Virginia Assault Battery Mob Criminal Street Gang 18.2-42 18.2-46.2

Virginia Assault Battery Mob Criminal Street Gang 18.2-42 18.2-46.2

Hamilton v. Commonwealth, 279 Va. 94; 688 S.E.2d 168; January 15, 2010

The act of assembling with that specific purpose and intent distinguishes mob behavior from merely individual behavior while part of a group. Once an assembled group becomes a mob under 18.2-38, "every person composing the mob becomes criminally culpable even though the member may not have actively encouraged, aided, or countenanced the act" of assault or battery. The term "mob" is defined as any collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person. The statutory definition of a mob requires that the act of assembling be done for a specific purpose and with a specific intent - to commit an assault or a battery. Rather, it is possible that individuals who are lawfully assembled may become members of a "mob" without great deliberation. Whether a group of individuals becomes a "mob" depends upon the circumstances and no particular words or express agreements are required to effect a change in a group's purpose or intentions. Thus, "criminal accountability flows from being a member of the mob, regardless of whether the member aids and abets in the assault and battery.

Defendant's participation in the assault, which he concedes occurred first, constituted active participation in the gang, while his role in the mob that attacked two others served as the predicate criminal acts committed for the benefit of the gang. There was distinct evidence establishing both Defendants' active participation in the gang and his commission of a predicate criminal act for the benefit of the gang.

Because defendant was a part of the mob that attacked the victims, he is "criminally culpable" even though he may not have actively encouraged, aided, or countenanced the assaults. In order to sustain a conviction of assault or battery by mob under Virginia Code 18.2-42, the evidence mustestablish that the accused was a member of a mob and that the mob committed simple assault or battery.

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