Donkor v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia

KOFI DONKOR, S/K/A
KOFI DONKOR, A/K/A RASHAN WHITE
OPINION BY
v. Record No. 0070-97-2 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 13, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
David B. Hargett (Joseph D. Morrissey;
Morrissey, Hershner & Jacobs, on brief), for
appellant.

Michael T. Judge, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Kofi Donkor (appellant) appeals his conviction for

aggravated malicious wounding on the basis that the trial court

erroneously failed to instruct the jury on the lesser-included

offense of malicious wounding. We agree and reverse.

In early February 1996, Domonic Brown obtained $200 worth of

crack cocaine from appellant. Appellant instructed Brown that if

he sold all of the cocaine and returned the $200, appellant would

give Brown $50. Brown sold $125 worth of the cocaine, gave the

money to appellant, but told appellant that he lost the remainder

of the cocaine.

Appellant later met with Brown and demanded the $75 Brown

owed. After searching Brown's pockets, appellant cut Brown on

the face. A neighbor took Brown to the hospital where he was
treated by a maxillofacial surgeon, Dr. Michael Rowlett. The cut

on Brown's face was four to six inches long, an inch to an inch

and a half wide, and almost an inch deep. Dr. Rowlett testified

that Brown could have quickly bled to death had the cut been

lower on Brown's throat and that the laceration required seventy

to eighty sutures to close.

Appellant defended the charge on a theory of self-defense.

He testified that Brown waved a gun in his face and demanded his

money and jewelry. Appellant stated that while Brown pointed the

gun at him, he slashed Brown across the face with a box cutter.

A witness for the defense testified that she saw appellant strike

Brown after Brown pointed a gun at appellant. The Commonwealth's

rebuttal witnesses testified that no gun was discovered on

Brown's person or in the area.
The court discussed jury instructions with counsel off the

record. 1 The court stated that both counsel would later have an
1
Defense counsel proffered several instructions which were
refused. Instruction No. G provided the following:

The defendant is charged with the crime
of malicious wounding. The Commonwealth must
prove beyond a reasonable doubt each of the
following elements of that crime:
(1) That the defendant wounded; and
(2) That such wounding was with
intent to maim, disfigure, disable,
or kill; and
(3) That the act was done
maliciously.
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense as charged, then you shall find the
defendant guilty of malicious wounding.

2
opportunity to put their objections on the record. The court

instructed the jury on the elements of aggravated malicious

If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the first two elements of the
offense charged, but that the act was done
unlawfully, and not maliciously, then you
shall find the defendant guilty of unlawful
wounding.
If [you] find that the Commonwealth has
failed to prove beyond a reasonable doubt
either malicious wounding or unlawful
wounding but you do find beyond a reasonable
doubt that the defendant is guilty of assault
and battery, as defined in another
instruction, upon Domonic N. Brown, then you
shall find the defendant guilty of assault
and battery.
If you find that the Commonwealth has
failed to prove beyond a reasonable doubt any
of the above three offenses, then you shall
find the defendant not guilty.

Instruction No. H provided:

If you have a reasonable doubt as to the
grade, or seriousness, of the offense, then
you must resolve that doubt in favor of the
defendant, and find him guilty of the lesser
offense. For example, if you have a
reasonable doubt as to whether he is guilty
of aggravated malicious wounding or malicious
wounding, you shall find him guilty of
malicious wounding; if you have reasonable
doubt as to whether he is guilty of malicious
wounding or unlawful wounding, you shall find
him guilty of unlawful wounding; if you have
a reasonable doubt as to whether he is guilty
of unlawful wounding or assault and battery,
you shall find him guilty of assault and
battery; if you have a reasonable doubt as to
whether he is guilty at all, you shall find
him not guilty.

(Emphasis omitted).

3
wounding, but did not instruct the jury on any lesser-included

offense. After the jury retired, the following colloquy occurred

in which appellant's objections to the jury instructions were

again addressed:
[COUNSEL FOR COMMONWEALTH]: Instruction F,
G, and H are instructions which -

THE COURT: I think that was the lesser
included offense.

[DEFENSE COUNSEL]: Exactly. I felt that
there was a possibility that the jury may
consider a lesser included offense; however I
believe the Court's position was that it was
an all or nothing scenario, [with respect to
the charge of aggravated malicious wounding]
and as a result, denied my request to allow
us that instruction to be submitted to the
jury. However, I felt that whether or not
there was a lesser included offense was an
issue, that the jury needed to discern, upon
hearing arguments of counsel as well as
evidence from the witnesses.
THE COURT: All right, the Court refused to
grant any instructions on lesser included
offense, because in the Court's view there
was no evidence to support any such
instructions. You either have the
Commonwealth's version that this was [an
aggravated] malicious wounding, based on the
testimony of Mr. Brown, or you believe it was
self-defense, based on the testimony of the
defendant. There's no in between. So there
was no evidence to support giving any lesser
included instruction.

The Commonwealth argues that appellant's claim on appeal is

procedurally barred because he failed to raise the issue in the

trial court. The Commonwealth contends that appellant conceded

the issue of aggravation and agreed with the judge's ruling that

no evidence supported giving the instruction. We disagree.

4
 The error claimed by appellant was properly preserved. Rule

5A:18 provides that "[n]o ruling of the trial court . . . will be

considered as a basis for reversal unless the objection was

stated together with the grounds therefor at the time of the

ruling, except for good cause shown or to enable the Court of

Appeals to attain the ends of justice." The goal of Rule 5A:18

is to avoid unnecessary appeals, reversals and mistrials by

allowing the trial judge to intelligently consider an issue and,

if necessary, to take corrective action. Campbell v.

Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991)

(en banc) (citing Head v. Commonwealth, 3 Va. App. 163, 167, 348

S.E.2d 423, 426 (1986), overruled on other grounds by Cruz v.

Commonwealth, 24 Va. App. 454, 482 S.E.2d 880 (1997) (en banc)).

In Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d

401, 404 (1992) (en banc), this Court held that by tendering an

instruction on a lesser-included offense, the defendant "fully

alerted the trial judge and the Commonwealth" to his argument in

favor of the lesser-included offense instruction in satisfaction
2
of Rule 5A:18. Appellant offered Instruction G on the

lesser-included offense, alerting the trial court to the
2
Citing Jimenez v. Commonwealth, 241 Va. 244, 250, 402
S.E.2d 678, 681 (1991), the Court in Martin noted that the trial
court had an "affirmative duty" to grant the instruction. In
Jimenez, 241 Va. at 250, 402 S.E.2d at 681, the Supreme Court of
Virginia explained that "when a principle of law is vital to a
defendant in a criminal case, a trial court has an affirmative
duty properly to instruct a jury about the matter." In the
present case, we express no opinion about whether the principle
of aggravation was vital to appellant's case.

5
existence of the lesser-included offense and providing the trial

court with the opportunity to take corrective action. In fact,

the trial court declined to grant the instruction on the basis

that the instruction was not supported by the evidence. Like the

defendant in Martin, appellant fully alerted the trial court to

his claim, and the court had an obligation to grant the

instruction if it was supported by the evidence. Martin, 13 Va.

App. at 530, 414 S.E.2d at 404.
Additionally, we reject the Commonwealth's argument that

appellant conceded the issue of aggravation. The record shows

that any concession made by appellant on this issue was not in

the context of his request for jury instructions. Rather, it

arose in argument on his motion to set aside the verdict.

It is well settled that a trial court must instruct the jury

on a lesser-included offense if more than a scintilla of evidence

supports it. Boone v. Commonwealth, 14 Va. App. 130, 132, 415

S.E.2d 250, 251 (1992). Although the Commonwealth prevailed at

trial, we must view the evidence with respect to the refused

instruction in the light most favorable to the defendant. Turner

v. Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d 504, 507 (1996)

(citing Boone, 14 Va. App. at 131, 415 S.E.2d at 251). Based on

that review, we find that the evidence in this case supported an

instruction of malicious wounding and that the trial court's

failure to instruct the jury on that offense was error. See
Moore v. United States, 599 A.2d 1381, 1384-85 and n.5 (D.C.

6
1991) (explaining that the permanence of injury as an element of

mayhem is a question for the jury).

The distinction between aggravated malicious wounding under

Code § 18.2-51.2 and malicious wounding under Code § 18.2-51 is

that aggravated malicious wounding requires proof that "the

victim is thereby severely injured and is caused to suffer

permanent and significant physical impairment." Code

§ 18.2-51.2. The Commonwealth argues that the evidence regarding

Brown's injury was undisputed. As we held in Bellfield v.

Commonwealth, 11 Va. App. 310, 314, 398 S.E.2d 90, 93 (1990),

however, the propriety of giving a lesser-included offense

instruction is not limited to only those cases in which the jury

must find a disputed factual element to render a verdict as

between two offenses of differing grade. Rather, a

lesser-included offense instruction is required "so long as a

factual element must be proved," and "so long as there is

credible evidence to support such an instruction." Id. at

314-15, 398 S.E.2d at 93. Although appellant did not present

evidence contesting the seriousness of Brown's injury, the

Commonwealth's evidence was susceptible to interpretation as to

whether the injury was a "permanent and serious physical

impairment." Code § 18.2-51.2. This determination is the

province of the jury. Bellfield, 11 Va. App. at 314, 398 S.E.2d

at 93; Moore, 599 A.2d at 1384-85 and n.5.

Citing Bennett v. Commonwealth, 236 Va. 448, 470, 374 S.E.2d

7
303, 317 (1988); Frye v. Commonwealth, 231 Va. 370, 388, 345

S.E.2d 267, 280; and Stewart v. Commonwealth, 10 Va. App. 563,

570, 394 S.E.2d 509, 513-14 (1990), the Commonwealth argues that

appellant was not entitled to an instruction on the

lesser-included offense of malicious wounding because his theory

of defense at trial was self-defense. These cases do not hold

that a defendant is entitled only to instructions on his theory

of defense; rather, they hold that a defendant is entitled to

instructions only when they are supported by the evidence.
Bennett, 236 Va. at 470, 374 S.E.2d at 317 (citing Frye, 231 Va.

at 389, 345 S.E.2d at 281); Frye, 231 Va. at 388-89, 345 S.E.2d

at 280 (citing Tuggle v. Commonwealth, 228 Va. 493, 508, 323

S.E.2d 539, 548 (1984), vacated on other grounds, 471 U.S. 1096,

aff'd on remand, 230 Va. 99, 334 S.E.2d at 838 (1985)); Stewart,

10 Va. App. at 570, 394 S.E.2d at 513-14. Similarly, the

Commonwealth's reliance on the maxim that a party's claim can

rise no higher than his or her own evidence is misplaced in the

criminal context.

It remains only to determine whether the court's error was
3
harmless. Non-constitutional error is harmless "'if a reviewing
3
In the context of capital crimes, the United States Supreme
Court has recognized that failure to instruct a jury on a
lesser-included offense can reduce the reliability of a jury
verdict in violation of a defendant's right to due process. Beck
v. Alabama, 447 U.S. 625, 642-43 (1980). The Supreme Court has
not addressed whether failure to give a lesser-included offense
instruction can constitute a due process violation in the context
of non-capital crimes. Beck, 447 U.S. at 638 n.14 (reserving the
issue); Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995)
(cataloguing the split among the federal circuits on whether Beck

8
court can conclude, without usurping the jury's fact finding

function, that, had the error not occurred, the verdict would

have been the same.'" Turner v. Commonwealth, 23 Va. App. 270,

275, 476 S.E.2d 504, 507 (1996) (quoting Davies v. Commonwealth,

15 Va. App. 350, 353, 423 S.E.2d 839, 840 (1992)). "Such a

determination can be made where it is evident from the verdict

that the jury would have necessarily rejected the lesser-included

offense on which it was not instructed." Id. at 276, 476 S.E.2d

at 507. 4
Applying these principles, we cannot say that the jury's

resolution of the issue in this case as reflected in its verdict

compels the conclusion that it necessarily excluded an

alternative resolution of fact that would have supported

conviction on the lesser-included offense of malicious wounding.

See Turner, 23 Va. App. at 276, 476 S.E.2d at 507 (citing Schad

applies in the non-capital context). Because appellant has not
argued that the court's failure to instruct on the
lesser-included offense of malicious wounding rises to the level
of a constitutional violation, we review the error as a violation
of substantive Virginia law under the standard for
non-constitutional error. Turner v. Commonwealth, 23 Va. App.
270, 275-76, 476 S.E.2d 504, 507 (1996).
4
In Turner, 23 Va. App. at 275-77, 476 S.E.2d at 507-08, the
jury convicted the defendant of first degree murder after the
trial court instructed the jury on both first degree murder and
second degree murder. We held that the trial court erroneously
failed to instruct the jury on voluntary manslaughter as
requested by the defendant, but that the error was harmless
because "the jury's resolution of disputed facts [in favor of
first degree rather than second degree murder] compels the
conclusion that it necessarily excluded an alternative resolution
of fact that would have supported the lesser-included offense on
which it was not instructed." Id. at 277, 476 S.E.2d at 508.

9
v. Arizona, 501 U.S. 624, 645-48 (1991)); Moore, 599 A.2d at

1387. The jury was not instructed on any lesser-included

offense. Instead, the jury was confronted with an all-or-nothing

choice which undermines confidence in its verdict. Such a choice

"increases the risk that the jury will convict . . . simply to

avoid setting the defendant free." Spaziano v. Florida, 468 U.S.

447, 455 (1984). Accordingly, we cannot conclude that the jury's

verdict would have been the same without the court's error. For

this reason, we reverse. See Turner, 23 Va. App. at 275, 476

S.E.2d at 507.

Reversed and remanded.

10
Benton, J., concurring.

I join in the opinion except for the harmless error

analysis. I agree the error was not harmless; however, I believe

it suffices to state that, in applying the principles of Lavinder

v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911

(1991) (en banc), we cannot say the jury's resolution of the

issue in this case as reflected in its verdict compels the

conclusion that the jury necessarily excluded an alternative

resolution of fact that would have supported conviction on the

lesser-included offense of malicious wounding.

11