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. 
- 2 - 

 

(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 

 1At 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. 
- 3 - 

that Shimhue possessed the requisite intent to sustain his 
- 4 - 

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 
- 5 - 

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 
- 6 - 

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. 
- 7 - 

 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 
- 8 - 

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.