                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia


NEVILLE CLIVE SHIMHUE
                                         MEMORANDUM OPINION * BY
v.        Record No. 1736-97-2        JUDGE JERE M. H. WILLIS, JR.
                                              JUNE 30, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge
          William H. Purcell, III (Steven K. Webb;
          Phillips, Webb, & Wallerstein, P.C., on
          brief), for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     On appeal from his bench trial conviction for malicious

wounding, Neville Clive Shimhue contends that the evidence is

insufficient to prove:   (1) that he possessed the requisite

intent to maim, disfigure, disable or kill; and (2) that he acted

with malice.   We affirm the judgment of the trial court.

                                I.
          On appeal, we review the evidence in the
          light most favorable to the Commonwealth,
          granting to it all reasonable inferences
          fairly deducible therefrom. The judgment of
          a trial court sitting without a jury . . .
          will not be set aside unless it appears from
          the evidence that the judgment is plainly
          wrong or without evidence to support it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1987) (citations omitted).

     On November 15, 1996, Richmond police officers responded to

a call that a man had been shot in an apartment building.   Leslie

Turner had telephoned the police after awaking in his bed around

3:00 a.m and finding that he had been shot in his right leg.     His

injuries resulted in the amputation of his leg.   Two holes were

seen in the ceiling of Turner's apartment, which lay directly

beneath Shimhue's.
     Upon their arrival, the officers encountered Shimhue coming

out of the building, carrying broken pieces of glass.   Shimhue

told the officers, "it's in here," and led them into his upstairs

apartment.   The officers observed an "automatic, assault-type

firearm" on Shimhue's bed.    Two shell casings were recovered from

the bedroom and two holes were seen in the floor.   Shimhue told

them that he had engaged in intercourse with a woman identified

only as "Carmen," that when he requested that she leave before

his girlfriend arrived, an argument ensued, and that he fired the

weapon to scare her out of his apartment. 1

                                 II.

     We first consider whether the evidence sufficiently proved
     1
      At the time of his initial statement, Shimhue was unaware
that he had injured Turner. Thereafter, Shimhue told the
officers two different versions of the events surrounding the
shooting. He stated (1) that the gun fell over and went off, and
(2) that the gun had discharged accidentally during a struggle
with Carmen. The trial court found his first statement to be the
most credible, noting that it was the only version that accounted
for two shots being fired, and that it was given before Shimhue
realized Turner had been injured.




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that Shimhue possessed the requisite intent to sustain his




                              - 3 -
conviction for malicious wounding, the specific intent to maim,

disfigure, disable or kill.    Code § 18.2-51. Intent is the

purpose formed in a person's mind which may, and often must, be

inferred from the facts and circumstances in a particular case.

The state of mind of an accused may be shown by his acts and

conduct.    The fact finder may infer that a person intends the

immediate, direct, and necessary consequences of his voluntary

acts.

Rivers v. Commonwealth, 21 Va. App. 416, 421, 464 S.E.2d 549, 551

(1995) (citations and quotation marks omitted).

        Generally, whether the evidence is sufficient to support a

conviction for malicious or unlawful wounding is a question for

the trier of fact.     See Hughes v. Commonwealth, 18 Va. App. 510,

519, 446 S.E.2d 451, 457 (1994) (en banc); Haywood v.

Commonwealth, 20 Va. App. 562, 565-66, 458 S.E.2d 606, 608

(1995).    The trial court found that:   "Shimhue voluntarily fired

the gun for the purpose of encouraging Carmen to leave the

apartment.    Obviously, one immediate result of firing a weapon is

that a person could be shot; therefore, the intentional wounding

of Mr. Turner is inferred from the defendant's act."

        Shimhue contends that the trial court improperly

characterized the intent with which he injured Turner.     He

acknowledges that under the doctrine of transferred intent, "if

an accused shoots at another intending to kill him, and a third

person is killed because of the act, that same intent follows the



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bullet and is transferred to the killing of the third party, even

if such death was accidental or unintentional."     Riddick v.

Commonwealth, 226 Va. 244, 248, 308 S.E.2d 117, 119 (1983)

(citations omitted).     See Long v. Commonwealth, 8 Va. App. 194,

379 S.E.2d 473 (1989).    However, Shimhue argues that he

discharged the automatic weapon into the floor of his upstairs

apartment only to impress upon Carmen his desire that she leave,

and that the wounding of Turner was, therefore, the result of his

intent to frighten Carmen, and not the result of an intent to

maim, disfigure, disable or kill her.
     This case does not turn on the doctrine of transferred

intent.   In David v. Commonwealth, 2 Va. App. 1, 340 S.E.2d 576

(1986), the defendant confronted four individuals.     Id. at 2, 340

S.E.2d at 577.    He fired a single shot from a handgun into the

cement walk two feet from where they were standing.     Id.   The

bullet ricocheted off the sidewalk into the foot of one of the

individuals.     Id.
     The issue in David, as here, was whether the evidence proved

the specific intent to maim, disfigure, disable or kill.      In

finding sufficient proof of "intent," we noted that:
          The Supreme Court of Virginia has declared
          that "one who deliberately drives a car into
          a crowd of people at a high speed, not
          intending to kill or injure any particular
          person, but rather seeking the perverse
          thrill of terrifying them and causing them to
          scatter, might be convicted of second-degree
          murder if death results." Essex v.
          Commonwealth, 228 Va. 273, 281, 322 S.E.2d
          216, 220 (1984). There is little distinction
          between wilfully or purposefully driving an



                                 - 5 -
            automobile into a crowd for thrills, and
            wilfully or purposefully firing a bullet in
            furtherance of one's acts of intimidation
            onto a cement drive two feet from where four
            persons are standing. In both cases, it may
            be inferred from the acts wilfully and
            purposefully done that the actor intended to
            cause death or great bodily harm.


Id. at 3-4, 340 S.E.2d at 577.

     We find the evidence sufficient to support the trial court's

finding that Shimhue possessed the specific intent required to

convict him of malicious wounding.       After the eruption of an

argument between himself and Carmen, Shimhue intentionally twice
fired a powerful weapon into the floor of his upstairs apartment

at three o'clock in the morning.    He must have known that the

repeated discharge of the weapon into the floor of his upstairs

apartment at a time when the building's occupants should be home

could result in severe bodily harm or death.      Such conduct was

inherently dangerous and imposed grave risk to anyone in the

vicinity.    Cf. Code § 18.2-279 (penalizing the discharge of a

firearm within a dwelling house).       The fact finder was entitled

to infer from this that Shimhue intended the direct and probable

consequences of his act.

                                 III.

     Shimhue next contends that his conduct warrants conviction

only for unlawful wounding, a lesser-included offense of

malicious wounding.   He argues that the evidence does not support

the finding that he shot Turner with malice.       See Code § 18.2-51.

 We disagree.



                                 - 6 -
     Malice, express or implied, "'means any wrongful act done

wilfully and purposefully.'"   Hernandez v. Commonwealth, 15 Va.

App. 626, 631, 426 S.E.2d 137, 140 (1993) (citation omitted).
          "It is not confined to ill-will towards one
          or more individual persons, but is intended
          to denote an action flowing from any wicked
          and corrupt motive, a thing done malo animo,
          where the fact has been attended with such
          circumstances as carry in them the plain
          indications of a heart regardless of social
          duty, and fatally bent on mischief."


Thomas v. Commonwealth, 186 Va. 131, 139, 41 S.E.2d 476, 480

(1947) (citation omitted).
     Malice may be "inferred from acts and conduct which

necessarily result in injury," Dawkins v. Commonwealth, 186 Va.

55, 61, 41 S.E.2d 500, 503 (1947), and may be "implied by law

from any willful, deliberate and cruel act against another,

however sudden."   Fletcher v. Commonwealth, 209 Va. 636, 640, 166

S.E.2d 269, 273 (1969).   See Essex, 228 Va. at 280-81, 322 S.E.2d

at 220.   Whether the defendant acted with malice is a question

for the fact finder.   Doss v. Commonwealth, 23 Va. App. 679, 685,

479 S.E.2d 92, 95 (1996) (citation omitted).    "In making the

determination whether malice exists, the fact-finder must be

guided by the quality of the defendant's conduct, its likelihood

for causing death or great bodily harm, and whether it was

volitional or inadvertent . . . ."     Essex, 228 Va. at 282, 322

S.E.2d at 221.

     We affirm the trial court's finding of malice.    The wilful

and deliberate act of firing a deadly weapon supports an



                               - 7 -
inference of malice.   See Doss, 23 Va. App. at 686, 479 S.E.2d at

96.   With full knowledge that Turner resided below his apartment,

Shimhue deliberately fired two shots from a powerful weapon into

the floor.   Considering the "nature and degree of provocation,"

Carmen's anger at being requested to leave after engaging in

intercourse with Shimhue, in relation to the response evoked, the

firing of the weapon, the trial court was entitled to reject the

argument that Shimhue's actions resulted from emotion or heat of

passion, rather than from malice.      See Miller v. Commonwealth, 5

Va. App. 22, 25, 359 S.E.2d 841, 842 (1987).

      Shimhue cites David v. Commonwealth, 2 Va. App. 1, 340

S.E.2d 576 (1986), and Strickland v. Commonwealth, 16 Va. App.

180, 428 S.E.2d 507 (1993), for the proposition that his conduct

was not malicious.   In David, the defendant appealed from his

conviction for unlawful wounding.   In Strickland, the defendant

appealed from his conviction for unlawfully discharging a firearm

within an occupied building, in violation of Code § 18.2-279.      In

neither appeal was "malice" at issue or addressed.     Thus, his

reliance upon those decisions is misplaced.

      The judgment of the trial court is affirmed.
                                                           Affirmed.




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