COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Agee 

Argued at Chesapeake, Virginia 

JORGE MANUEL LEAL 

 OPINION BY 

v. Record No. 1806-00-1 JUDGE G. STEVEN AGEE 

 FEBRUARY 19, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 Michael Morchower (Anthony G. Spencer; 

Morchower, Luxton & Whaley, on briefs), for 

appellant. 

 Margaret W. Reed, Assistant Attorney General 

(Randolph A. Beales, Attorney General; 

Richard B. Smith, Senior Assistant Attorney 

General, on brief), for appellee. 

 Jorge Manuel Leal (Leal) was convicted by a Newport News 

Circuit Court jury of malicious wounding by a mob of John Binns 

(Binns), in violation of Code § 18.2-41.1 On appeal, Leal argues 

that the trial court erred by denying his proffered jury 

instruction on the offense of assault and battery by a mob in 

regards to his alleged involvement in the altercation with 

Binns. Finding the evidence sufficient to support the granting 

 1

 Leal was also convicted by the same jury of assault and 

battery by mob of Teresa Evans, in violation of Code § 18.2-42, 

arising out of the same series of events. This conviction is 

not the subject of this appeal. 
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of the proffered instruction, we reverse the decision of the 

trial court and remand this matter for a new trial. 

I. BACKGROUND 

 Leal testified at trial in his own defense. According to 

his testimony, Leal drove his employees,2 Darrell Ayers, Jerry 

Cox and Rob Conner, to an Econo Lodge where they were renting 

rooms. 

 While Ayers went to his room to retrieve a jacket, Leal 

waited with the others in his van. He noticed a nearby car in 

the motel parking lot with its hood up and a woman leaning under 

the hood. Leal exited the van and walked over to ask the woman, 

Teresa Evans (Evans), if her car needed a jump-start. 

 According to Leal, he returned to his van after Evans told 

him that she did not need assistance. As he returned to the 

van, Ayers came out of his room and he and Evans began yelling 

at each other. Hearing the exchange, Binns, Evans' boyfriend, 

came out to the parking lot from his room and "everything 

started going crazy." The evidence was in conflict as to what 

then occurred.3

2

 The men worked for Leal in his construction business. 

3

 At trial, Evans testified that while she was leaning under 

the hood of her car she heard Ayers yell, "Party time." She 

looked up and saw several men exit a van. Evans attempted to 

retreat to her hotel room, but the four men blocked her path and 

a fifth pulled a two-by-four from the back of the van and 

informed her, "You ain't goin' nowhere, Bitch." Laughing, the 

men began to circle her while pushing her between them. The men 
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 Leal testified that Binns ran toward him, shoved him and 

charged at his waist. Leal said he then grabbed Binns by the 

hair and the intertwined pair "started doing circles." 

According to Leal, he never punched Binns and after the pair had 

"done about six to eight circles," Ayers then appeared and hit 

Binns. Ayers' punch knocked Binns out. Leal released Binns, 

who then fell to the ground. 

 Leal testified that he then leaned against his van to catch 

his breath. He saw Evans and Binns lying on the ground with 

Ayers, now joined by Conner, striking Binns between his head and 

chest. Leal further testified that he then intervened and 

stopped the others from further striking Binns. Leal claimed he 

did not know how Evans ended up on the ground. Leal, Ayers, 

Conner and Cox then left the premises. The four men were all 

indicted on two charges of malicious wounding by a mob. 

 Binns suffered a broken nose, a shattered cheekbone and 

swelling and bruising across most of his upper body; he bled 

proceeded to strike her with the board causing her to fall to 

the ground. While she lay on the ground, Leal held her down by 

her hair and she was subjected to Ayers' kicks. She yelled for 

Binns and lost consciousness. 

 Binns testified that he heard Evans cry for help and he ran 

to the parking lot where he saw four men, including the 

defendant, attacking Evans. When he ran to help Evans, he was 

hit with a wooden object. One of the men then hit Binns in the 

knees, and he fell to the ground. The men, including Leal, then 

began kicking him. 

 Neither a wooden board nor any wooden object was mentioned 

in the police report or in the handwritten statements submitted 

several days after the altercation by Evans and Binns. 
from his ears, nose and mouth for several days. He did not seek 

immediate medical attention because his injuries, though severe, 

were apparently not life-threatening, and he wanted to avoid 

medical bills. Evans' injuries were less severe, and she too 

did not seek medical attention. 

 At the close of the evidence, Leal requested jury 

instructions on assault by a mob in both cases, arguing (1) 

assault by a mob is a lesser-included offense of malicious 

wounding by a mob and (2) the evidence supported the 

instruction.4

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 4

 Leal argued: 

Judge, our position is that we are entitled 

to a lesser included on both of these 

charges . . . in that, this is truly . . . a 

jury issue for the jury to determine. 

[N]umber one, if Mr. Leal was part of a mob, 

but if he is part of a mob, is the injury 

sufficient to meet the definition? Is it 

malicious? And have all of the elements of 

the felony statute been satisfied? Which 

would be, one that he is a member of a mob; 

two, that a member or members caused bodily 

injury; and three, that the bodily injury 

was with intent to maim, disfigure, disable 

or kill. And I think the jury would find 

that there is no such intent, which takes it 

out of the realm of being a felony and would 

reduce it to a misdemeanor. They might find 

that there was a mob, and they might find 

there was bodily injury. But they might 

find that the evidence does not establish 

the requisite intent, and that is a[n] 

option that the jury has. 

* * * * * * * 
 The trial court granted the instruction on assault and 

battery by a mob in regards to the attack on Evans, but refused 

such an instruction regarding the attack on Binns, stating: 

"[I]t's either he didn't do anything to cause injury or he did." 

The jury found Leal guilty of assault by a mob against Evans and 

malicious wounding by a mob against Binns. 

II. ANALYSIS 

 Leal alleges on appeal that the trial judge erred in 

refusing the jury instruction on assault by a mob on the charge 

relating to the altercation with Binns. He contends the offense 

of assault and battery by a mob is a lesser-included offense of 

malicious wounding by a mob and the evidence supported the 

requested instruction. As such, he argues the trial court 

should have instructed the jury on the lesser offense and the 

trial court's failure to do so constitutes reversible error. We 

agree. 

A. A LESSER-INCLUDED OFFENSE 

 When reviewing a trial court's refusal of a proposed jury 

instruction on a lesser-included offense, we must first decide 

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I think the jury can [make the finding that 

the intent was not there]. [T]he jury may 

find that this happened spontaneously, and 

that there was no intent to cause the kind 

of damage that was caused. The jury may 

find that it was somewhat self-defense, and 

that it went too far, that there was never 

the requisite intent to cause the kind of 

damage that was caused. 
whether the proffered instruction presents a lesser-included 

offense. See Sanchez v. Commonwealth, 32 Va. App. 238, 241, 527 

S.E.2d 461, 463 (2000). Whether the offense of assault and 

battery by a mob, Code § 18.2-42, is a lesser-included offense 

of malicious wounding by a mob, Code § 18.2-41, is a question of 

first impression in the Commonwealth. We hold that it is a 

lesser-included offense. 

 "The elements of the greater offense as charged must be 

examined in relation to the purported lesser offense, and where 

every commission of the greater offense is also a commission of 

the lesser offense, a lesser offense may be deemed to exist." 

Id. (citation omitted). "A lesser-included offense is an 

offense which is composed entirely of elements that are also 

elements of the greater offense." Kauffman v. Commonwealth, 8 

Va. App. 400, 409, 382 S.E.2d 279, 283 (1989). 

 For a defendant to be guilty of malicious wounding by a mob 

under Code § 18.2-41, the Commonwealth must prove that (1) a mob 

was formed in which the defendant was a part, (2) the mob caused 

bodily injury, and (3) the mob acted with the malicious "intent 

to maim, disable, disfigure or kill" another. For a conviction 

under Code § 18.2-42, assault and battery by a mob, the 

Commonwealth must prove that (1) a mob was formed in which the 

defendant was a part and (2) the mob committed "simple assault 

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or battery." An assault is any attempt, with force or violence, 

to do some bodily hurt to another, whether from wantonness or 

malice, by means calculated to produce the end if carried into 

execution. See Johnson v. Commonwealth, 13 Va. App. 515, 517, 

412 S.E.2d 731, 732 (1992). "Battery is the actual infliction 

of corporal hurt on another . . . willfully or in anger . . . ." 

Jones v. Commonwealth, 184 Va. 679, 682, 36 S.E.2d 571, 572 

(1946). 

 The requisite intent under Code § 18.2-41 to maliciously 

maim, disable, disfigure or kill is the only difference between 

the two offenses. One cannot be found to have a malicious 

intent "to maim, disable, disfigure or kill" without also having 

an intent to do bodily harm. Therefore, assault and battery by 

a mob is a lesser-included offense of malicious wounding by a 

mob as all of the elements of the former are also elements of 

the latter, which is the greater offense.5

B. ENTITLEMENT TO THE REQUESTED JURY INSTRUCTION 

 Having determined that assault and battery by mob is a 

lesser-included offense of malicious wounding by mob under Code 

§ 18.2-41, we must now determine whether Leal was entitled to an 

instruction on the lesser offense. 

 5

 We have long held, as to individual offenders, that 

assault and battery is a lesser-included offense of malicious 

wounding. See Brown v. Commonwealth, 222 Va. 111, 116, 279 

S.E.2d 142, 145 (1981). 
 "'A defendant is entitled to have the jury instructed[, on 

request,] only on those theories of the case that are supported 

by the evidence.'" Connell v. Commonwealth, 34 Va. App. 429, 

436, 542 S.E.2d 49, 52 (2001) (citation omitted); see also

Delacruz v. Commonwealth, 11 Va. App. 335, 338, 398 S.E.2d 103, 

105 (1990); Stewart v. Commonwealth, 10 Va. App. 563, 570, 394 

S.E.2d 509, 513-14 (1990). "[Our] responsibility in reviewing 

jury instructions is 'to see that the law has been clearly 

stated and that the instructions cover all issues which the 

evidence fairly raises.'" Darnell v. Commonwealth, 6 Va. App. 

485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted). 

 On appeal, although the Commonwealth prevailed at trial, 

when we consider the refusal of the trial court to give a 

proffered instruction, "'the appropriate standard of review 

requires that we view the evidence with respect to the refused 

instruction in the light most favorable to the defendant.'" 

Seegers v. Commonwealth, 18 Va. App. 641, 643, 445 S.E.2d 720, 

722 (1994) (citations omitted). 

 Jury instructions are only proper if supported by the 

evidence. More than a scintilla of evidence is necessary to 

support a lesser-included offense instruction requested by the 

defendant. Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 

75, 76 (1998); Brandau v. Commonwealth, 16 Va. App. 408, 411, 

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430 S.E.2d 563, 564 (1993). To justify the grant of Leal's 

requested instruction on the lesser offense, the record must 

contain more than a scintilla of evidence that the injury to 

Binns was caused by an intent to do bodily harm rather than by a 

malicious intent to "maim, disable, disfigure or kill" Binns. 

 We agree with Leal that there was more than a scintilla of 

evidence on the issue of lack of malicious intent. Therefore, 

Leal was entitled to the lesser-included offense instruction on 

the offense of assault by a mob. "If any credible evidence in 

the record supports a proffered instruction on a lesser-included 

offense, failure to give the instruction is reversible error." 

Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 

(1992) (citation omitted). 

 It was Leal's testimony that Binns, whom neither he nor his 

acquaintances knew beforehand, was injured after Binns 

aggressively approached him, shoved him and again charged him, 

grabbing him by the waist. Leal further testified that he 

grabbed Binns' hair in self-defense and the pair, intertwined, 

went around in circles. As Leal tried to repel Binns, one of 

his acquaintances witnessed the struggle and proceeded to hit 

Binns, knocking Binns to the ground. When the acquaintance and 

another proceeded to strike Binns while he was on the ground, 

Leal said he intervened and stopped further aggression. 

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 From Leal's testimony, the jury could have found, if they 

believed his version of events, that Leal and his acquaintances 

acted only with the intent to do Binns bodily harm in order to 

deter his attack on Leal, and not with the specific, malicious 

intent "to maim, disable, disfigure or kill" him. Leal 

testified that the acts taken against Binns were not planned by 

him or his acquaintances, but were done only after provocation, 

out of a spontaneous intent to protect Leal. Leal's testimony 

leaves the group's intent open to question, the answer to which 

was the province of the jury. With more than a scintilla of 

evidence to support a finding only of intent to do bodily harm, 

Leal was entitled to the instruction on the lesser offense. 

 Citing Bennett v. Commonwealth, 236 Va. 448, 374 S.E.2d 303 

(1988), the Commonwealth argues, however, that Leal was not 

entitled to an instruction on the lesser-included offense of 

assault by a mob because his theory of defense to the charge of 

malicious wounding by a mob at trial was self-defense. The 

Commonwealth misreads Bennett and a prior Supreme Court decision 

relied upon by the Bennett Court, Frye v. Commonwealth, 231 Va. 

370, 345 S.E.2d 267 (1986). Neither case stands for the 

proposition that a defendant is only entitled to instructions on 

his theory of defense. Rather, both cases hold entitlement to a 

requested instruction turns on whether there is evidence to 

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support the instruction. We previously addressed this same 

argument by the Commonwealth in a similar setting in Donkor v. 

Commonwealth, 26 Va. App. 325, 494 S.E.2d 497, vacated on other 

grounds, 256 Va. 443, 507 S.E.2d 75 (1998). 

Citing Bennett v. Commonwealth, 236 Va. 448, 

470, 374 S.E.2d 303, 317 (1988); Frye v. 

Commonwealth, 231 Va. 370, 388, 345 S.E.2d 

267, 280 (1986) . . ., the Commonwealth 

argues that appellant was not entitled to an 

instruction on the lesser-included offense 

of malicious wounding because his theory of 

defense at trial was self-defense. These 

cases do not hold that a defendant is 

entitled only to instructions on his theory 

of defense; rather, they hold that a 

defendant is entitled to instructions only 

when the evidence supports them. Bennett,

236 Va. at 470, 374 S.E.2d at 317 (citing 

Frye, 231 Va. at 389, 345 S.E.2d at 281); 

Frye, 231 Va. at 388-89, 345 S.E.2d at 280 

(citing Tuggle v. Commonwealth, 228 Va. 493, 

508, 323 S.E.2d 539, 548 (1984), vacated on 

other grounds, 471 U.S. 1096, 105 S. Ct. 

2315, 85 L.E.2d 835, aff'd on remand, 230 

Va. 99, 334 S.E.2d at 838 (1985)) . . . . 

Id. at 331-32, 494 S.E.2d at 500.6

 We find the Supreme Court's recent decision in Commonwealth 

v. Vaughn, ___ Va. ____, ___ S.E.2d ___ (2002), distinguishable 

from the case at bar. The defendant in Vaughn was convicted of 

the unlawful wounding of the victim who was shot in the back and 

ankle. On appeal, the defendant claimed the trial court erred 

in refusing his proffered jury instruction on the 

 6

 We note the significant contrast to the defendant's claims 

in Bennett and Frye, where each defendant denied his presence or 

participation in the acts underlying the crimes charged. 
lesser-included offense of assault and battery. The defendant 

contended he was entitled to the instruction because he 

testified that he fired at the victim in an attempt to frighten 

him away, aiming at the ground in front of the victim. 

 The Supreme Court affirmed the trial court's refusal to 

give the lesser offense instruction, because there was not "more 

than a scintilla" of affirmative evidence to support the 

requested instruction unless the jury ignored uncontroverted 

facts to the contrary. The jury's ability to reject 

uncontroverted evidence may support an acquittal, but it does 

not supply affirmative evidence to support a jury instruction on 

the lesser-included offense. The Supreme Court reasoned that 

when there is uncontroverted evidence the jury must reject in 

order to convict the defendant of the lesser offense, a 

scintilla of affirmative evidence does not exist and a jury 

instruction on a lesser-included offense is not warranted. Id.

at ___, ___ S.E.2d at ____. 

 In Vaughn, the jury would have had to ignore the 

uncontroverted evidence of the victim's back wound in order to 

find the defendant only committed assault and battery. 

Accordingly, there could not be "more than a scintilla" of 

affirmative evidence to support the lesser-included offense 

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instruction where its foundation required the jury to reject 

uncontroverted facts. Id.

 In the case at bar, however, the Commonwealth did not 

present any uncontroverted evidence that would have to be 

rejected in order to find the defendant guilty of the lesser 

offense of assault and battery by a mob. Leal did not contest 

that a confrontation between himself and Binns occurred, that a 

group was involved, and that blows were struck against Binns 

resulting in injury. Only the intent behind these actions was 

in question. Moreover, the instant case does not involve a 

firearm, which was present in Vaughn. There is no 

uncontroverted fact for the jury to ignore, as in Vaughn, in 

order to convict on the lesser-included offense. 

 Leal's evidence was not incredible as a matter of law; 

therefore, the assessment of the credibility of Leal's evidence 

was for the jury. The jury's decision must be accomplished in 

the context of instructions concerning the law applicable to any 

reasonable construction of the facts advanced by the parties in 

the case. However, here, the jury was unable to perform this 

task because the trial court refused the requested instruction. 

That refusal was error. 

 Our decision in Boone, 14 Va. App. 130, 415 S.E.2d 250, is 

applicable to the matter at bar. In Boone, the trial court 

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erred when it gave a malicious wounding instruction but refused 

a requested assault and battery instruction. We held: 

The jury was instructed that the 

Commonwealth had the burden of proving 

beyond a reasonable doubt that defendant 

wounded [the victim] with the "intent to 

maim, disfigure, disable or kill" him. They 

were not instructed, however, that defendant 

could be convicted of a lesser offense in 

the absence of this intent. The jury was 

thus "given the impermissible choice of 

drawing the conclusion" either that 

defendant intended to maim, disfigure, 

disable, or kill [the victim], with or 

without malice, and was thus guilty of 

either malicious or unlawful wounding, or 

that he did not possess this intent "and was 

not guilty of any offense." [Accordingly,] 

[t]he jury was denied the opportunity to 

assess the evidence as it related to assault 

and battery, an offense that may be 

accompanied by malice, but does not require 

the intent to maim, disfigure or kill. 

Id. at 133-34, 415 S.E.2d at 252 (internal citation omitted). 

 If the jury believed Leal's testimony, it could have 

concluded that the mob lacked the specific intent to "maim, 

disable, disfigure or kill" Binns and acted only with the intent 

to do bodily harm, whether with or without malice. Thus, 

"[c]redible evidence was before the jury that, if believed, 

supported an instruction on assault and battery." Id. at 134, 

415 S.E.2d at 252. It was error not to grant the proffered 

instruction. 

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 This error was not harmless. "[W]here it is impossible to 

determine from the verdict whether the jury would have 

necessarily rejected a lesser-included offense on which it was 

not instructed, error in refusing to instruct on that offense is 

not harmless." Turner v. Commonwealth, 23 Va. App. 270, 276, 

476 S.E.2d 504, 507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 

(1998). 

 Accordingly, we reverse the judgment of the trial court and 

remand this case for a new trial if the Commonwealth be so 

advised. 

Reversed and remanded. 

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