Neville Clive Shimhue v. Commonwealth

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
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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
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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.
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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
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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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