COMMONWEALTH OF VA
November 6, 1998
Record No. 980259
COMMONWEALTH OF VIRGINIA
KOFI DONKOR, A/K/A RASHAAN WHITE
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY
FROM THE COURT OF APPEALS OF VIRGINIA
Kofi Donkor was convicted by a jury of
aggravated malicious wounding in violation of Code
Sect. 18.2-51.2. The Court of Appeals reversed his
conviction finding that the trial court erred in refusing to
grant Donkor’s request for a jury instruction on the
lesser-included offense of malicious wounding. Donkor v.
Commonwealth, 26 Va. App. 325, 494 S.E.2d 497 (1998). Because
we conclude that there was no evidence to support Donkor’s
requested instruction, we will reverse the judgment of the Court
of Appeals and reinstate the conviction.
Donkor "fronted" $200 worth of crack
cocaine to Domonic Brown. Brown was to sell the crack cocaine and
return the money to Donkor. Donkor agreed to pay Brown $50 for
selling the cocaine. Brown sold $125 worth of the cocaine and
returned the money to Donkor, but told Donkor that he lost the
remainder of the cocaine and could not pay the remaining $75. In
a confrontation over the remaining $75, Donkor cut Brown’s face.
Donkor was charged solely with aggravated
malicious wounding in violation of Code Sect. 18.2-51.2. At
trial, Dr. Michael K. Rowlett, the maxillofacial surgeon who
treated Brown, testified that the cut on Brown’s face was four to
six inches long, an inch to an inch and a half wide, almost an
inch deep, and required 70 to 80 sutures to close. Donkor claimed
that he acted in self-defense because Brown waved a gun in
Donkor’s face and demanded his money and jewelry. Donkor was
convicted of the charged offense and sentenced to fifty years’
imprisonment. Following the Court of Appeals’ reversal, we
awarded the Commonwealth an appeal.
The sole issue before us is whether the Court
of Appeals was correct in concluding that the defendant was
entitled to a jury instruction on the lesser-included offense of
malicious wounding. Resolving that issue requires application of
the well-established legal principles that jury instructions are
proper only if supported by the evidence, and that more than a
scintilla of evidence is necessary to support a lesser-included
offense instruction requested by the defendant. Buchanan v.
Commonwealth, 238 Va. 389, 409-10, 384 S.E.2d 757, 769
(1989); Hatcher v. Commonwealth, 218 Va. 811, 813-14, 241
S.E.2d 756, 758 (1978).
In this case, the relevant evidence is that
which distinguishes aggravated malicious wounding from the
lesser-included offense of malicious wounding. The crime of
malicious wounding lacks the severity and permanence elements
required for the offense of aggravated malicious wounding. Code
Sects. 18.2-51, -51.2. Thus, to grant the defendant’s
requested instruction on the lesser offense, the record must
contain more than a scintilla of evidence that the injury was not
severe or did not result in significant and permanent impairment.
The record contains no such evidence.
The uncontradicted testimony of Dr. Rowlett
supported the proposition that the injury Donkor inflicted on
Brown was severe. In addition to describing the size and location
of the cut, Dr. Rowlett testified that the cut involved most of
the muscles of the face as well as Brown’s salivary gland.
According to Dr. Rowlett, Brown could have bled to death quickly
if the cut had been on his throat. Dr. Rowlett also testified
that the scar on Brown’s face was permanent. Additionally, Brown
testified that he still had the scar and the jury itself was able
to view the scar. There is no evidence disputing the
Commonwealth’s evidence that the injury was severe and that it
resulted in permanent impairment.
The Court of Appeals, however, concluded that
Donkor was entitled to the lesser-included offense instruction
because the evidence of the severity and permanence of the
impairment "was susceptible to interpretation." Donkor,
26 Va. App. at 331, 494 S.E.2d at 500. In reaching this
conclusion, the Court of Appeals did not rely on any evidence in
the record that contradicted the Commonwealth’s evidence. Rather,
the Court of Appeals relied on its prior case of Bellfield v.
Commonwealth, 11 Va. App. 310, 398 S.E.2d 90 (1990), in which
it suggested that the jury’s ability to weigh and reject the
Commonwealth’s evidence satisfied the requirement that a
defendant’s request for a lesser-included offense instruction be
supported by more than a scintilla of evidence. We have already
rejected such a suggestion.
In LeVasseur v. Commonwealth, 225 Va.
564, 304 S.E.2d 644 (1983), the defendant was charged with
capital murder for a deliberate, premeditated killing in the
course of a robbery. The defendant admitted that he committed the
murder with a deadly weapon. He argued, however, that he was
entitled to a jury instruction on second degree murder as a
lesser-included offense because the jury could reject the
Commonwealth’s evidence that the killing was premeditated and
that the killing occurred in the course of the robbery, thus
leaving only actions amounting to second degree murder. Id.
at 590, 304 S.E.2d at 658. The Court in LeVasseur declined
to adopt the suggestion that the jury’s ability to reject
evidence qualifies as evidentiary support for a defendant’s
lesser-included offense instruction. The Court reiterated the
requirement that such an instruction must be supported by more
than a scintilla of evidence. Id. After reviewing the
record in that case, the Court concluded that while the jury
could have found that the murder was not premeditated because
evidence of voluntary intoxication was introduced at trial, the
defendant was not entitled to the lesser-included offense
instruction because there was no evidence to support a finding
that the robbery was not contemporaneous with the murder. Id.
at 591-92, 304 S.E.2d at 658-59.
In this case, as we have noted, the evidence of
the nature of Brown’s injury is undisputed. There is not a
scintilla of evidence in this record to support a finding that
the injury was not severe or did not result in a significant
permanent impairment. The Court of Appeals erred in treating the
jury’s ability to reject evidence as a substitute for the
evidentiary support required to grant a defendant’s request for
an instruction on a lesser-included offense.
Accordingly, we will reverse the judgment of
the Court of Appeals and enter final judgment reinstating the
Reversed and final judgment.