Donkor v. Commonwealth

BENTON, Judge, 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.