purpose of physically
assaulting Metcalf. Additionally, Sheikh does not question the
application of the transferred intent doctrine. Rather, Sheikh
maintains the evidence is insufficient to prove he was a member
of the mob that killed Albrecht because he did not share Choup's
intent to kill.
Code § 18.2-41 states: "Any and every person composing a
mob which shall maliciously or unlawfully shoot, stab, cut or
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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." Code § 18.2-38 defines "mob" as "any
collection of people, assembled for the purpose and with the
intention of committing an assault or a battery upon any person
. . . ." There is no requirement that the "mob" agree on the
manner or nature of such assault or battery.
In Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680
(1990), we held that "[t]he 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 without lawful authority." Id. at 6, 396 S.E.2d at 682.
In Harrell, we decided that a mob had never, in fact, formed
where a group of about twenty lingering party guests congregated
outside a neighboring house. See id. at 11, 396 S.E.2d at
684-85. Thus, when one person committed a battery upon the
party's host and his neighbor, "[t]here [was] no chain of
circumstances establishing, . . . that after [the first victim]
was struck the assault [on the second victim] 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. Accordingly,
we found the evidence insufficient to convict under a mob action
theory.
The evidence here, however, proved that the purpose of
appellant's meeting with other gang members was to assault
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Metcalf. There is no dispute as to the intentions of the group.
Appellant, in his statement to Detective Murphy, said, "we
talked out a plan saying we were going to go up there and jump
this guy, . . . . We were going to jump them, you know, beat
the s--- out of them, f--- their faces up and s--- because they
f---ed my boy's face up. Then we went up there." Appellant
himself planned to "jump out and start whipping [Metcalf's] ass
with the bat . . . ." The evidence proved beyond a reasonable
doubt that Sheikh intended to physically assault Metcalf and
joined a mob that shared the same intent. Appellant knew that
Choup had a rifle and knew of Choup's repeated statements of
intent to kill or "cap" Metcalf.
Finding the evidence sufficient to sustain the verdict, we
affirm appellant's conviction.
Affirmed.
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