COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Senior Judge Hodges 

Argued at Norfolk, Virginia 

MICHAEL SIMMONS 

 MEMORANDUM OPINION* BY 

v. Record No. 1805-93-1 JUDGE JAMES W. BENTON, JR. 

 JUNE 20, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Nelson T. Overton, Judge 

 Lyn M. Simmons for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

 General (James S. Gilmore, III, Attorney 

 General, on brief), for appellee. 

 Michael Simmons was convicted of three violations of Code 

§ 18.2-41 for being a member of a mob which injured with the 

intent to maim Barbara Steele, Steven Forrest, and Lori Clark. 

He was also convicted of two violations of Code § 18.2-42 for 

being a member of a mob which assaulted Dennis Clark and Robert 

Wilkes. Simmons contends on appeal that the evidence was 

insufficient to prove that either a mob existed or that, even if 

a mob existed, he was a member of a mob. Because we agree that 

the Commonwealth failed to prove beyond a reasonable doubt that 

Simmons was a part of a mob, we reverse his convictions. 

 I. 

 The evidence proved that at 11:30 p.m. on February 13, 1993, 

Simmons arrived at Circle Lanes Bowling Alley and began bowling 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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with five of his high school friends, including Allen Iverson and 

Samuel Wynn. They bowled in lanes nine and ten. The bowling 

alley was very busy and crowded that evening. 

 At midnight, Iverson was in the area of the snack bar. Near 

the snack bar, a group from Poquoson, Virginia was bowling. The 

bowlers from Poquoson had arrived at 7:30 p.m. and were bowling 

on lanes twenty-nine and thirty. This group included Steven 

Forrest, Lori Clark, and four other persons. As Iverson stood 

nearby, the Poquoson bowlers, with the exception of one who was 

bowling, were sitting at a table in front of the snack bar 

drinking beer. 

 Dennis Clark, who was bowling two lanes away with Barbara 

Steele, Robert Wilkes and two other people, testified that he saw 

a "confrontation between a white male [, Forrest] and a black 

male [, Iverson]." He could not hear the conversation and did 

not see them touch each other. He said both men initially were 

sitting at a table. He then saw Iverson standing about three 

feet from Forrest. Clark testified that he did not continue to 

watch the men. Shortly after he sat down and was facing his 

bowling lane with his friends, he saw "twenty to thirty" black 

males throwing chairs and moving from lower numbered lanes toward 

the higher numbered lanes. During the ensuing brawl Clark was 

struck in the head with a chair. 

 Forrest testified that Iverson was six feet away and then 

approached within two or three feet of their table cursing at 
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them without cause. He testified that when he stood to tell 

Iverson that they "had no problem with him," Iverson backed away 

from him. Forrest testified that as Iverson stepped back someone 

other than Iverson hit him on the head. Forrest said that when 

he turned to see who hit him he saw approximately twenty-five 

persons coming from the other end of the bowling area. He said 

that most of the people were running as they approached and some 

were walking at a fast pace. Forrest said he and his friends 

were attacked and chairs were thrown. Forrest also testified 

that at the height of the ensuing fight "most of the people 

involved were throwing chairs," including himself and his 

friends. He testified that Simmons hit him with a chair. 

 Lori Clark testified that as soon as Forrest stood Simmons 

ran from the control counter area and struck Forrest with his 

fist on the back of the head. She testified that Simmons then 

"faded back . . . he didn't stick around." When the fighting 

began, Clark was struck by a chair and injured. After she was 

hit by a chair she threw a chair. She did not know who hit her. 

 Barbara Steele, who was bowling in lane twenty-seven with 

Dennis Clark, testified that the bowling alley was very crowded. 

 She noticed a "commotion going on" near the lane where she was 

bowling. She testified that when she saw people moving toward 

the commotion she went to Iverson and asked "why does this have 

to be racial." She also testified that she saw Simmons nearby. 

She did not see Simmons do anything. Later she was hit by a 
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chair and received a laceration on her head. She was unable to 

identify her assailants. 

 Robert Wilkes, who was bowling with Clark and Steele in the 

lanes near the Poquoson group, saw Iverson and Forrest standing 

and they "weren't exactly exchanging pleasantries." During the 

discussion, which he could not hear, he saw a person other than 

Iverson punch Forrest. Shortly afterwards, a brawl began and 

people began throwing chairs. As Wilkes went to assist one of 

his friends he was knocked unconscious. 

 Simmons testified in his defense that he and his friends 

arrived at 10 p.m. Around midnight, Iverson went to get food. 

As Simmons was bowling, he saw Iverson and Forrest "gesturing 

back and forth." Although he could not hear them, he surmised 

"[t]hat something might break out if somebody didn't separate 

them." He testified that he ran to "get Iverson out of there." 

He further testified that as he got close to them he saw Forrest 

swing a chair at Iverson. Simmons testified that Forrest then 

swung a chair at him. He blocked the chair and punched Forrest. 

 He testified that he then moved away but remembered that he had 

bowling shoes on his feet. Simmons said that he ran to return 

the bowling shoes. He testified that after he got his shoes, he 

saw Forrest again and threw a chair which hit Forrest. He said 

that he then left the bowling alley. 

 II. 

 Code § 18.2-41 provides that "[a]ny and every person 
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composing a mob which shall maliciously or unlawfully shoot, 

stab, cut or wound any person, or by any means cause him bodily 

injury with intent to maim, disable, disfigure or kill him, shall 

be guilty of a Class 3 felony." In addition, Code § 18.2-42 

provides that "[a]ny and every person composing a mob which shall 

commit a simple assault or battery shall be guilty of a Class 1 

misdemeanor." Mob is defined as "[a]ny collection of people, 

assembled for the purpose and with the intention of committing an 

assault or a battery upon any person and without authority of 

law." Code § 18.2-38. 

 The Commonwealth argues that the evidence proved that a mob 

had formed. However, we need not decide this question because 

even if the evidence proved that some of the people in the 

bowling alley assembled in a manner to constitute a mob, no 

evidence proved that Simmons was a member of that mob. Assuming 

arguendo that a mob had formed, the Commonwealth had the burden 

of proving beyond a reasonable doubt that Simmons "was a member 

of a mob that was assembled for the purpose and with the 

intention to commit an unlawful assault or battery." Harrell v. 

Commonwealth, 11 Va. App. 1, 6, 396 S.E.2d 680, 682 (1990). 

 Reviewing the evidence in the light most favorable to the 

Commonwealth, the testimony proved that Simmons punched Forrest 

as Forrest and Iverson exchanged words. Although Simmons 

contends that Forrest hit him first with a chair, that testimony 

is disputed. Even if Simmons was at fault in the confrontation, 
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no evidence establishes that this confrontation was part of any 

mob action. 

 "Not every incidence of group violence or assaultive conduct 

which involves a number of people collectively involved in 

assaultive conduct constitutes a 'mob' assault and battery." 

Harrell v. Commonwealth, 11 Va. App. 1, 7, 396 S.E.2d 680, 683 

(1990). If the evidence merely proved that individuals were 

"independently reacting adversely and violently" to a situation, 

the proof will not suffice to establish that the individuals were 

part of a mob. Id. at 10, 396 S.E.2d at 684. 

 Although a brawl ensued after the patrons of the bowling 

alley watched Iverson argue with Forrest and Simmons punch 

Forrest, no evidence proved that Simmons joined in any mob that 

may have formed. At best, the Commonwealth proved that Simmons 

hit Forrest and threw more than one chair. "There is no chain of 

circumstances establishing, 'to the exclusion of any other 

rational hypothesis and to a moral certainty,' that . . . 

[Simmons' conduct] 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 (citation omitted). 

 Although the evidence would have been sufficient to prove 

individual assaultive conduct, it was insufficient to prove 

beyond a reasonable doubt that Simmons acted as a part of a mob. 

 Therefore, the convictions are reversed and the case is remanded 

to the circuit court for such further action as the Commonwealth 
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may be advised. 

 Reversed and remanded.