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. 
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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.