COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Senior Judge Overton Argued at Richmond, Virginia

RICHARD RULEMAN HUGHES, JR., SHANNON WAYNE HUGHES AND SHAWN WILLIAM HUGHES OPINION BY v. Record No. 0372-03-3 JUDGE ROBERT P. FRANK JULY 6, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ROCKINGHAM COUNTY John J. McGrath, Jr., Judge David B. Hargett (W. Todd Wats on; Hargett & Wats on, on brief), for appellant. Deana A. Malek, Assistant Atto rney General (Jerry W Kilgore, Attorney General, on brief), for appellee.

Richard Ruleman Hughes, Jr., Shawn William Hughes, and Shannon Wayne Hughes (collectively “appellants”) were each convicted in a jury trial of three counts of malicious wounding by a mob, in violation of Code § 18.2-41, and one count of assault and battery by a mob, in violation of Code § 18.2-42. On appeal , appellants contend (1) the evidence was insufficient to prove they constituted a mob; (2) the trial court erred in not giving a self-defense instruction. 1 For the reasons stated, we affirm the convictions.
BACKGROUND On June 30, 2002, Arthur Leonard hosted a party at his home to celebrate a friend’s birthday. Appellants, who are br others, and several of their frie nds heard about the party and

1 Appellants proffered two self-d efense instructions, one with fault and one without fault. On appeal, they treat these instructions as one.- 2 - decided to go “party crashing.” While talking pr ior to leaving for the party, one of the friends, Christopher Gittens, noticed Shannon had a 2-1/2 inch knife “folded” in his hand. When Gittens asked why he had the knife, Shannon replied, “[Y] ou never know when you might need it . . . .” Appellants drove to the part y in a red Honda Civic. At approximately 1:30 a.m., Leonard attempte d to bring the party to an end. Leonard kept repeating himself because “nobody really pa id attention and some of them got a little argumentative.” A group of people, including ap pellants, came to the front door. Leonard and Ryan Kernutt told them that the party was over. Richard “got in” Leonard’s face and said, “[ Y]ou don’t know me . . . . I’m a killer, I’m a killer, you don’t do this to me.” Richard then pulled out a black switc hblade knife. Shawn was standing with Richard and looked angry. Richard wa s told that no one wanted a fight; they were just trying to end the party. Ri chard and Shawn turned and walked away. Leonard and Kernutt went back inside the house. Je ffrey Zirkle, another person at th e party, heard Richard tell his brother Shawn, “do the dance” and Shawn began jumping around, “acting silly.” A few minutes later, a fight erupted outside. There were approximately fifteen to twenty people there at the time. Daniel McLaughlin, an occupant of the house, saw “a couple of guys” come up to the door and attempt to enter. He testified, “The sa me guys that had been sitting across the parking lot for probably an hour” in a red Civic. When McLaughlin asked them to leave, Shawn said to “go F” himself. McLaughlin replied, “[W]e don’t need that in here, we don’t [sic] any knives.” Shawn said “okay” and walked out. McLaughlin went inside the house and then noticed that outside a fight “broke out.” While McLaughlin sa w all three brothers dur ing this confrontation, he could not positively identify them as being involved in the fight.- 3 - As Amber Phillips was leaving the party, sh e observed Richard arguing with one of her girlfriends outside. She asked Richard to leav e, indicating that they “weren’t looking for any kind of confrontation and it would just be better if th ey just left.” Richard told her he had “never been kicked out of anywhere” and she should not “show [her] face anywhere” in town because he would have her “personally escorted out.” Richard then walked away. Michael McLaughlin heard someone asking peop le to leave the party. He heard people responding they would not leave. McLaughlin walked out the back door and announced, “yes you are leaving.” Shawn then swung at McLaugh lin, but missed him. As McLaughlin leaned back, Richard hit him in the face. Prior to the assault, McLaughlin had not lunged at anyone nor spit in anyone’s face. Phillips observed McLaugh lin being hit in the head by two men that she could not identify. Phillips grabbed McLaughlin and “pulled him in towards the house.” Reid Adams heard the commotion, saw Mich ael McLaughlin being attacked, and went outside the house. As he stepped out the back door, he was attacked by Shawn. Shawn “thrust toward [his] stomach.” Adams thought Shaw n had punched him. As Adams and Shawn “wrestled around,” Shannon joined the attack, smas hing a bottle on the side of Adam’s head. Shawn then left the fight. Shannon and Ad ams continued to struggle on the ground until Shannon left. Adams began having trouble breathing a nd realized that he had been stabbed four times in his chest and stomach. Dustin Furlough testified that several uninvi ted people were at the party. When they were asked to leave, “problems started.” Rich ard, who was standing in the parking lot, yelled, “we’re killers.” Furlough then saw Shaw n and Shannon attacking Michael McLaughlin. Furlough went to break up the fight, but he was attacked by Richard, who threw Furlough to the ground. Richard then jumped on Furlough’s back. Shawn joined Richard, and the two brothers- 4 - started hitting Furlough in the back. Richard wrapped his hand around Furlough’s head and tried to gouge Furlough’s eyes out. Dominic Binetti observed Shawn approach Fu rlough from the rear and stab him in the back. Binetti saw the knife in Shawn’s hand. He then tried to jump Shawn. Shawn pulled the knife, swung it, and “nicked” Binetti’s forearm. Kernutt also went to Furlough’s aid, gra bbing Richard in a bear hug and saying, “calm down, calm down.” Richard told Kernutt he had a kni fe and threatened to kill him if Kernutt did not let him go. Kernutt let go of Richard’s arms and tried to get away from him. Richard then raised his hands over his head, cl enching both of his fists, with the blade of a knife sticking out from his hands. Megan Pritchard also came to Furlough’s assi stance. She grabbed Richard’s shirt. He flipped her over, and she saw a knife in his hand. James Griffenhagen went outside while other people were asking appellants to leave. While he was outside, he saw Richard and eith er Shawn or Shannon punch another person from the party. Griffenhagen tried to push them away and told them “to relax.” Richard came up behind Griffenhagen and placed a knife against his n eck. He told Griffenhagen to let go of his “friend” or he would slice his throat. Richard presse d the knife against Griffenhagen’s neck and cut him. Appellants eventually “convened together” and le ft in their car. Jeffrey Zirkle and Casey Mork left with appellants and went to Mork’s garage where they discus sed the fight. While in the garage, Richard ground down the blade of a knife on a bench grinde r, explaining he was grinding it to “get rid of the evid ence.” When the police arrived at the house to speak with them, they turned off the lights in the garage because they “didn’t want the cops to come over and bother [them].”- 5 - Mork testified about the events at the pa rty that night. He cl aimed appellants were “making their way to the parking lot” when an unidentified person “got in their face.” That person spit on one of the brothers. A fight then ensued. Mork did not see any of the brothers with a knife during the fight nor did he see anyone get stabbed. Detective Jim Fetterman interviewed Richard. Richard told the detective that appellants were asked to leave the party and did. As they walked to the pa rking lot, they were “jumped,” beaten, and one of their attackers spit on Shannon. Richard denied having a knife. Shawn told Detective Fetterman that, as th ey were leaving the pa rty, they were “bum rushed” in the parking lot. Shawn indicated he was choked by one of the assailants. Shawn admitted that he, Richard, and Shannon were a ll involved in the fight , but denied stabbing anyone. Shawn exhibited two injuries to the det ective, “a darkened eye area and also something across his chest.” Shannon told Investigator Rick Warford that , as appellants were leaving the party, an “unknown male” “just walked over and spit” on hi m. Richard then responded, “Man, he spit on you. Let’s go.” As they walked to their car, they were “jumped” by unknown individuals. At that point, Shannon said he lost sight of Richard and Shawn. He claimed he was “kicked and punched all over his body.” Shannon said he broke free and then saw “an unknown man who appeared who was holding a knife and said someone just got cut.” Shannon saw this man after he and his brothers “were back together and got back in the car.” Appellants then left. The investigator testified he saw only tw o very small, faint marks on Shannon.
ANALYSIS A. Evidence of a Mob Appellants argue the evidence is not sufficien t to prove they were members of a mob. Under Code § 18.2-38, a “mob” is defined as “[ a]ny collection of peopl e, assembled for the- 6 - purpose and with the intention of committing an a ssault or a battery upon any person or an act of violence as defined in § 19.2-297.1, without authority of law . . . .” We find the evidence was sufficient to prove appellants ac ted as members of such a mob. When reviewing the sufficiency of the evidence to support a conviction: “it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferenc es fairly deducible therefrom. We should affirm the judgment unle ss it appears from the evidence that the judgment is plai nly wrong or wit hout evidence to support it.” Higgin botham v. Commonwealth , 216 Va. 34 9, 352, 218 S.E.2d 534, 537 (1 975). Moreover, “[i]f there is evidence to support the conviction, an appellate court is not permitted to substitute its own judgment for that of the finder of fact, even if the appellate court might have reached a different conclusion.” Commonwealth v. Presley , 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998). Furthermore, “[t]he cred ibility of a witness and the inferences to be drawn from proven facts are matters solely for the fact finder’s determination. In its role of ju dging witness cred ibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.” Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citations omitted). Snow v. Commonwealth , 33 Va. App. 766, 774, 537 S.E.2d 6, 10 (2000). To prove the crime of battery or maim ing by mob, the Commonwealth must “establish beyond a reasonable doubt that the group of persons were at the time of th e battery [or maiming] assembled as a mob with a purpose and intentio n of committing an assault or battery [or maiming].” Harrell v. Commonwealth , 11 Va. App. 1, 4, 396 S.E.2d 680, 681 (1990). “The statutory definition of a mob re quires that the act of assembli ng be done for a specific purpose and with a specific intent -- to commit an assault or a battery w ithout lawful authority.” Id. at 6, 396 S.E.2d at 682. Harrell sets forth the basi s for this analysis. [W]e are concerned not just with the subjective intention of the individual, [a defendant], but with whether the group assembled and collectively formed with a purpo se and intention to assault and batter any person. Code § 18.2-38.- 7 - Not every incidence of group viol ence or assaultive conduct which involves a number of people collec tively involved in assaultive conduct constitutes a “mob” assault and battery. In order for group behavior by individuals to beco me mob behavior, thereby making “[a]ny and every person composing a mob” culpable for the criminal acts of the other mob members, the group must have “assembled for the purpose and w ith the intention of committing an assault or a battery upon a ny person.” Code § 18.2-38. The criteria which distinguishes indivi dual behavior while part of a group from “mob” behavior is a ssembling for the specific purpose and with the specific intent of committing an assault and battery upon any person. That is not to sa y that the purpose for which the group initially came together must have been for the purpose of committing an assault and battery before a “mob” may be said to have “assembled.” It is possible that individuals who are lawfully assembled may become members of a “mob” without great deliberation and for them to beco me part of a group which is moved or controlled by those impul sive and irrational forces which perpetuate mob violence. For a gr oup of persons lawfully gathered for whatever purpose to “assemble” as a mob within the intendment of Code § 18.2-38, they need only to collectively band together with the common purpose and intention of committing an assault and battery upon a person. Whether a group of individuals has been so transformed into a “mob” depends upon the circumstances; no particular words or express agreements are required to effect a change in a group’s purpose or intentions. Events or emotionally charged circumstances suddenly may focus individuals toward a common goal or purpose without an express or stated call to join forces. Id. at 7-8, 396 S.E.2d at 682-83. Within this framework, we examine the facts of the instant case. We must determine if the evidence permitted the fact finder to conclude appellants acted individually or as a “mob.” More specifically, we must determine whether th e appellants collectivel y banded together with the specific intent and purpose to commit an assault. The three brothers initially assembled and d ecided to “crash” a party. Until appellants and their entourage arrived, the pa rty was peaceful. At least one of the brothers carried a weapon with him. When appellants were asked politely to leave, Richard responded, “I’m a killer, I’m a killer, you don’t do this to me.” He pulled ou t a switchblade knife. Shawn, standing next to- 8 - Richard, “looked angry.” Shawn told McLaughlin to “go F himself” when he was told to leave. Several fights then ensued. Shawn swung at Michael McLaughlin, who had told the brothers to leave, but missed. Richard then hit McLaughlin in the face. The br others acted in concert to attack McLaughlin. Shawn then attacked Adams, thrusting toward Adams’s stomach. As Adams and Shawn struggled, Shannon smashed a bottle over Adams’ s head. Again, appellants were acting in

concert. During the melee, Richard attacked Furl ough, throwing him to the ground. Shawn and Shannon joined the attack on Furlough. Richard tried to “gouge” out Furlough’s eyes. Shawn stabbed Furlough in the back. As Binetti tried to assist Furlough, Shawn swung a knife at him, nicking his arm. Kernutt also we nt to Furlough’s aid. Richard thre atened to kill Kernutt if he would not release him. Again, appellants were acting in concert to assault someone. Griffenhagen saw Richard and one of his brot hers attacking a guest. Griffenhagen then grabbed one of the assailants. In response, Ri chard placed a knife against Griffenhagen’s neck and cut him. As we said in Harrell , the group could initially be asse mbled lawfully, but may become a mob “without great deliberation.” 11 Va. A pp. at 7, 396 S.E.2d at 683. The evidence here supports a finding that the appellants “collectiv ely band[ed] together with the common purpose and intention of committing an assault and battery.” Id. Their actions in attacking various individuals clearly indicate that they were acting collectively with the intent to assault. Appellants arrived at the part y together, uninvited and armed. When asked to leave, they became angry and aggressive. Systematically, th ey attacked a number of the party’s hosts and guests. Each brother assisted th e other brothers in the attacks. Each brother fought off people who were trying to assist the victims. Appe llants, agitated when as ked to leave the party,- 9 - collectively attacked a number of victims and di d not act as independent aggressors. The jury properly found, based on this eviden ce that appellants acted as a mob. B. Self-Defense Instruction Appellants next contend the tr ial court erred in not granting their offered instructions on self-defense. They argue the trial record suppor ts a self-defense instruction based on testimony that, as appellants were leaving the party, an unidentified person “got in their face” and spit on one of the brothers. They claim a group of pe ople began attacking them. Shawn was choked by one of these assailants. They also claim they were unarmed. Because the trial court refused to grant the instruction proffered by the accused, we view the facts in the light most favorable to the defendant. Commonwealth v. Alexander , 260 Va. 238, 240, 531 S.E.2d 567, 568 (2000). However, an instruction is proper only if supported by more than a scintilla of evidence. Commonwealth v. Donkor , 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998). If the instruction is not applicable to the facts and circumstances of the case, it should not be gi ven. Hatcher v. Commonwealth , 218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978) (citing Banner v. Commonwealth , 204 Va. 640, 647, 133 S.E.2d 305, 310 (1963)). Commonwealth v. Sands , 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001). In evaluating whether the trial court erred in failing to grant an instru ction, the appellate courts review the record for “affirmative evidence” that supports the instru ction, rather than basi ng the review upon “the jury’s ability to reject evidence that is uncontroverted.” Commonwealth v. Vaughn , 263 Va. 31, 37, 557 S.E.2d 220, 223 (2002). See Donkor , 256 Va. at 446-47, 507 S.E.2d at 77 (finding the Court of Appeals erred “i n treating the jury’s ability to reject evidence as a substitute for the evidentiary support required to gr ant a defendant’s request for an instruction” and reinstating the conviction). “Self-defense excuses or justifies a homici de or assault committed while repelling violence arrayed against the defenda nt. It is a response to the th reat of death or serious bodily- 10 - harm. It is a defense to an act of violence th at repels violence direct ed at the defendant.” Graham v. Commonwealth , 31 Va. App. 662, 672, 525 S.E.2d 567, 572 (2000). “[S]elf-defense may be either justif iable or excusable. If it is either, it entitles the [accused] to an acquittal.” In e ither case, he is deemed to be innocent and guilt less of any crime. Bailey v. Commonwealth , 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958) (citations omitted). Assessing whether a particular act was committed in self-defense is distinct from determining whether its commission was intentional. In making a plea of self-defense, an accused “implicitly admits the ki lling [or wounding] was intentional.” McGhee [v. Commonwealth] , 219 Va. [560,] 562, 248 S.E.2d [808,] 810 [(1978)] (emphasis added). Instead, the issue in a plea of self-defense is whether the accused’s admittedly intentional act was either justifiable or excusable. See id. ; cf. Barrett v. Commonwealth , 231 Va. 102, 106, 341 S.E.2d 190, 192 (1986) (stating that “[a] plea of self-defense and a claim of provoked heat of passion do not conflict with each other”). Peeples v. Commonwealth , 30 Va. App. 626, 642-43, 519 S.E.2d 382, 390 (1999) ( en banc ) (Lemons, J., concurring). Our inquiry begins by considering whether mo re than a scintilla of evidence supports the contention that appellants stabbed the victims while under reasonable apprehension of death or great bodily harm. If not, then the self-defense instruction was properly denied. Simply claiming they acted in self-defen se is insufficient. Some affirmative evidence must suggest appellants were under reasona ble apprehension of death or great bodily harm. No evidence suggests appellants stabbed th e victims in self-defense. Examining the evidence in the light most favorable to appellan ts, the record establishes that someone spit on Shannon and that a group of people attacked appellant s as they were leaving the party. To infer these attackers were the victims is pure speculation. No one iden tified any of the victims as a member of the group that allegedl y attacked appellants. To s upport a self-defense instruction, appellants must point to affirmative evidence that these victims were physically threatening them. See Vaughn , 263 Va. at 37, 557 S.E.2d at 223 (a defendant must have affirmative- 11 - evidence to support a self-def ense instruction); Graham , 31 Va. App. at 672, 525 S.E.2d at 572 (a self-defense instruction is justified when the de fendant repels a threat of death or great bodily harm). Appellants claim that evidence in the record s upports their theory that the victims were injured during the attack on appellants. Howeve r, that testimony was given by someone who did not see anyone stabbed or cut. The witness merely speculated that “if it would have happen [sic], probably [it occurred] while everyone was fighting.” The witness was not clear about who was probably injured during the fighting -- the vic tims or appellants. The question to which he responded did not specify whether the injuries we re to the victims or to appellants, and the witness did not see for himself who was injured or how anyone was injured. This evidence is not more than the scintilla ne cessary to support a jury in struction on self-defense. While some evidence supports a ppellants’ claim that they we re attacked in the parking lot, no evidence supports a claim that they acted in self-defense. Althoug h the jury could have believed appellants’ statements that they did not have any we apons, and thereby could have found appellants not guilty, th at evidence does not alternativ ely support the contention that appellants acted in self-defense. See Vaughn , 263 Va. at 37, 557 S.E.2d at 223.
CONCLUSION We find the evidence is sufficient to support the jury’s finding of guilt. We also find the trial court did not err when it rejected appellants’ self-defense instructions. Affirmed.