Com. v. Donkor, Record No. 980259.

• Decision Date: 06 November 1998
• Docket Number: Record No. 980259.
• Citation: 507 S.E.2d 75,256 Va. 443
• Parties: COMMONWEALTH of Virginia v. Kofi DONKOR, a/k/a Rashaan White.
• Court: Virginia Supreme Court

507 S.E.2d 75

256 Va. 443

COMMONWEALTH of Virginia v. Kofi DONKOR, a/k/a Rashaan White.

Record No. 980259.

Supreme Court of Virginia.

November 6, 1998.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.

David B. Hargett (Joseph D. Morrissey; Morrissey, Hershner & Jacobs, on brief), Richmond, for appellee.

Present: All the Justices.

LACY, Justice.

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 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...