COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, Petty and Beales Argued at Chesapeake, Virginia EDWARD JOHNSON OPINION BY v. Record No. 2091-10-1 JUDGE D. ARTHUR KELSEY AUGUST 2, 2011 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Charles E. Haden for appellant. Benjamin H. Katz, Assistant A ttorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.

The trial court convicted Edward J ohnson of maiming by mob, Code § 18.2-41, conspiracy to maim by mob, Code §§ 18.2-22, 18.2-41, and participating in a criminal street gang, Code § 18.2-46.2. On appeal, Johnson challe nges the sufficiency of the evidence and claims the trial court erred in admitting certain exhibits. We affirm Johnson’s convictions, finding his arguments either lacking in merit or procedurally defaulted.

I. On appeal, we review the evidence in the “ light most favorable” to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “discard the evidence of the accu sed in conflict with th at of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). In addition, “an appellate court’s ‘examinati on is not limited to the evidence mentioned by a party in trial argument or by th e trial court in its ruling.’” Perry v. Commonwealth , 280 Va.- 2 - 572, 580, 701 S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth , 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)). Instead, “an appellate court must consider all the evidence admitted at trial that is contained in the record.” Id. (quoting Bolden , 275 Va. at 147, 654 S.E.2d at 586); see also Hamilton v. Commonwealth , 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010). Viewed from this perspective, the record s hows a fight broke out at a club in Hampton one night in April 2009. One of the combatants, a young man known as “Akeem,” was known to be a member of the “three-six” gang. When club security sprayed mace to break up the fight, Akeem and several fellow gang members fled outside. Clyde Bell was with one of the young men wh o had fought against Akeem. As the group dispersed, he also went outsi de. Standing outside the club, Bell overheard one of the gang members ask, “Where them bitches at?” Bell ca lled a friend inside the cl ub and said, “I’m about to get jumped.” Moments later, Akeem and a pproximately six other gang members approached Bell. Johnson was one of them. Bell asked, “So you-all going to jump me, right?” As Akeem advanced toward Bell, Bell struck Akeem in an e ffort to defend himself. The effort failed. As Akeem began to beat Bell, the three-six gang members in the group joined one by one in the beating, which lasted about five minutes. During the sustained assault, Bell heard severa l of the attackers say, “three-six, bitch.” A witness who knew Johnson saw him “in the middle of the fight” and “throwing punches” at Bell during the mêlée. The witness said he was “a hundred-percent sure” Johnson was “involved in the fight.” After the beating en ded, the three-six gang members walked away. Bell heard them say “Who next?” and “Where the rest of them at?” The beating left Bell with two broken vertebrae in his lumbar spine. A grand jury indicted Johnson for particip ating in a criminal street gang, maiming by mob, conspiracy to maim by mob, and robbery. At trial, a detective trained in investigating- 3 - criminal street gangs testifie d as an expert concerning the 36th Street Bang Squad — known colloquially as the “three-six” gang. The detective described th e unique hand signs and symbols associated with the three-six gang. He also expl ained in detail the gang’ s violent reputation and its association with other criminal street gangs like the “Bloods” and the “G-Shine” organizations. Over Johnson’s objection, the trial court ad mitted into evidence a 2009 conviction order finding Johnson guilty of two violent felonies. The trial court also admitted into evidence a plea agreement and sentencing order showing Jumar A. Turner, one of the participants in the beating, was found guilty of committing a violent felony earl ier in 2009. Earlier in the trial, Johnson’s counsel stated he would object to the Turner co nviction, but when the prosecutor offered it into evidence, Johnson’s counsel raised no objection. Upon the close of the ev idence, the trial court denied Johnson’s motion to strike and found him guilty of maiming by mob, conspiracy to maim by mob, and participating in a criminal street gang. The c ourt acquitted Johnson of the robbery charge.
II. On appeal, Johnson challenges the sufficiency of the evidence for ea ch of the convicted offenses. He also argues that, even if the eviden ce is sufficient, the case must still be remanded for a new trial because the trial court erroneously admitted into evidence his prior conviction and Turner’s plea agreement and sentencing order.

A. S UFFICIENCY OF THE E VIDENCE We examine a trial court’s factfinding “with the highest degree of a ppellate deference.” Thomas v. Commonwealth , 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). An appellate court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Williams v. Commonwealth , 278 Va. 190, 193, 677 S.E.2d 280,- 4 - 282 (2009) (emphasis in original) (quoting Jackson v. Virginia , 443 U.S. 307, 318-19 (1979)). Instead, the only “relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth , 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis added) (citing Jackson , 443 U.S. at 319). We are “not permitted to reweigh the evidence,” Nusbaum v. Berlin , 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth , 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). In a bench trial, a trial judge ’s “major role is the dete rmination of fact, and with experience in fulfilling that role comes expertise.” Id. (citation omitted). If the evidence passes the sufficiency test, “the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finde r of fact at the trial.” Courtney v. Commonwealth , 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) (citation omitted); see also Holloway v. Commonwealth , 57 Va. App. 658, 664, 705 S.E.2d 510, 513 (2011) ( en banc ).

1. Maiming by Mob Code § 18.2-41 provides that any “person com posing 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, sh all be guilty of a Class 3 felony.” The statutory text makes clear malicious wounding by mob, as se t out in Code § 18.2-41, is a different offense from malicious wounding as codified in Code § 18.2-51. Malicious wounding by mob does not require the Commonwealth to prove malice because it defines the crime as “maliciously or unlawfully [wounding] any person . . . with intent to maim, disable, disfigure or kill him . . . .” Code § 18.2-41. The disjunctive term “or,” which separa tes the terms “maliciously” and “unlawfully,” indicates that C ode § 18.2-41 only requires proof that the wounding was unlawful. Code § 18.2-41 therefore- 5 - criminalizes different conduc t from malicious wounding under Code § 18.2-51. Paiz v. Commonwealth , 54 Va. App. 688, 698, 682 S.E.2d 71, 76 (2009) (alterations in original). Under Code § 18.2-38, “[a]ny collection of peopl e, assembled for the purpose and with the intention of committing an assault or a ba ttery upon any person or an act of violence as defined in § 19.2-297.1, without au thority of law, shall be deemed a ‘mob.’” Thus, to sustain a conviction of ma iming by mob under Code § 18.2-41, the evidence must establish that the accused was a member of a group composing a mob; that the mob caused the victim bodily injury; and that the mob acted wi th the malicious [or unlawful] intent “to maim, disable, di sfigure or kill” the victim. Commonwealth v. Leal , 265 Va. 142, 146, 574 S.E.2d 285, 287-88 (2003). An otherwise lawful assembly of people can become a “mob” simply by adopting an unlawful intent to commit violence. See Harrell v. Commonwealth , 11 Va. App. 1, 7-8, 396 S.E.2d 680, 683 (1990). “Whether a group of individuals has been so transformed into a ‘mob’ depends upon the circumstances; no pa rticular words or express agreements are required to effect a change in a group’s purpose or intentions.” Johnson v. Commonwealth , 58 Va. App. 303, 320, 709 S.E.2d 175, 184 (2011) (quoting Harrell , 11 Va. App. at 7-8, 396 S.E.2d at 683). “Events or emotionally charged circumstances suddenly may focus individuals toward a common goal or purpose without an express or st ated call to join forces.” Id. Because the “impulsive and irrational forces that may exist to transform peaceable assembly into mob violence are to be evaluated on a case-by-case basis,” id. , the determination is a questi on of fact for the factfinder. The evidence showed a mob formed outside the club with the specific intent of committing violence. One of the mob’s member s voiced its collective question, “Where them bitches at?” — thereby signaling th e mob’s intent to find and assa ult those associated with the earlier fray. They found Bell, who had accomp anied one of the men who had fought against Akeem. Apparently aware of what was about to happen, Bell asked rh etorically, “So you-all- 6 - going to jump me, right?” The group then beat Be ll for about five minutes, leaving him with two fractured vertebrae. As they walked away, Bell heard them say “Who next?” and “Where the rest of them at?” — further confirming th e collective violent intent of the mob. Johnson claims the evidence, at most, show s he merely threw a few punches. This assertion, whether true or not, misses the point . “Every person composing a mob ‘becomes criminally culpable even though the member may not have actively encouraged, aided, or countenanced the act.’” Leal , 265 Va. at 147, 574 S.E.2d at 288 (quoting Harrell , 11 Va. App. at 8, 396 S.E.2d at 683); Abdullah v. Commonwealth , 53 Va. App. 750, 759, 675 S.E.2d 215, 219-20 (2009) (citation omitted). “In other words, the statute imposes ‘individual liability based on collective act and intent.’” Paiz , 54 Va. App. at 697, 682 S.E.2d at 75 (quoting Ronald J. Bacigal, Virginia Practice: Criminal Offenses and Defenses 523 (2008-09 ed.)). The duration of the beating and the “gravity of the vic tim’s injuries inflicted by the mob,” Leal , 265 Va. at 147, 574 S.E.2d at 288, demonstrate that the mob, wh ich included Johnson, intended to seriously injure and maim Bell.
2. Conspiracy to Maim by Mob In his sufficiency argument, Johnson addresse s in detail his challe nge to the maiming-bymob conviction, see Appellant’s Br. at 28-32, but makes no ar gument specific to his conspiracyto-maim-by-mob conviction, except for a single statement that he did not strike Bell and “never agreed,” id. at 29, to do so. With respect to the c onspiracy conviction, Jo hnson implies, without expressly stating, that his conspi racy conviction should be overtu rned for the same reasons he advanced for overturning his maiming-by-mob c onviction. Having rejected Johnson’s challenge to the maiming-by-mob conviction, we thus limit our review of his conspiracy conviction to his claim that he “never agreed” to strike Bell or anyone else. Id.- 7 - “It is a rare case where any ‘formal agr eement among alleged conspirators’ can be established.” James v. Commonwealth , 53 Va. App. 671, 678, 674 S.E.2d 571, 575 (2009). Because “most conspiracies are ‘clandestine in nature,’” id. (quoting 2 Wayne R. LaFave, Substantive Criminal Law § 12.2(a), at 266 (2d ed. 2003)), cons piracy law does not require proof of an “explicit agreement,” Jones v. Commonwealth , 279 Va. 295, 301, 687 S.E.2d 738, 741 (2010). A conspiratorial agreement “often ma y only be established by circumstantial and indirect evidence including the ove rt actions of the parties.” Id. (citing Floyd v. Commonwealth , 219 Va. 575, 580-81, 249 S.E.2d 171, 174 (1978)). Here, a reasonable factfinder could infer from the circumstances and the “overt actions of the parties,” id. , that the mob did not form spontaneously, but rather, as a result of a collective, agreed upon effort to punish anyone involved in the earlier fight in side the club. One member of the group all but announced the group’s purpose by asking, “Where them bitches at?” After the five-minute beating of Bell, another member of the mob confirmed the group’s continuing purpose by asking, “Who next?” and “Where the re st of them at?” Because one eyewitness placed Johnson “in the middle of the fight,” the tr ial court could reasonably infer Johnson fully joined in the collective decision to target the participants in the club fray and anyone who may have accompanied them.
3. Participating in a Criminal Street Gang At trial, Johnson challenged the sufficiency of the evidence s upporting the gang charge on the ground that the evidence did not prove the beating of Bell wa s “part of, or for the benefit of a street gang.” Counsel spec ifically disclaimed any challenge to the existence of the gang. “I’m not going to go into the evidence,” counsel advised the court, “as to whether or not it may rise to the level of a criminal street gang.” Counsel limited his argument to the assertion that the beating was “not for the benefit of, or at the direction of, or in a ssociation with that gang.” “That- 8 - is a requirement for this,” couns el concluded, “and this is where the prosecution’s evidence falls down with respect to th is particular crime.” On appeal, Johnson raises for the first time a sufficiency challenge to the existence of a “criminal street gang” under Code § 18.2-46.1. We do not address this question. Applying Rule 5A:18, an “appellate court, in fairness to the tr ial judge, should not . . . put a different twist on a question that is at odds with the ques tion presented to th e trial court.” Commonwealth v. Shifflett , 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999). Under settled principles, the “same argument must have been raised, with specificity, at trial before it can be considered on appeal.” Correll v. Commonwealth , 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004); see also Riner v. Commonwealth , 268 Va. 296, 325, 601 S.E.2d 555, 571 (2004). “Making one specific argument on an issue does not preserve a separate le gal point on the same issue for review.” Edwards v. Commonwealth , 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) ( en banc ), aff’d by unpublished order , No. 040019 (Va. Oct. 15, 2004). 1
Johnson claims he should be excused for not ra ising the point at tr ial because the best authority supporting it, Taybron v. Commonwealth , 57 Va. App. 470, 703 S.E.2d 270 (2011), was decided after his conviction and either effected a “change in the law” or created “new law” in the Commonwealth. See Oral Argument Audio at 5:07 to 5:09, 9:49 to 9:56. We do not believe Taybron changed existing law or created new law. 2 But even if it did, the “perceived

1 See also W. Alexandria Prop., Inc. v. First Va. Mortg. & Real Estate Inv. Trust , 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980) (“On appeal, though taking the same general position as in the trial court, an appellant ma y not rely on reasons which could have been but were not raised for the benefit of the lower court.”); Buck v. Commonwealth , 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994) (holding that an appellate cour t will not consider an argument on appeal different from one raised at trial even if it is related to the same issue).
2 Taybron held “ only that , in this case , the evidence fails to establish that appellant, a member of the 36th Street Bang Squad, was a member of the national Bloods or some other gang organization to which Turner and King also belonged.” 57 Va. App. at 485 n.6, 703 S.E.2d at 278 n.6 (emphasis added).- 9 - futility of an objection does not excuse a defendant’s procedural default at trial.” Commonwealth
v. Jerman , 263 Va. 88, 94, 556 S.E.2d 754, 757 (2002) (“Our conclusion is not altered by the fact that the [old rule] was still in effect on the date of [defendant’s] trial.”); see also McGhee v. Commonwealth , 280 Va. 620, 625, 701 S.E.2d 58, 60-61 (2010); Riner v. Commonwealth , 40 Va. App. 440, 456, 579 S.E.2d 671, 679 (2003), aff’d , 268 Va. 296, 601 S.E.2d 555 (2004); Snurkowski v. Commonwealth , 2 Va. App. 532, 536, 341 S.E.2d 667, 669 (1986).

B. E VIDENTIARY E RRORS On appeal, Johnson contends the trial court er red in admitting into evidence Turner’s plea agreement and sentencing order. At trial, how ever, Johnson did not object to the evidence at the time of its admission and, thus, th e trial court never ruled on th e issue. “To be timely, an objection to the admissibility of evidence must be made when the occasion arises — that is, when the evidence is offered, the stat ement made or the ruling given.” Zook v. Commonwealth , 31 Va. App. 560, 568, 525 S.E.2d 32, 35-36 (2000) (quoting Harward v. Commonwealth , 5 Va. App. 468, 473, 364 S.E.2d 511, 513 (1988)). Johnson seeks to excuse the default because, earlie r in the trial, his tr ial counsel stated he would object when the evidence was later presente d. Counsel never did object, however, and the trial court properly refrained from sua sponte raising the objection for him. Johnson also seeks to apply the “ends of justice” exception of Rule 5A:18 by asserting the court probably would have sustained the objection under the reasoning we later adopted in Taybron . We find neither assertion sufficient to excuse the default. No explanation is given for couns el’s failure to object at the time the trial court admitted the evidence. Therefore, no “good cause” under Rule 5A:18 has been proffered, much less proven. With respect to Johnson’s Taybron argument, the ends-of-justice exception to waiver does not apply simply because an appellant asse rts a winning argument on the waived issue. If- 10 - that were so, procedural default “would never apply, except when it does not matter.” Delaney v. Commonwealth , 55 Va. App. 64, 69, 683 S.E.2d 834, 836 (2009) . Considerably more must be shown before that narrow exception comes into pla y. Nothing in the circumstances of this case rises to that level. 3 Johnson also contends the trial court erred by admitting evidence of his own 2009 conviction order finding him guilty of malicious wounding and maiming by mob. 4 Because these convictions did not relate to “gang activity or the activit ies of the 36th Street Bang Squad,” Johnson argues, “the evidence was irrelevant and should have been excluded.” Appellant’s Br. at 37. We disagree. Code § 18.2-46.2(A) provides: Any person who actively participates in or is a member of a criminal street gang and who knowi ngly 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 crime thus involves two elements — status an d conduct. While in the status of either an active participant or a member in a criminal street gang, the defendant must participate in the predicate criminal conduct related to any criminal street gang. A criminal street gang includes any ongoing organization, associatio n, or group of three or more persons, whether formal or informal, (i) which has as one of its

3 Johnson’s failure to make a contemporaneous objection deprived “the opposing party,” here the Commonwealth, of “the opportunity to meet the objection at that stage of the proceedings.” Charles E. Friend, The Law of Evidence in Virginia § 8-3, at 290 (6th ed. 2003). While the duty to object is due to the trial cour t so that it knows the precise question it must decide, it “is also due to the part y whose evidence is objected to . . . so that he may have an opportunity to remedy the defect pointed out, if possible, and have the case tried upon its merits.” Id. at 290-91(quoting Jackson v. Chesapeake & Ohio Ry. , 179 Va. 642, 651, 20 S.E.2d 489, 492-93 (1942)). For all we know, additional ev idence was available to the prosecutor and could have been offered if Johnson’s trial c ounsel had successfully objected at the time the exhibit was admitted into evidence. See Scialdone v. Commonwealth , 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (noting “a specific, contem poraneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding” (citation omitted)).
4 We recently affirmed these convictions in Johnson v. Commonwealth , 58 Va. App. 303, 709 S.E.2d 175 (2011).- 11 - primary objectives or activities the commission of one or more criminal activities; (ii) whic h has an identifiable name or identifying sign or symbo l; 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 (emphasis added). The Commonwealth offered Johnson’s pr ior felony conviction order to prove the predicate criminal “acts of violence” committed “i ndividually or collectively” by members of the putative gang under Code § 18.2-46.1. See Code § 19.2-297.1(A)(i) (identifying malicious wounding and maiming by mob as “acts of violen ce”). Unlike the conduct element of the offense, the status element — act ive participation or membership in a criminal street gang — requires the application of C ode § 18.2-46.1, which conspicuously omits any requirement that the predicate criminal acts be gang related. Faithful to the textualist appr oach to statutory interpretati on, we presume “the legislature ‘chose, with care,’ the specific words of the statute.” Va. Emp’t Comm’n v. Cmty. Alts., Inc. , 57 Va. App. 700, 706, 705 S.E.2d 530, 533 (2011) (quoting Kane v. Szymczak , 41 Va. App. 365, 371, 585 S.E.2d 349, 352-53 (2003)). “Working from the statutory text, we strive to give that language a ‘literal construction’ unless doing so ‘would involve a manifest absurdity.’” Id. (quoting Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield , 42 Va. App. 264, 276, 590 S.E.2d 631, 638 (2004)); see also Evans v. Evans , 280 Va. 76, 82, 695 S.E.2d 173, 176 (2010) (restating “manifest absurdity” caveat). Code § 18.2-46.1 does not require th e predicate criminal act to be gang related. And we are unwilling to “judicially graft” such a requirement into the statute, Whitfield , 42 Va. App. at 280, 590 S.E.2d at 640, under the subtle “gui se of judicial interpretation,” Holly Hill Farm Corp.
v. Rowe , 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). “We can only administer the law as it is- 12 - written.” Uninsured Emp’rs Fund v. Wilson , 46 Va. App. 500, 506, 619 S.E.2d 476, 479 (2005) (quoting Coalter v. Bargamin , 99 Va. 65, 71, 37 S.E. 779, 781 (1901)). Thus, the trial court did not err in admitti ng Johnson’s earlier convi ction order from 2009 to prove one of the predicate criminal “acts of violence” committed “individually or collectively” by members of the putative gang under Code § 18.2-46.1. 5

III. In sum, Johnson’s arguments either lack me rit or are procedurally defaulted. For these reasons, we affirm his convictions of maim ing by mob, conspiracy to maim by mob, and participating in a criminal street gang. Affirmed

.

5 Johnson argues our conclusion conflicts with Phillips v. Commonwealth , 56 Va. App. 526, 537, 694 S.E.2d 805, 810 (2010). We do not see the conflict. Phillips held only that the “statute necessarily requires that the criminal acts establishing the existence of the criminal street gang occur before , not contemporaneously with, the offense for which the existence of the criminal street gang is required.” Id. (emphasis in original). The criminal acts resulting in Johnson’s 2009 convictions for malicious wounding and maiming by mob occurred on February 7, 2009. The charges in this case arose out of the beating of Bell on April 11, 2009.