COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Senior Judge Hodges 

Argued at Norfolk, Virginia 

SAMUEL WYNN 

 MEMORANDUM OPINION* BY 

v. Record No. 1804-93-1 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. 

 Samuel Wynn 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. Wynn 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 

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

 I. 

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

Wynn arrived at Circle Lanes Bowling Alley and began bowling with 

 

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

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

Michael Simmons. 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. 

 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." Later during the brawl she was hit by a chair and 

received a laceration on her head. She was unable to identify 
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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. 

 Two employees of the bowling alley testified that after the 

argument occurred between Forrest and Iverson they saw Wynn run 

from the low numbered lanes to the high numbered lanes. During 

the brawl, one of them saw Wynn throw several chairs. 

 Derrick Savage, who bowled with Wynn, was a witness for the 

Commonwealth. Savage testified that he was in the restroom when 

he heard "someone screaming, fight" and heard people running. 

When he came out and stood by the door, Wynn came over to leave. 

 As they were leaving a chair was thrown near them. Wynn threw 

the chair back and left the bowling alley with him. 

 Wynn testified that he was removing his bowling shoes and 

getting ready to leave when he heard someone say, "fight, fight," 

and saw people running toward the snack bar. Wynn testified that 

he "[w]alk[ed] real fast" in order to see what was happening. He 

also testified that he then was hit with a chair and said he 

threw a chair back at the person who had just hit him with a 

chair. He testified that he then left the bowling alley. 
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 II. 

 Code § 18.2-41 provides that "[a]ny 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." 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 Wynn 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 Wynn "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 Wynn was seen moving to 

the area where Simmons punched Forrest as Forrest and Iverson 
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exchanged words. Although Wynn admits that he threw a chair, the 

evidence proved that after the fight began many people threw 

chairs, including people who the Commonwealth concedes were not 

part of the mob. Thus, the fact that Wynn threw chairs does not 

prove beyond a reasonable doubt that he was acting as part of a 

mob. 

 "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 Wynn joined in any mob that may 

have formed. "This evidence is equally, if not more susceptible 

to the construction that [his conduct was] acts of [an] 

individual[] involved in a fray, rather than acts of a mob 

assembled for a criminal purpose." Id. at 11, 396 S.E.2d at 685. 

 Although the evidence would have been sufficient to prove 

individual assaultive conduct, it was insufficient to prove 

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

Therefore, the convictions are reversed and the case is remanded 
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to the circuit court for such further action as the Commonwealth 

may be advised. 

 Reversed and remanded.