Present: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 980259 OPINION BY JUSTICE ELIZABETH B. LACY
November 6, 1998
KOFI DONKOR, A/K/A RASHAAN WHITE
FROM THE COURT OF APPEALS OF VIRGINIA
Kofi Donkor was convicted by a jury of aggravated
malicious wounding in violation of Code § 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 § 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
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required for the offense of aggravated malicious wounding.
Code §§ 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
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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
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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 conviction.
Reversed and final judgment.
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