Present: All the Justices 

JACKIE G. GREENWAY, JR. 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 961996 JUNE 6, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In a bench trial, Jackie G. Greenway, Jr. was convicted in 

the Circuit Court of Prince George County on two counts of 

involuntary manslaughter arising out of a fatal motor vehicle 

accident. On appeal, Greenway asserts that the trial court erred 

in admitting the opinion testimony of a 12-year-old witness 

concerning the speed of Greenway's vehicle immediately prior to 

the accident. Greenway further asserts that the evidence was not 

sufficient to sustain a finding of criminal negligence necessary 

to support his convictions for involuntary manslaughter. 

Background

 Because the Commonwealth prevailed in the trial court, we 

will view the evidence and all reasonable inferences drawn 

therefrom in the light most favorable to the Commonwealth. Parks 

v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), 

cert. denied, 450 U.S. 1029 (1981). 

 At approximately 11:00 a.m. on May 29, 1994, the Sunday of 

Memorial Day weekend, Greenway drove a blue Ford Bronco south in 

Prince George County on Interstate 95 in heavy traffic. At 

trial, Thomas Hawick testified that he observed Greenway "coming 

up behind me real fast" in the left southbound lane of the 

Interstate. Hawick, who was driving his vehicle at the 65 mile 

per hour speed limit, estimated the Bronco's speed at "eighty, 
ninety miles an hour . . . [m]aybe faster." Hawick believed that 

Greenway's vehicle would strike the rear of his vehicle and so he 

"mashed on the gas." 

 According to Hawick, Greenway then pulled into the right 

lane of the Interstate, passed Hawick's vehicle, and "plowed into 

the vehicle in the right lane." This vehicle, a maroon Bronco, 

"flipped twice, and then it just shot right into the woods." 

Kimberly Dawn Wray, the driver of the maroon Bronco, died at the 

scene of the accident; Angela Nicole Yerovsek, a passenger in the 

maroon Bronco, died at the Medical College of Virginia Hospital 

emergency room where she was transported for treatment of her 

injuries. Hawick further testified that following the collision 

Greenway then "weaved to the left, in the left lane, and he went 

on the shoulder a little bit, then he got back in the right lane, 

and then he was going real fast." 

 Rhonda Thacker testified that on the morning of the accident 

she was stopped for a red light on the Route 301 overpass of 

Interstate 95. Justin Thacker, her 12-year-old son, called her 

attention to Greenway's vehicle, saying that it was going to hit 

the maroon Bronco. Rhonda Thacker estimated Greenway's speed at 

"a minimum of eighty-five" miles per hour. She further testified 

that Greenway's vehicle "was like in the middle . . . not in one 

lane or the other, it was more like in the middle of the white 

[line] that divides the two [lanes]." 

 Justin Thacker testified that he observed Greenway's vehicle 

as it crossed under the overpass "going pretty fast." The 

Commonwealth's Attorney then asked Justin if he had "been in cars 
all [his] life as a passenger." Justin stated that he had. The 

Commonwealth's Attorney then asked Justin if he knew "how fast or 

do you have an opinion of how fast [Greenway's] vehicle was 

going?" Justin gave a contradictory answer, stating, "No, sir, I 

don't. He was going, say, ninety." 

 Greenway's counsel then objected, asserting that Justin was 

incompetent to testify as to the speed of the vehicle. 

Greenway's counsel argued that "a 12-year-old boy, who is not 

even eligible and won't be for four more years to even have a 

driver's license, [could not] estimate speed." The Commonwealth 

responded that such evidence was "totally admissible. The weight 

it would be given is for the Court to determine." The trial 

court ruled that Greenway could "challenge it on cross" and 

permitted the Commonwealth to continue its examination. 

 In response to a question from the Commonwealth, Justin 

confirmed his estimate of Greenway's speed at ninety miles per 

hour. He further testified that Greenway's vehicle was "swerving 

. . . before it got up close to the [maroon] Bronco it would 

. . . try to get in that lane then come back, then go and then 

come back, and then it just hit it." On cross-examination, 

Greenway's counsel asked Justin to describe in detail the 

swerving motion of Greenway's vehicle, but did not further 

question Justin on the issue of speed or the basis for his 

estimate of the speed of Greenway's vehicle. 

 Additional evidence showed that approximately half a mile 

from the accident scene, Greenway's vehicle left the Interstate, 

crossed a gully and service road, entered the front yard of a 
private residence, and struck a tree. When interviewed at the 

scene, Greenway told police investigating the accident that he 

believed he had hit Hawick's vehicle which "got squirrly," and 

when Greenway tried to stop "he must have hit the accelerator" 

instead. Although stating that he was tired and had been awake 

since 3:30 a.m., Greenway did not assert at that time that he had 

fallen asleep while driving. However, when subsequently 

interviewed by a State Police trooper at Southside Regional 

Hospital, Greenway asserted that he had struck Hawick's vehicle 

after falling asleep while driving. 

 At the conclusion of the Commonwealth's evidence, Greenway 

made a motion to strike, asserting that the evidence was 

consistent with the assertion that Greenway had fallen asleep 

while driving. The trial court ruled that "on a prima facie

standard" the evidence showed that Greenway was able to control 

his vehicle to avoid a collision with Hawick's vehicle. Based 

upon that evidence, the trial court rejected the theory that 

Greenway had fallen asleep. 

 Greenway called only one witness, Robert D. Maclin, who 

testified that he saw Greenway's vehicle go "out to pass" and 

strike the maroon Bronco. Although he could not give an opinion 

of the speed of Greenway's vehicle, Maclin stated that he was 

travelling fifty-five to sixty miles per hour and did not 

remember being passed by Greenway or any other vehicle. 

 The trial court overruled Greenway's renewed motion to 

strike, holding that Maclin's testimony failed to "shed any 

light" on the question whether Greenway had fallen asleep. 
Reviewing the evidence of Greenway's excessive speed, erratic 

driving, his ability to avoid hitting Hawick's vehicle, and his 

flight from the accident scene, the trial court convicted 

Greenway of two counts of involuntary manslaughter. After 

receipt of a pre-sentence report, the trial court sentenced 

Greenway to consecutive seven-year prison terms for the 

convictions. 

 Greenway appealed his convictions to the Court of Appeals, 

challenging, inter alia, the trial court's admission of Justin's 

testimony concerning Greenway's speed and the sufficiency of the 

evidence to support the finding that Greenway's conduct amounted 

to criminal negligence. In an unpublished order, the Court of 

Appeals refused Greenway's petition for appeal, holding that 

Justin's testimony was properly admitted under Moore v. Lewis, 

201 Va. 522, 525, 111 S.E.2d 788, 790 (1960). The Court further 

held that the evidence taken in the light most favorable to the 

Commonwealth was adequate to sustain the trial court's finding of 

criminal negligence. King v. Commonwealth, 217 Va. 601, 607, 231 

S.E.2d 312, 316 (1977). We awarded Greenway this appeal. 

Competency of Child Witness to Testify Concerning Speed

 Our decisions follow the mainstream of authority which holds 

that expert knowledge is not required for a witness to be 

considered qualified to make an estimate of speed. As we said in 

Moore: 

 "An estimate of the speed at which an automobile was 

moving at a given time is generally viewed as a matter 

of common observation rather than expert opinion, and 

it is accordingly well settled that any person of 

ordinary experience, ability, and intelligence having 

the means or opportunity of observation, whether an 
expert or nonexpert, and without proof of further 

qualification may express an opinion as to how fast an 

automobile which came under his observation was going 

at a particular time. The fact that the witness had 

not owned or operated an automobile does not preclude 

him from so testifying. Speed of an automobile is not 

a matter of exclusive knowledge or skill, but anyone 

with a knowledge of time and distance is a competent 

witness to give an estimate; the opportunity and extent 

of observation goes to the weight of the testimony." 

Moore, 201 Va. at 525, 111 S.E.2d at 790 (citations omitted). 

 However, "[i]n order to be competent to testify on the 

subject the witness must have had a reasonable opportunity to 

judge the speed of the automobile." Id., 111 S.E.2d at 791. 

Accordingly, before any witness, regardless of age or driving 

experience, is permitted to offer an opinion concerning the speed 

of a vehicle, the record must show both that the witness has 

sufficient knowledge of time and distance to determine speed, and 

that the witness observed the vehicle in motion over a period of 

time and distance adequate to make that determination. Once 

these threshold qualifications are established, the witness' 

degree of knowledge and the duration and quality of the witness' 

observations become matters of credibility, not competence. 

Thus, in Moore we held that the testimony of an adult witness who 

was just learning to drive and had many years experience of 

automobile travel as a passenger "was admissible for such weight 

as the jury thought it should have." Id. 

 We have not previously considered the standard of competency 

required for a child witness to offer an opinion as to the speed 

of a vehicle. In Meade v. Meade, 206 Va. 823, 147 S.E.2d 171 

(1966), we did not reach the question whether a 14-year-old boy 
was competent to offer an opinion as to a vehicle's speed because 

the evidence showed that he had not actually seen the vehicle in 

motion prior to the accident, but had only heard the sound of the 

vehicle. Accordingly, the boy's lack of a reasonable opportunity 

to judge the vehicle's speed, not his youth, was the basis for 

finding his testimony incompetent. Id. at 828-29, 147 S.E.2d at 

175. 

 As a general proposition, however, we have long held that a 

child is competent to testify if he or she possesses the capacity 

to observe, recollect, communicate events, and intelligently 

frame answers to the questions asked of him or her with a 

consciousness of a duty to speak the truth. Cross v. 

Commonwealth, 195 Va. 62, 64, 77 S.E.2d 447, 449 (1953). 

Similarly, we have held that: 

 The competency of a child as a witness to a great 

extent rests in the sound discretion of the trial judge 

whose decision will not be disturbed unless the error 

is manifest. It is the duty of the trial judge to 

determine such competency after a careful examination 

of the child. In deciding the question the judge must 

consider the child's age, his intelligence or lack of 

intelligence, and his sense of moral and legal 

responsibility. 

Hepler v. Hepler, 195 Va. 611, 619, 79 S.E.2d 652, 657 (1954). 

 In the present case, it was not asserted that the child 

witness did not have a reasonable opportunity to observe the 

movement of Greenway's vehicle prior to the accident, or that he 

could not truthfully recollect or communicate what he had 

observed. To the contrary, the defense relied upon Justin's 

testimony that Greenway's vehicle was swerving to support its 

argument that Greenway had fallen asleep while driving. 
Greenway's only objection was that Justin was not competent to 

estimate speed because he was not himself a driver and, thus, 

lacked sufficient knowledge of time and distance to form a 

reliable estimate of speed. 

 Prior to eliciting Justin's estimate of the speed of 

Greenway's vehicle, the Commonwealth's Attorney only asked Justin 

whether he had "been in cars all [his] life as a passenger." 

This was the extent to which the Commonwealth attempted to 

establish that Justin had sufficient knowledge of time and 

distance as these concepts relate to a determination of the speed 

of a motor vehicle. When asked whether he knew or had an opinion 

as to the vehicle's speed, Justin stated that he did not, but 

then offered an estimate of ninety miles per hour. While 

arguably Justin merely intended to say that he could not be sure 

of the exact speed, his testimony was at best equivocal as to how 

he arrived at his estimate. 

 Upon this record, we cannot say that the Commonwealth laid a 

foundation that Justin had sufficient knowledge of time and 

distance to give a reliable estimate of the speed of Greenway's 

vehicle. Accordingly, it was error to admit that evidence. This 

error, however, does not require reversal if the error was 

harmless. 

 Improper admission of evidence does not create reversible 

error when it is merely cumulative of other competent evidence 

properly admitted. Freeman v. Commonwealth, 223 Va. 301, 316, 

288 S.E.2d 461, 469 (1982). Contrary to an assertion made during 

oral argument on appeal by Greenway's counsel, Justin's testimony 
was not the sole basis upon which the trial court could have 

determined the issue of Greenway's speed. Hawick testified that 

Greenway's speed was "ninety miles an hour . . . [m]aybe faster," 

and Justin's mother estimated Greenway's speed at a minimum of 

eighty-five miles per hour. This evidence supports the trial 

court's finding that Greenway was travelling at an "extremely 

high speed." Thus, the evidence improperly admitted was merely 

cumulative and did not deprive Greenway of a fair trial. See

Code § 8.01-678; Rodriguez v. Commonwealth, 249 Va. 203, 208, 454 

S.E.2d 725, 728 (1995). 

Evidence of Criminal Negligence

 In King, 217 Va. at 607, 231 S.E.2d at 316, we defined 

involuntary manslaughter in the operation of a motor vehicle as 

an "accidental killing which, although unintended, is the 

proximate result of negligence so gross, wanton, and culpable as 

to show a reckless disregard of human life." Under this 

definition, involuntary manslaughter in the operation of a motor 

vehicle in this Commonwealth "should be predicated solely upon 

criminal negligence proximately causing death." Id.

 Greenway contends that the Commonwealth's evidence failed to 

establish that he had actual or constructive knowledge that his 

actions would place the lives of others in danger, either because 

the accident resulted from his falling asleep while driving or 

because his negligence was predicated solely upon excessive 

speed. We disagree. 

 The trial court expressly found that the evidence did not 

support a finding that Greenway had fallen asleep while driving. 
 Rather the trial court found that Greenway, though driving 

erratically, was making a conscious effort to maneuver his 

vehicle through traffic. Since the record supports this finding 

of fact, it will be upheld on appeal. Code § 8.01-680. 

 Accordingly, we turn to Greenway's contention that the trial 

court's determination of criminal negligence was improperly 

predicated solely upon his driving at an excessive speed. 

 What distinguishes a speeding violation from the 

misdemeanor of reckless driving, and the misdemeanor 

from the felony of involuntary manslaughter, is the 

likelihood of injury to other users of the highways. 

And the degree of the hazard posed by a speeding 

automobile depends upon the circumstances in each case. 

Mayo v. Commonwealth, 218 Va. 644, 648, 238 S.E.2d 831, 833 

(1977). 

 Greenway's contention is based on the presumption that a 

speed of eighty-five to ninety miles per hour on an interstate 

highway, while constituting civil negligence, does not rise to 

the level of a criminal disregard for the safety of others. The 

fallacy of his contention is that it views speed in isolation 

while ignoring the attendant circumstances of the accident, of 

which speed was merely a factor. 

 In addition to Greenway's excessive speed, the evidence 

showed that Greenway was weaving through heavy holiday weekend 

traffic, straddling the lane markers, that he was aware of a 

near-miss of another motor vehicle, and that he continued 

shifting lanes abruptly rather than adjusting his speed to the 

flow of traffic. Viewed in the context of these circumstances, 

the evidence supports the trial court's finding that Greenway's 
actions showed a reckless disregard for human life constituting 

criminal negligence sufficient to support the convictions for 

involuntary manslaughter. 

 For these reasons, we will affirm the judgment of the Court 

of Appeals. 

Affirmed.