                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia


MARK SHAWN WALLACE
                                            MEMORANDUM OPINION * BY
v.          Record No. 0795-96-3           JUDGE NELSON T. OVERTON
                                              FEBRUARY 25, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                      Mosby G. Perrow, III, Judge
            Sharon K. Eimer, Senior Assistant Public
            Defender (Office of the Public Defender, on
            brief), for appellant.

            Marla Graff Decker, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Mark Shawn Wallace was convicted by a jury of malicious

wounding and the use of a firearm in the commission of malicious

wounding.    He appeals, contending (1) that the evidence does not

prove malice beyond a reasonable doubt and (2) that the trial

court erred by barring the defendant’s evidence of mitigating

circumstances at the sentencing phase.    We affirm as to the first

issue but remand for resentencing as to the second.

     The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, no recitation of the facts is necessary.

     On appeal, the evidence must be viewed in a light most

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

designated for publication.
favorable to the Commonwealth.     See Higginbotham v. Commonwealth,

216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).    A judgment will

not be disturbed on appeal unless it is plainly wrong or without

evidence to support it.     See Traverso v. Commonwealth, 6 Va. App.

172, 176, 366 S.E.2d 719, 721 (1988).    “Whether malice existed is

a question for the jury.”     Branch v. Commonwealth, 14 Va. App.

836, 841, 419 S.E.2d 422, 426 (1992); Essex v. Commonwealth, 228

Va. 273, 280, 322 S.E.2d 216, 220 (1984).    The defendant’s

conduct and words at the time of the incident and thereafter may

be used to show malice.     See Slusher v. Commonwealth, 196 Va.

440, 445, 83 S.E.2d 719, 721 (1954).

     The record contains ample evidence for the jury to conclude

that Wallace acted with malice.    Wallace shot the victim at a

distance of five to six feet.    He said, “Let’s go,” immediately

afterwards.   He rendered no assistance to the bleeding victim

lying next to him for several minutes after the shooting.      He

wiped off the gun and disposed of it.    When questioned, Wallace

denied seeing or hearing anything.     This evidence clearly

supports the jury’s conclusion that Wallace maliciously wounded

the victim.

     Wallace also argues that he should have been allowed to

present evidence of mitigating evidence at the sentencing phase,

even though the Commonwealth presented no evidence of a criminal

record.   We agree, based on our decision in Pierce v.
Commonwealth, 21 Va. App. 581, 466 S.E.2d 130 (1996).     We




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therefore remand for a new sentencing proceeding to be conducted

under the revised Code § 19.2-295.1, in which the defendant may

introduce evidence relevant to punishment regardless of whether

the Commonwealth presents evidence of a criminal record.

     Accordingly, we affirm the convictions and remand for

resentencing.
                                        Affirmed in part,
                                        reversed in part,
                                        and remanded.




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