COURT OF APPEALS OF VIRGINIA

Present: Judges El der, Petty and Alston Argued by teleconference

EDWARD JOHNSON OPINION BY v. Record No. 0439-10-1 JUDGE ROSSIE D. ALSTON, JR.

MAY 24, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge Terry N. Grinnalds for appellant. Benjamin H. Katz, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.

Edward Johnson (appellant) appeals his convictions under Code §§ 18.2-51 and 18.2-41 for malicious wounding and maiming by mob, respectiv ely. On appeal, appellant argues that the

evidence was insufficient to s upport his convictions. Appellant further contends that his

convictions under both statutes violate principles of double jeopardy. Finding no error, we affirm appellant’s convictions.

I. BACKGROUND On appeal, we view “the evidence in the light most favorable to the Commonwealth, the prevailing party in the circui t court, and we accord the Commonwealth the benefit of all

reasonable inferences deducible from the evidence.” Britt v. Commonwealth , 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008). So viewed, the evidence indicated that on February 7, 2009, Daniel Ammons (Ammons) and Cameron James (James), two airmen in the United States Air Force, visited a McDonald’s- 2 - restaurant in Hampton, Virginia. 1 While there, they encountered a group of fifteen to twenty men, including appellant, Terry Batten, and a ma n known only as “Mike-Mike.” After Ammons and James ordered their food, a few men from this group, including Mike-Mike and Batten, saw

that Ammons had a red bandana visible in his ba ck pocket and approached the airmen and asked whether they were in a gang. According to James, he replied that he was not in a gang, and the group of men making the inqui ry “acted just like everything was cool.”

The airmen then decided to leave the restaurant . As they collected their order, exited the restaurant, and entered the parking lot, Mike -Mike and Batten followed. James heard the two men saying, “[N]o, you-all cool, everything’s good.” In response, Ammons and James turned around to face the men, one of whom reached out to shake Ammons’ hand in what James described as “a gang kind of handshake.” Ammons was unfamiliar with this handshake and did not execute it properly. At that point most, if not all, of th e group of men who had originally

confronted Ammons and James in the McDonald’s exited the restaurant and approached the two airmen. James could not recall specifically whether appellant was among the men who exited the McDonald’s. Although James attempted to keep all of the men in his line of sight, he soon felt a blow to the back of his head. Subsequent ly, at least four or five members of the group were on top of him, hitting him from every side. At trial, James testified that he could not identify specifically who hit him. James further testified that when the beating ended, he was bleeding from his nose and had sustained a broken nose and fractured cheek as a result of this

incident.

Thomas Nixon witnessed the attack as he wa s leaving a restaurant next door to the McDonald’s on the evening of February 7, 2009. As he walked to his nearby car with his wife,

1 Ammons and James wore civilian clothing when they visited the McDonald’s. We refer to them as airmen in this opinion only as a useful label of identification.- 3 - he saw “a group of probably fifteen to twenty mix[ed ] age males” in the McDonald’s parking lot. Next, he realized that someone was being kicked, stomped, a nd punched and then saw the group converge on top of what looked to be one pe rson. After someone yelled “[C]ops,” Nixon saw the group flee from the parking lot. At this po int, Nixon rushed over to help the person who had been beaten. When he got to James, Nixon saw “a very large pool of blood beside his head.” Nixon also observed blood coming out of James’ nose, mouth, and eye. In Nixon’s view, there was “a huge amount of blood for a beating,” so much so that Nixon initially mistakenly believed

that James had been shot. As a result of the February 7, 2009 incident , appellant was indicted on July 6, 2009, for misdemeanor assault and battery by mob, participation in a cr iminal street gang, felonious malicious bodily injury, and malicious bodily injury by mob. Tron Martinez, who was inside the McDonald’s when Amm ons and James entered, also saw the entire series of events. At trial, Martinez testified that, on February 7, 2009, he and a friend traveled from a party to the Wal-Ma rt located near the McDonald’s on Mercury Boulevard, where they “met up” with approxima tely seven to eight other men, including Batten, Tevin Terry (Terry), Curtis Scott, and appellant, whom Martinez testified he had not met before that night. Martinez then decided to go to the McDonald’s, where he en countered the same group of men from the Wal-Mart, as we ll as approximately ten addi tional men. Martinez observed appellant sitting near the entrance of the restaurant, about thirty f eet from Martinez, with Batten, Scott, Terry, and a man Martinez knew as “Ant.” Martinez tes tified that, before the airmen arrived, Terry initiated a confr ontation with another patron by in tentionally walking into the man. According to Martinez, Te rry and appellant then followed the patron outside, and Terry

cursed at the man and threw a dri nk at his car as he drove away.- 4 - Shortly thereafter, Martinez saw Ammons and James enter the restaurant. Batten asked

Ammons whether the red bandana sticking out of Ammons’ back poc ket meant he was in a gang. According to Martinez, Ammons responded that he was “trying to get out of a gang.” Appellant was sitting about fifteen feet from Batten and Ammons during th is exchange. At this point, Martinez heard an unknown speaker exclaim, “Knoc k him out, like you used to do up state.” A few moments later, as Ammons and James atte mpted to leave the restaurant, Martinez saw Batten attempt to “dap [Ammons] up,” or o ffer him a gang handshake. Ammons failed to properly execute the handshake, after which Batte n “waved [Ammons] off.” Terry then stated, “I’m gonna [sic] hit the dude, I’m gonna [sic] step on him.” At trial, Ma rtinez testified that Terry appeared “[h]ot headed and ready to fight ” and that appellant’s demeanor and “swagger” indicated that appellant wa s prepared to aid Terry. According to Martinez, as Ammons and Ja mes exited, “everybody” got up and exited the restaurant. Terry and appellant came up behind Ammons and James. Terry struck Ammons, and appellant struck James. Next, Martinez, Batte n, and Scott attacked Ammons. Martinez chased Ammons to another parking lot, and, after striking Ammons one time, Martinez returned to the McDonald’s parking lot, where he saw “a whole bunch of people,” including appellant, standing around James, who was on the ground. Martinez es timated that only fifteen seconds elapsed between the time that appellant first struck Jame s and the time that Martinez returned to the McDonald’s parking lot to fi nd James on the ground, surrounded. After describing the previously cited circum stances in his trial testimony, Martinez was

asked about his criminal record. Martinez adm itted having been charged with eleven separate felonies, some from the February 7, 2009 incident and some from a second, later incident. Martinez stated that he was currently out on bail, but not through any agreement with the Commonwealth. He also denied being offered any deals from the Commonwealth in exchange- 5 - for his testimony. On cross-examination, Martinez stated that he had graduated from Hampton High School, where he had played football, and that he hoped to play football in college. In response to defense counsel’s questioning about his hopes for leniency in exchange for his testimony, Martinez responded by recognizing that a felony conviction woul d adversely affect his college plans; however, he also stated that he appreciated that fa lse testimony would carry negative consequences. He further stat ed that he had te stified truthfully. At trial, Detective Earnest Corey Sales of the Hampton Police Division provided expert testimony on gang identification and ideology in the City of Hampton. Sales testified that “G-checking,” or the manner by which gangs iden tify fellow members, is the process by which a member of a gang asks another i ndividual questions about his gang affiliation in order to “weed out . . . false gang members.” According to Sale s, if a person is “f lagging,” or “wearing a bandana [associated with the gang in his] pocket or on [his] person,” it is common practice for a gang member to “G-check” the flagging person in or der to test his knowledge of the gang. If the flagging person is unable to answer the questions posed to him, this can result in a range of repercussions, from stealing this individual’ s bandana to a potentially fatal “beat down.” At the conclusion of the bench trial, the tr ial court found appellant guilty of felonious malicious wounding and maiming by mob and acqu itted appellant of misdemeanor assault and battery by mob and participation in a criminal street gang. The trial court found, as a matter of fact, that appellant followed James out of the Mc Donald’s and hit him. Furthermore, the trial court found that appellant and others from the group bec[ame] so incensed that they di d, in fact, form a mob mentality with a common plan to assault [James] and/or [Ammons]. And [they] got up from where they sa t and went outside and began to accelerate the violence to an extent that resulted in [James’] wounding in a malicious fashion.- 6 - With regard to appellant’s conviction for malic ious wounding, the trial court found that appellant was “at the very least . . . a prin cipal [in the second degree].” In reaching its findings, the trial court specifically found that Martinez’s testimony, while some what self-serving, was also accurate and thus credible. In making this cred ibility determination, the trial court found that Martinez’s “demeanor and appearance on the sta nd, his body language, [and] his response[s] to all the questions he was asked” sugge sted that he was being truthful. After his conviction, appellant moved to dismiss one of his two convictions on the grounds that his conviction of both offenses c onstituted double jeopardy and thus violated his rights under the Fifth Amendment to the Unite d States Constitution and Code § 19.2-294. The trial court rejected appellant’s motion to dismi ss, essentially reconfirming the determination of guilt, and sentenced appellant to ten years impris onment for each offense, to run concurrently, with four years of each offense’s sentence suspended. This appeal followed.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

1. Standard of Review In reviewing a conviction for the sufficiency of the evidence, we ask only if “‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Maxwell v.

Commonwealth , 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). We “will affirm the j udgment unless the judgment is plainly wrong or without evidence to support it.” Bolden v. Commonwealth , 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).- 7 - 2. Malicious Wounding On appeal, appellant first argues that th e evidence was insufficient to support his conviction for malicious wounding, because the tr ial court erred in relying upon Martinez’s testimony and because the evidence did not sh ow that appellant’s actions caused James’ injuries. 2 We reject both of appellant’s arguments and hold that the evidence was sufficient to support appellant’s conviction for malicious wounding. Appellant contends that the trial court erred in relying upon Martinez’s testimony because it was inherently suspect. In support of this cl aim, appellant maintains that Martinez admitted to striking one of the two airmen at least once dur ing the incident. In addition, Martinez had charges pending based on the underlying incident and a second, unrelated incident, and he faced

2 Rule 5A:18, as in effect at the time of appellant’s trial, pr ovided that “[n] o ruling of the trial court . . . will be considered as a basis fo r reversal unless the objection was stated together with the grounds therefor at the time of the ruling . . . .” We note that at trial, appellant did not state his objection to the sufficiency of the ev idence regarding causation with the precision or particularity that is ge nerally desirable. However, for purposes of this matter we find that appellant stated his concern with the minimum amount of specificity necessary to fulfill the requirements of Rule 5A:18. In his closing argument, appellant stated, In any event, between these tw o charges [of malicious wounding and malicious wounding by mob], I would assume the Court would have to make a determination whether my client caused , uh, if the Court did feel that there was a maiming, the Court would make a determination whether it was with a mob or without a mob . . . . (Emphasis added). Because appellant referenced the issue of causation, we find that he met the minimum requirements of Rule 5A:18. The purpose of Rule 5A:18 is to “enable the ruling court to take any necessary corrective action,” Saunders v. Commonwealth , 38 Va. App. 192, 195, 562 S.E.2d 367, 369 (2002), and to “rule intelligently on the issues presented,” Weidman v. Babcock , 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). Appellant’s st atement regarding causation in his closing argument fulfilled this purpose; indeed, the trial court made an explicit finding of fact regarding causation, stating that the members of the group who followed the airmen outside the McDonald’s “accelerated the violence to an extent that resulted in Mr. James’ wounding in a malicious fashion.” (Emphasis added). As a re sult, we conclude that the primary purpose of Rule 5A:18 was accomplished and thus appellant’ s argument regarding causation is not waived on appeal.- 8 - criminal penalties and damage to his prospect ive college football career if convicted. The possibility of Martinez’s bias was raised during both direct- and cross-examination at trial.

Martinez also stated that he tes tified honestly in the instant case and was not offered anything in exchange for his testimony. “The credibility of the witnesses and the wei ght accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.”

Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The

conclusions of the fact finder on i ssues of witness credibility “may only be disturbed on appeal if this Court finds that [the witness’] testimony was ‘inherently incredible, or so contrary to human experience as to render it unworthy of belief.’” Robertson v. Commonwealth , 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth , 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)). The trial co urt specifically found that Mar tinez was credible, stating,

Mr. Martinez is a co-defendant in matters, apparently in this case and some partially related case. I found his demeanor and appearance on the stand, his body la nguage, his response to all the questions he was asked to be one of a truthful person. While his testimony was in some degree self serving, I believe it was also accurate. Because Martinez’s credibility is solely a matter fo r the trial court as the finder of fact, we will not disturb this determination on appeal. His testimony was not inherent ly incredible or so contrary to human experience as to render it unwor thy of belief. Therefore, we find no error in

the trial court’s relian ce upon Martinez’s testimony regarding the incident. Appellant further asserts th at the evidence was insuffici ent to support his conviction because it failed to show that ap pellant’s actions caused James’ in juries. Appellant presents two arguments in support of this contention: he ar gues that the evidence was insufficient to show that James was wounded; in the alte rnative, appellant argues that the evidence was insufficient to show that appellant’s acti ons caused James’ wounds.- 9 - Code § 18.2-51 provides, in pertinent part, “If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall . . . be guilty of a Class 3 felony.” Thus, “[t]o support a conviction for malicious wounding under Code § 18.2-51, the Comm onwealth must prove that the defendant inflicted the victim’s injuries ‘maliciously and with the intent to maim , disfigure, disable or

kill.’” Robertson v. Commonwealth , 31 Va. App. 814, 823, 525 S.E.2d 640, 645 (2000) (quoting Campbell v. Commonwealth , 12 Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) ( en banc )). First, appellant asserts that because no medi cal evidence regarding James’ injuries was introduced, the evidence was insufficient to show that James was wounded at all as a result of the

attack. 3 We find no Virginia authority that require s the testimony of a medical professional or similar expert evidence to show that a victim was wounded, and we decline to adopt such a requirement in this case. Furthermore, based on James’ and Nixon’s testimony regarding James’ injuries, we hold

that the evidence was sufficient to establish th at James was wounded in a manner sufficient to satisfy the requirements of Code § 18.2-51. The Supreme Court of Virgin ia, in interpreting the predecessor statute to Code § 18.2- 51, previously held that to prove the existence of a “wound,”

the Commonwealth must show that the vi ctim’s skin was broken or cut. Johnson v.

Commonwealth , 184 Va. 409, 413, 35 S.E.2d 594, 595 (1945) (affirming the continuing validity

of Harris v. Commonwealth , 150 Va. 580, 142 S.E. 354 (1928)). Similarly, in Harris , the Court

held that a “wound” is defined as “a breach of the skin, or of the skin and flesh, produced by

3 Appellant does not contend that the eviden ce was insufficient to show his intent to maim, disfigure, disable, or ki ll. Therefore, we do not addres s this issue on appeal. Rule 5A:20(c); see also Winston v. Commonwealth , 51 Va. App. 74, 82, 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not includ e an argument in his questions presented (now assignments of error), the Court would not address it on appeal); Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992) (“Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration.”).- 10 - external violence.” 150 Va. at 584, 142 S.E. at 355 (internal quotation omitted). The Court stated that “[w]ithout such a parting of the sk in . . . there can be no wounding . . . . Yet a disruption of the internal skin – as, th at within the mouth . . . will suffice.” Id. Here, James testified that after the attack he believed his nose was broken “because [he] was bleeding.” The trial court co uld reasonably interpret this stat ement to mean that James was bleeding from the nose. In addition, Nixon testif ied that he found James with “a very large pool of blood beside his head,” with blood “coming ou t his nose, his mouth, [and] his eye.” This testimony supports the finding that James was bleeding from the nose, mouth, and eye; as a result, the trial court could reasonably infer that James’ skin in or around his nose, mouth, and eye had been broken or cut. Under Johnson and Harris , these breaks or cuts in the skin are sufficient to show that James suffered a wound, and we hold that the evidence in the instant case

was sufficient to find that James suffered a qualified “wound” under the applicable statutory provision. Appellant next argues that even if Jame s was wounded in the attack, the evidence was insufficient to show that appellant’s actions cau sed James’ wounds. Appellant alleges that the evidence established that he struck James only on ce, at most, and that a single blow could not

have caused the wounds James suffered. A ssuming without deciding that the evidence established that appellant struck James only onc e, we nevertheless find that the evidence was sufficient to prove that appellant , at a minimum, acted as a prin cipal in the sec ond degree in the malicious wounding of James. Appellant misappreh ends the nature of the evidence necessary to support his culpability as a principal in the second degree. “‘It is a well-settled rule that a defendant is guilty as a principal in the second degree if he is guilty of some overt act done knowingly in furtherance of the commission of the crim e, or if he shared in the criminal intent of the principal committing the crime.’” Thomas v. Commonwealth , 279 Va. 131, 156, 688 S.E.2d- 11 - 220, 234 (2010) (quoting McMorris v. Commonwealth , 276 Va. 500, 505, 666 S.E.2d 348, 351 (2008)). Malicious wounding is a Class 3 felony. C ode § 18.2-51. A principal in the second degree to a malicious wounding is punishable in all respects as a principal in the first degree. Washington v. Commonwealth , 43 Va. App. 291, 306, 597 S.E.2d 256, 263 (2004) (“‘Generally, in the case of every felony, a principal in the second degree may be indicted, tried, convicted, and punished in all respects as if a pr incipal in the first degree.’” (quoting Taylor v.

Commonwealth , 260 Va. 683, 687-88, 537 S.E.2d 592, 594 (2000))); see also Code § 18.2-18. In Virginia, “[a] principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance.” Brown v. Commonwealth , 130 Va. 733, 736, 107 S.E. 809, 810 (1921). As for what constitutes “aiding and abetting,” it is clear that mere presence and consent will not suffice. E.g. , Underwood v. Commonwealth , 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978). The defendant’s conduct must consist of “inciting, encouraging, advising or assisting in the [crime].” Frye v. Commonwealth , 231 Va. 370, 389, 345 S.E.2d 267, 280 (1986). It must be shown that the defendant procured, encouraged, countenanced, or approved commission of the crime. Augustine v. Commonwealth , 226 Va. 120, 124, 306 S.E.2d 886, 888-89 (1983).

Rollston v. Commonwealth , 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991). Moreover, “‘[w]hen the alleged accomplice is actually pres ent and performs overt acts of assistance or encouragement, he has communicated to the pe rpetrator his willingne ss to have the crime proceed and has demonstrated that he shares the criminal intent of the perpetrator.’” Id. at 539, 399 S.E.2d at 825-26 (quoting R. Groot, Criminal Offenses and Defenses in Virginia 183 (1984)). Here, the trial court found that appellant hit James as part of the group-beating or immediately before the group-beating began. This finding was supported by Martinez’s- 12 - testimony that appellant struck James as Terry simultaneously struck Ammons. Furthermore, Martinez testified that, a short time later, he saw appella nt standing with a group of men around James. Nixon testified that, during the same time period, he saw a gr oup of men standing around James kicking, stomping, and punching him. This evidence was sufficient to support the trial court’s finding that appellant was present during the malicious wounding of James and performed an overt act of assistance or encourag ement by striking the initial blow against James. Therefore, the evidence was sufficient to sust ain appellant’s convicti on for malicious wounding as a principal in th e second degree in viol ation of Code § 18.2-51. 3. Maiming by Mob Appellant also argues on appeal that th e evidence was insufficient to support his conviction for maiming by mob in violation of Code § 18.2-41 because the evidence was insufficient to prove that the men had asse mbled to achieve a common purpose or action. Code § 18.2-38 defines a “mob” as “[a]ny colle ction of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in [Code] § 19.2-297.1, wit hout authority of law . . . .” We reject appellant’s initial argument that, because the men had already asse mbled at the McDonald’s before the airmen arrived, they could not have “assembled for the pu rpose and with the intention” of committing an act of violence. While “[t]he criterion which distinguishes indi vidual behavior while part of a group from ‘mob’ behavior is assembling for the sp ecific purpose and with th e specific intent” of committing an act of violence, [t]hat is not to say that the purpose for which the group initially came together must have been for the purpose of committing [an act of violence] before a “mob” ma y 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 become part of a group which is moved or controlled by those impulsive and irrational forces which perpetuate mob violence. . . .- 13 - Harrell v. Commonwealth , 11 Va. App. 1, 7, 396 S.E.2d 680, 683 (1990). Thus, the fact that the men may have originally assembled at the McD onald’s for a lawful purpose before the airmen arrived does not preclude the possibility that the group later developed into a mob. 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. See id. at 7-8, 396 S.E.2d at 683 (stating that “[w]hether a group of individuals has been so transformed into a ‘mob’ depends upon the circumstances . . .”). To prove that the group in the instant case assembled into a mob, the Commonwealth must show that the group formed a collective pur pose and intent to commit an act of violence.

Id. Whether a group of individuals ha s 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 focu s individuals toward a common goal or purpose without an express or stated call to join forces.

Id. This Court may consider “the purpose, ci rcumstances, or the setting of the group’s initial assemblage” and also “proof of what transpired after the original assemblage” to determine whether a group assembled into a mob. Id. at 10, 396 S.E.2d at 684-85.

Abdullah v. Commonwealth , 53 Va. App. 750, 675 S.E.2d 215 (2009), is instructive in

the instant case. In Abdullah , this Court found the existenc e of a mob where a group of approximately twelve men followed the victim’s movements so as to intercept him, surrounded the victim as he emerged from an alley, and th en assaulted and battered the victim. 53 Va. App. at 758, 675 S.E.2d at 219. Similarly, in the inst ant case, the group of men emerged from the

McDonald’s en masse , followed James and Ammons, surrounded James and Ammons, and then

beat James and struck and chased Ammons.- 14 - Furthermore, the actions of the group, includ ing those of appellant, suggested that the group acted in concert to attack James and Am mons. While some members approached the airmen, appellant, Terry, Martinez, and others sneaked behind James and Ammons and attacked

them. This coordinated action is sufficient to establish beyond a r easonable doubt that the members of the group, including appe llant, were acting collectively w ith the intent to commit an

act of violence. See Hughes v. Commonwealth , 43 Va. App. 391, 402, 598 S.E.2d 743, 748 (2004) (holding that the evidence was sufficient to sustain the convictions of three brothers for malicious wounding by mob in violation of Code § 18.2-41 where the brothe rs acted in concert to attack, assault, and batter thr ee men, as “[t]heir actions in att acking various individuals clearly indicate[d] that they were acting collectively with the intent to assault”). Finally, although no express or stated call to join forces is necessary to constitute an assembly into a mob, Harrell , 11 Va. App. at 7-8, 396 S.E.2d at 683, in the instant case, Martinez testified that Terry stated, “I’m gonna [sic ] hit the dude, I’m gonna [sic] step on him” immediately before he exited the McDonald’s and other members of the group followed. The trial court could reasonably in fer that the group shared Terry’ s intent to commit an act of violence against the airmen and assembled for that purpose, especially in light of the fact that members of the group then attacked the airmen. Because the evidence, when viewed in the light most favorable to the Commonwealth, showed that the group, including appellant, acte d in concert to attack James and Ammons following Terry’s stated intent to hit at least one of the airmen, the evidence was sufficient to show that a mob had assembled with the purpose and intent of committing an act of violence. Therefore, we hold that the evidence was suffici ent to sustain appellan t’s conviction under Code § 18.2-41.- 15 - B. DOUBLE JEOPARDY Appellant also contends that his c onvictions under both Code §§ 18.2-51 and 18.2-41 violate double jeopardy principles, as he has been twice punished for the same offense. For the reasons that follow, we hold that appellant’s convictions for malicious wounding under Code § 18.2-51 and maiming by mob under Code § 18.2-41 do not violate th e prohibition on double jeopardy. “In reviewing a double jeopardy claim, or a claim based on statutor y interpretation, this

Court shall conduct a de novo review.” Davis v. Commonwealth , 57 Va. App. 446, 455, 703 S.E.2d 259, 263 (2011). The Fifth Amendment to the United States Constitution “guarantees protection against . . . multiple punishments for the same offense.” Payne v. Commonwealth , 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999). “To determine whether two charges constitute the same offense, we

must consider the rule enunciated in Blockburger [v. United States , 284 U.S. 299 (1932)].”

Davis , 57 Va. App. at 455, 703 S.E.2d at 263. [W]here the same act or transac tion constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a f act which the other does not. Gavieres v. United States , 220 U.S. 338, 342 (1911), and authorities cited. . . . “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acqui ttal or conviction under either statute does not exempt the de fendant from prosecution and punishment under the other.” Blockburger , 284 U.S. at 304 (quoting Morey v. Commonwealth , 108 Mass. 433 (1871)). The Blockburger test “‘emphasizes the elements of the two crimes. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithsta nding a substantial overlap in the proof offered to es tablish the crimes.’” Commonwealth v. Hudgins , 269 Va. 602, 605, 611 S.E.2d 362, 364 (2005) (quoting Brown v. Ohio , 432 U.S. 161, 166 (1977)). Moreover, “[i]n- 16 - applying the Blockburger test, we look at the offenses charged in the abstract , without referring to the particular facts of the case under review.” Coleman v. Commonwealth , 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001) (emphasis added). This st andard requires that we view the elements of the offenses generally and conceptually, rather than the elements of the offenses as charged in a specific instance. Thus, “[ a] double jeopardy violation ex ists only if the offenses always require proof of the same elements.” Davis , 57 Va. App. at 456, 703 S.E.2d at 263 (emphasis added). We note at the outset that appellant con cedes that Code § 18.2-41, prohibiting maiming by mob, contains an additional element not found in Code § 18.2-51, namely, the existence of a mob. However, appellant argues that Code § 18.2-51 contains no elements not found in Code § 18.2-41. Thus, the only question before this Court is whether Code § 18.2-51 contains an element not found in Code § 18.2-41, when bot h statutes are viewed in the abstract.

In Paiz v. Commonwealth , 54 Va. App. 688, 698, 682 S.E.2d 71, 76 (2009), this Court stated, [W]e note that malicious wounding by mob, as set out in Code § 18.2-41, is a different offens e from malicious wounding as codified in Code § 18.2-51. Ma licious wounding by mob does not require the Commonwealth to prove malice because it defines the crime as “maliciously or unlaw fully [wounding] any person . . . with intent to maim, disable, disf igure, or kill him . . . .” Code § 18.2-41. The disjunctive term “or,” which separates the terms “maliciously” and “unlawfully,” i ndicates that Code § 18.2-41 only requires proof that the wounding was unlawful. Code § 18.2-41 therefore criminalizes different conduct from malicious wounding under Code § 18.2-51. We find this reasoning persuasive in the instan t case. Code § 18.2-51 codifies two distinct crimes: malicious wounding and unlaw ful wounding. Code § 18.2-51 provides, If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily inju ry, with the intent to maim, disfigure, disable, or kill, he shall . . . be guilty of a Class 3 felony

.- 17 - If such act be done unlawfully but not maliciously , with the intent aforesaid, the offender sh all be guilty of a Class 6 felony

. (Emphasis added). In contrast, Code § 18.2-41 codifies only one crime, providing, Any 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. (Emphasis added). Appellant argues that, contrary to the holding in Paiz , Code § 18.2-51 and Code § 18.2-41 are not distinct because, while Code § 18.2-41 criminalizes maliciously or unlawfully wounding another perso n, so too does Code § 18.2-51, albe it as different classes of felonies. In other words, appellant argues that if one is guilty of ma iming by mob under Code § 18.2-41, one is also necessarily guilty of a violation of Code § 18.2-51, be it either malicious wounding or unlawful wounding. This argument, however, ignores the fact that Code § 18.2-51, when viewed in the abstract, cr eates two distinct crimes with distinct elements, malicious wounding and unlawful wounding, because it impos es different punishments based on the defendant’s intent. As a result, malicious wounding and unlawful wounding, while both codified in Code § 18.2-51, should rightly be considered separate offenses for the purposes of the Blockburger test. The holding of Hudgins , 269 Va. 602, 611 S.E.2d 362, supports this construction. In Hudgins , the defendant was acquitted of robbery in violation of Code § 18.2-58. 269 Va. at 604, 611 S.E.2d at 364. Ten days later, the defendant was indicted for grand larceny from the person in violation of Code § 18.2-95 ba sed on the same underlying conduct. Id. The defendant appealed his conviction, alleging th at grand larceny from the pers on is a lesser-included offense of robbery and therefore his conviction was barred by his earli er acquittal of robbery. Id. The Supreme Court of Virgin ia held that, under the Blockburger test, robbery and grand larceny from the person were not the same offense because each contained an element not found in the other.- 18 - Id. at 606, 611 S.E.2d at 365. The Court held that robbery was distinct from grand larceny from the person because under the common law defini tion of robbery, there must be a taking by

violence or intimidation , unlike larceny. Id. Furthermore, the Court held that grand larceny from the person was distinct from robbery because, under Code § 18.2-95, grand larceny from the person required the taking of a thing with a value of $5 or more , unlike robbery. Id. In so holding, the Supreme Court of Virginia overruled a decision of this Court that the

two offenses contained the same elements. Id. This Court, reasoning that “the reference in Code § 18.2-95 [the grand larceny statute] to the value of the property stolen relate[d] solely to ‘the degree of the potential punishment’ for the offe nse of grand larceny from the person,” had found as a result, “that value is not an element of the offense.” Id. In holding that this was error, the Supreme Court of Virginia stated,

In Apprendi v. New Jersey , [530 U.S. 466, 478 (2000),] the Supreme Court noted that “[a]ny possible distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court . . . as it exis ted during the years surrounding our Nation’s founding.”

* * * * * * * “Put simply,” the Court said, “if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant , that fact – no matter how the State labels it – constitutes an el ement, and must be found by a jury beyond a reasonable doubt.” Sattazahn [v. Pennsylvania] , 537 U.S. [101, 111 (2003)].

Id. at 606-07, 611 S.E.2d at 365. Similarly, in the instant case, malicious w ounding as codified by Code § 18.2-51 contains an element that leads to a more severe punishme nt than that for unlawful wounding, also codified by Code § 18.2-51. Malicious wounding requires pr oof of malice and is punishable as a Class 3 felony. Code § 18.2-51. In cont rast, unlawful wounding requires no showing of malice and is- 19 - punishable as a Class 6 felony. Id. Because different elements must be proven and different penalties are imposed for each offense, ma licious wounding and unlawful wounding must be

treated as distinct offenses c odified together in the same st atute. Thus, because under Code § 18.2-51 the existence of malice is an aggravating factor that increases the penalty for the crime from a Class 6 to a Class 3 felony, Hudgins requires that this Court consider malicious wounding as a distinct crime with distinct elements when applying the Blockburger test. Hudgins , 269 Va. at 606-07, 611 S.E.2d at 365. In contrast, ma iming by mob requires a showing of malice or unlawful conduct; regardless of the defendant’s in tent, both are punishable as a Class 3 felony. Code § 18.2-41. Consequently, Code § 18.2-41 codifies only one crime, maiming by mob, whether it be done with malice or merely unlawfully. As a result, the question in this case is not whether Code § 18.2-41, maiming by mob, and Code § 18.2-51, including both malicious woundi ng and unlawful wounding, contain distinct

elements when viewed in the abstract. Rath er, the question is whet her maiming by mob, as codified by Code § 18.2-41, and malicious wounding , as codified by Code § 18.2-51, contain

distinct elements when viewed in the abstract. As in Paiz , 54 Va. App. at 698, 682 S.E.2d at 76, we hold that malicious wounding contains an additional element not found in maiming by mob. 4 Under Code § 18.2-51, the Commonwealth must prove malice to sustain a conviction for malicious wounding. Under Code § 18.2-41, the Commonwealth need not prove malice to sustain a conviction for maiming by mob; by its plain language, Code § 18.2- 41 criminalizes acts

that are malicious or unlawful. 5 From this analytical perspective, it follows that one who is

4 However, we do not address in this opinion whether unlawful wounding under Code § 18.2-51 contains additional elements not found in maiming by mob under Code § 18.2-41.

5 We reject appellant’s argume nt that his convictions in the instant case nevertheless constituted double jeopardy because he wa s charged with malicious wounding and malicious wounding by mob. Under Coleman , this Court must “look at th e offenses charged in the abstract, without referring to the particular facts of the case under review.” 261 Va. at 200, 539- 20 - guilty of maiming by mob is not necessarily guilty of malicious wounding; an unlawful wounding while part of a mob w ould not satisfy the requireme nts of malicious wounding under Code § 18.2-51, as no malice exists. Accordingl y, we hold that appellant’s convictions for malicious wounding under Code § 18.2-51 and maiming by mob under Code § 18.2-41 do not violate principles of double jeopardy.

III. CONCLUSION For the foregoing reasons, we affirm appellant’s convictions.

Affirmed

.

S.E.2d at 734. In the abstract, the offens e charged, maiming by m ob under Code § 18.2-41, prohibits “maliciously or unl awfully” wounding another person.