COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bray and 

 Senior Judge Overton*

Argued at Norfolk, Virginia 

JESOVHA OCTAVIOUS SEABORN, S/K/A 

 JESOVOHA OCTAVIUS SEABORN 

 MEMORANDUM OPINION** BY 

v. Record No. 2504-97-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 2, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John E. Clarkson, Judge 

 I. Lionel Hancock, III (Bohannon, Bohannon & 

Hancock, P.C., on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 A jury convicted Jesovha Seaborn (defendant) of first-degree 

murder and a related firearm offense. On appeal, he complains 

that the trial court erroneously ruled a defense witness 

incompetent to testify. Finding no error, we affirm the 

convictions. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 

 *Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 

 **Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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 Defendant's first trial on the subject indictments ended in 

a mistrial when the jury was unable to reach a verdict. The 

instant prosecution was commenced several months later and 

resulted in the disputed convictions. During both proceedings, 

defendant offered the testimony of Christopher Sherrod (witness), 

a child allegedly nearby at the time of the offenses. At the 

earlier prosecution, the trial court declared the witness 

incompetent following a voir dire which included a proffer of his 

testimony. A transcript of these proceedings was made a part of 

the voir dire at the instant trial, together with a second 

proffer of the witness' testimony, and resulted in a similar 

ruling. Defendant appeals, arguing only that the court 

erroneously declared the child an incompetent witness. 

 During voir dire at the first trial in March, 1997, the 

witness answered "nine" when asked his age, but later provided a 

birthdate of January 31, 1986. He testified that he was eight at 

the time of the offenses, December 15, 1995, but then admitted 

uncertainty. The child was unable to name his teacher from the 

immediately preceding school year or particulars of an earlier 

meeting with defendant's counsel. Questioned, "What is a lie?," 

he initially answered, "a lie," and, upon further inquiry, 

stated, "I don't know." He acknowledged that he did not 

"understand the word truth." 

 When queried relative to the subject offenses, the child 

recalled seeing "a gun" in the victim's "pocket" and hearing 
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"three shots" shortly thereafter but told "nobody" of the 

incident. He testified that he "couldn't see" the color of the 

weapon, but remembered previously recounting that he "saw a black 

object," described as "metal." Asked if his testimony "about 

seeing [the victim] with a gun and . . . hear[ing] shots" was 

true, the child answered, "No. I mean yeah." 

 At the second trial, the witness recalled that the victim 

had a "beeper," not a gun, in his pocket, although he "didn't 

recognize it [as] a beeper." Asked repeatedly if he remembered 

previous statements "that [he] saw a gun in [the] pocket," the 

child persistently answered in the negative. 

 "In Virginia, a child need not have reached a certain age in 

order to be competent as a witness." Durant v. Commonwealth, 7 

Va. App. 454, 462, 375 S.E.2d 396, 400 (1988). Rather, "[a] 

child is competent to testify if [he] possesses the capacity to 

observe events, to recollect and communicate them, and has the 

ability to understand questions and to frame and make intelligent 

answers, with a consciousness of the duty to speak the truth." 

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

(citations omitted); Durant, 7 Va. App. at 462, 375 S.E.2d at 

400. "Because of the trial court's opportunity to see the child 

and to observe his or her demeanor on the stand and manner of 

testifying, the determination of competency is left largely to 

the discretion of the trial court," and the decision will not be 

disturbed "in the absence of manifest error." Durant, 7 Va. App. 
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at 462, 375 S.E.2d at 400 (citing Carpenter v. Commonwealth, 186 

Va. 851, 864, 44 S.E.2d 419, 425 (1947)); see Cross, 195 Va. at 

64, 77 S.E.2d at 449. 

 Applying these principles to the instant circumstances, we 

find no reversible error in the disputed ruling of the trial 

court. The child witness was unable to respond appropriately to 

voir dire questioning on two occasions, experienced continuing 

difficulty in recalling past events with consistency and 

reliability, and did not understand the concept of truth 

generally or in relation to his testimony. Moreover, his most 

recent recollection of the offenses, reflected in the proffer of 

his testimony at the subject trial, established that the victim 

was unarmed, a circumstance contrary to defendant's theory of the 

case. Thus, any error in precluding the evidence manifestly "did 

not affect [the] verdict" or impair a "fair trial" and was, 

therefore, harmless. Lavinder v. Commonwealth, 12 Va. App. 1003, 

1005, 407 S.E.2d 910, 911 (1991) (en banc); see Code § 8.01-678. 

 Accordingly, we affirm the convictions. 

 Affirmed.