COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judge Humphreys and Senior Judge Bumgardner
PUBLISHED
Argued at Salem, Virginia
HEATHER HOGSTON LAMBERT
OPINION BY
v. Record No. 0029-15-3 CHIEF JUDGE GLEN A. HUFF
DECEMBER 22, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SCOTT COUNTY
John C. Kilgore, Judge
David L. Scyphers (Scyphers & Austin, P.C., on brief), for
appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Heather Hogston Lambert (“appellant”) appeals her conviction of assault and battery, in
violation of Code § 18.2-57. Following a bench trial in the Circuit Court of Scott County (“trial
court”), appellant was sentenced to thirty days in jail and twelve months of supervised probation.
On appeal, appellant raises two assignments of error
1. The [trial court] erred in convicting [appellant] of assault and
battery given the due deference to be given to reasonable
judgments of a teacher and the fact that assault and battery
shall not be construed to include the use of, by any teacher
while acting in the course and scope of her official capacity,
incidental, minor or reasonable physical contact designed to
maintain order and control.
2. The [trial court] erred in admitting evidence of a letter written
to [appellant] pertaining to a prior incident.1
1
Our ruling on the first assignment of error disposes of the appeal and, therefore, this
opinion does not address the second assignment of error. Foltz v. Commonwealth, 58 Va. App.
107, 114, 706 S.E.2d 914, 918 (2011) (“[W]e seek to decide cases, on the best and narrowest
ground available from the record. This approach encourages judicial self-restraint by avoiding
For the following reasons, this Court reverses appellant’s conviction and remands the case for a
new trial if the Commonwealth be so advised.
I. BACKGROUND
On appeal, “we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
On January 10, 2013, eleven-year-old K.M. rode the school bus to Shoemaker
Elementary School (“Shoemaker”). As a special needs student, K.M. was regularly met by
teacher’s aide Tina Williams (“Williams”) when her bus arrived at school. On the morning of
January 10, K.M. exited the bus and handed her backpack, coat, and blanket to Williams. In the
process, K.M.’s coat or blanket fell and Williams retrieved it from the bus steps.
On that same morning, appellant, a preschool special education teacher for Shoemaker,
was outside on bus duty when K.M.’s bus arrived. As K .M. was exiting the bus, appellant saw
either K.M.’s coat or blanket “escape[] from the bus and land[] on the ground.” Appellant
observed Williams pick up the fallen item while K.M. was still on the bus steps. After Williams
retrieved the item, K.M. handed her backpack to Williams and proceeded into the school
building. At that point, appellant thought she heard Williams ask K.M. to “come back and get”
her belongings. When K.M. did not turn around, appellant followed after K.M. as she entered
the school. Appellant was not one of K.M.’s teachers, nor did she realize Williams worked with
K.M. as a teacher’s aide.
the resolution of broad, reasonably debatable legal issues when narrower, less debatable legal
issues fully dispose of the appeal before the court.” (citations omitted)).
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Several witnesses testified that they saw appellant run after K.M. in an “agitated” or
“aggravated” manner. Renda Keith (“Keith”), a qualified mental health professional at
Shoemaker, who worked with K.M., witnessed the events of January 10, as they occurred inside
the school. Keith testified that after appellant ran into the school, appellant loudly yelled at
K.M., instructing K.M. to go back outside and retrieve her backpack. K.M. refused, repeating
“No” while crying. A struggle ensued in which appellant pulled K.M. outside and down the
sidewalk back toward the bus.
Once outside, appellant continued to pull K.M., using the child’s wrists, down the
sidewalk. Appellant called for Williams to assist. Initially, Williams ignored appellant “because
[Williams] thought what [appellant] was doing was wrong.” Eventually, however, Williams
assisted. Williams put the coat and backpack on K.M., and told K.M. “to go on in.”
Stacy Wood (“Wood”), the assistant principal for Shoemaker and the trainer for Scott
County on proper escorting and prompting techniques for special needs students, was qualified
during trial as an expert in escorting and prompting techniques for special needs children. After
watching the surveillance video of the incident for the first time while giving her testimony,
Wood testified that appellant’s method of pulling K.M. by the wrist was not the appropriate
“handle with care” technique educators are required to use in Scott County. Specifically, Wood
stated that even had K.M. sat down on the floor and refused to move, the proper way for
appellant to lead would be to lift the child up under the arms and stand her up.
Over appellant’s objection, the Commonwealth offered into evidence a letter dated
May 17, 2012 (“School Board letter”), from the Scott County School Board (“School Board”)
and addressed to appellant. The letter stated in pertinent part, “please use your teaching
assistants in the room when disciplining a child. You should not put your hands on a student
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unless it is for instruction or for the safety of a child.” The trial court overruled appellant’s
relevance objection, explaining
[the letter is] very material if [appellant] had been instructed by the
Scott County School Board or a supervisor that she was not to have
physical contact with a child. She wouldn’t have the exception
[Code § 18.2-57(G) (exception to assault and battery for school
employees)] available to her any longer that her physical contact
with a child was appropriate if she could have none.
(Emphasis added).
At the close of the evidence, the trial court convicted appellant of assault and battery. In
doing so, the trial court reasoned that the actions taken by appellant did not fall within the
statutory exception, considering the dictates of the School Board. First, the trial court stated that
appellant’s actions were, “definitely . . . outside the scope of employment . . . since the prior
action of the [School Board], both verbally and in writing, if not limiting her scope of
employment, certainly emphasized what would be appropriate contact—physical contact
between [appellant], at least, and the children under her care.” (Emphasis added). Next, the trial
court stated that appellant’s version of the facts was not credible and that appellant was mistaken
about the alleged disobedience by K.M. The trial court found that K. M. had not committed an
act of disobedience, and, thus, there was “nothing to give deference to [because] there was no
reasonable reason for [appellant] to be disciplining, directing, instructing [K.M.] on anything.
And, even if there were, I would find that what I’ve viewed here would be an unreasonable
response to the level of disobedience that is alleged.” Consequently, the trial court concluded
that the exception under Code § 18.2-57(G)(i) did not apply. This appeal followed.
II. ANALYSIS
On appeal, appellant contends that the trial court erred in its interpretation of Code
§ 18.2-57(G). Specifically, appellant argues the trial court failed to properly interpret the
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statutory exception, which exempts a teacher’s “reasonable physical contact designed to maintain
order and control” from the definition of assault and battery. Code § 18.2-57(G)(i).
“[A]n issue of statutory interpretation is a pure question of law which we review de
novo.” Scott v. Commonwealth, 58 Va. App. 35, 48, 707 S.E.2d 17, 24 (2011) (alteration in
original) (quoting Evans v. Evans, 280 Va. 76, 82, 695 S.E.2d 173, 176 (2010)). “The primary
objective of statutory construction is to ascertain and give effect to legislative intent.” Hines v.
Commonwealth, 59 Va. App. 567, 573, 721 S.E.2d 792, 795 (2012) (quoting Commonwealth v.
Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998)).
When the language of a statute is unambiguous, we are bound by
the plain meaning of that language. Furthermore, we must give
effect to the legislature’s intention as expressed by the language
used unless a literal interpretation of the language would result in a
manifest absurdity. . . . [T]he plain, obvious, and rational meaning
of a statute is to be preferred over any curious, narrow, or strained
construction.
Id. at 574, 721 S.E.2d at 795 (quoting Kozmina v. Commonwealth, 281 Va. 347, 349-50, 706
S.E.2d 860, 862 (2011)).
Under Code § 18.2-57(A), “simple assault and battery” is a Class 1 misdemeanor.
Code § 18.2-57(G) provides an exception to this general rule in certain circumstances. In
pertinent part,
“assault and battery” shall not be construed to include the use of,
by any . . . full-time or part-time employee of any public or private
elementary or secondary school while acting in the course and
scope of his official capacity, . . . (i) incidental, minor or
reasonable physical contact or other actions designed to maintain
order and control.
Code § 18.2-57(G) (emphasis added). “In determining whether a person was acting within the
exceptions provided in this subsection, due deference shall be given to reasonable judgments that
were made by a . . . full-time or part-time employee of any public or private elementary or
secondary school at the time of the event.” Id. (emphasis added). Construing a similar exception
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in Code § 22.1-279.1,2 the Federal District Court for the Eastern District of Virginia concluded
that the language “reflects an express legislative intent to defer to teachers who are often
required to make difficult and expeditious decisions.” Brown v. Ramsey, 121 F. Supp. 2d 911,
913 (E.D. Va. 2000).
A. Scope of Official Capacity
Code § 18.2-57(G)(i) provides that “(i) incidental, minor or reasonable physical contact
or other actions designed to maintain order and control,” if done by a school employee in his
official capacity, are not assault and battery. Noting that “the prior action of the school
board . . . , if not limiting her scope of employment, certainly emphasized what would be
appropriate contact,” the trial court ruled that appellant could not have been acting within the
scope of her official capacity. Thus, the trial court found that the exception did not apply
because of the limitations set by the School Board and Scott County. In effect, it substituted the
School Board’s and Scott County’s standards of conduct for that specified by the General
Assembly in the criminal statute to determine that appellant could not have been acting within
her “official capacity.”
2
The text of Code § 22.1-279.1 (Corporal punishment prohibited) reads in pertinent part
(A) No teacher, principal or other person employed by a school
board or employed in a school operated by the Commonwealth shall
subject a student to corporal punishment. This prohibition of
corporal punishment shall not be deemed to prevent (i) the use of
incidental, minor or reasonable physical contact or other actions
designed to maintain order and control . . . .
(B) In determining whether a person was acting within the
exceptions provided in this section, due deference shall be given to
reasonable judgments at the time of the event which were made by a
teacher.
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The standards selected by the General Assembly are not subject to modification by the
School Board. “When the language in a statute is clear and unambiguous, we are bound by the
plain meaning of that language. [The court] must determine the General Assembly’s intent from
the words appearing in the statute . . . .” Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494,
496 (2001) (citations omitted).
Therefore, instructions issued by a school board to a teacher are ineffective to modify the
standards set by the General Assembly for criminal culpability. See State v. Lanier, 979 So. 2d
365, 369 (Fla. Dist. Ct. App. 2008) (“While a teacher may be subject to disciplinary charges for
violating the school board’s employment policy, that policy does not trump the argument that
certain conduct has not violated the criminal law.”); see also Commonwealth v. Cnty. Bd., 217
Va. 558, 574, 232 S.E.2d 30, 40 (1977) (“School boards . . . constitute public quasi corporations
that exercise limited powers and functions of a public nature granted to them expressly or by
necessary implication, and none other . . . .” (emphasis added) (quoting Kellam v. School Bd.,
202 Va. 252, 254, 117 S.E.2d 96, 98 (1960))). A school board has the authority to regulate
actions of its teachers and to administer contractual penalties for a teacher’s failure to comply,
see Code §§ 22.1-28, 22.1-313, but that authority does not extend to modifying the standards
established by the General Assembly in a criminal statute. See, e.g., Commonwealth v. Doe, 278
Va. 223, 228-29, 682 S.E.2d 906, 908 (2009) (holding that the courts’ authority to lift a criminal
statutory ban imposed on a defendant is distinct and separate from the “supervisory authority
over the public schools” vested in a school board by which the school board could continue to
ban the defendant from school property).
The term “official” is defined as “[o]f or relating to an office or position of trust or
authority,” and the term “capacity” is defined as “[t]he role in which one performs an act.”
Official & Capacity, Black’s Law Dictionary (10th ed. 2014). In other words, the exception is
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applicable to one whose conduct occurs in his “role” as an employee of the school while
performing duties “of or related to [his] . . . position of . . . [such] authority.” Code
§ 18.2-57(G); see Scope of Authority, Black’s Law Dictionary (10th ed. 2014) (“[t]he range of
reasonable power that an agent has been delegated or might foreseeably be delegated in carrying
out the principal’s business”).
Therefore, the trial court should not have relied on the strictures of the School Board and
Scott County to determine whether appellant was “acting in the course and scope of her official
capacity.” The undisputed evidence in this case established that appellant was employed and
functioning as a school teacher monitoring bus activity when her interaction with K.M. occurred.
Consequently, the scope of her “official capacity” was defined by her duties as a special needs
school teacher, including her duty to oversee students as they arrived on the bus on January 10,
2013. In ruling that appellant was acting outside of the scope of her official capacity and
therefore not entitled to the benefit of the statutory exemption, the trial court erroneously
substituted the policies of the School Board and Scott County for the “official capacity” standard
established by the General Assembly.
B. Reasonable Judgments
Code § 18.2-57(G)(i) provides that in determining whether a defendant’s actions fall
within the exception, “due deference” is to be given to the reasonable judgments of the school
employee made “at the time of the event.” In the instant case, the trial court did not provide “due
deference” to appellant because it found appellant was mistaken in her belief that K.M. had been
disobedient. The trial court did not determine whether appellant’s understanding of events was,
nonetheless, reasonable, and consequently, did not apply due deference to determine whether her
contact with K.M. was reasonable.
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“The word ‘reasonable,’ in ordinary usage, ‘means fair; just; ordinary or usual; not
immoderate . . . ; not capricious or arbitrary.’” Miller v. Commonwealth, 64 Va. App. 527, 541,
769 S.E.2d 706, 712 (2015) (quoting Sydnor Pump & Well Co. v. Taylor, 201 Va. 311, 317-18,
110 S.E.2d 525, 530 (1959)). A mistake, on the other hand, is “[a]n error, misconception, or
misunderstanding; an erroneous belief.” Mistake, Black’s Law Dictionary (10th ed. 2014). A
plain reading of the exception in Code § 18.2-57(G) requires the court to determine whether a
judgment, even an erroneous judgment, was reasonably made.
In the instant case, the trial court did not determine whether appellant’s judgment was
reasonable, stopping instead with a finding that appellant was mistaken in her perception of
events. Under the plain meaning of Code § 18.2-57(G), the trial court was required to further
determine whether appellant’s version of the facts, i.e. that K.M. had disregarded an instruction,
was nonetheless a reasonable “fair” or “just,” or “not capricious or arbitrary” understanding of
the events at the time. If appellant’s understanding of the events was reasonable, the trial court
was then required to give appellant due deference in determining whether her response was
likewise reasonable. By requiring application of “due deference” to “reasonable judgments that
were made . . . at the time of the events,” the statute contemplates that the perspective of the
school employee “at the time of the event” must be taken into consideration. Code § 18.2-57(G).
Absent a determination of the reasonableness of appellant’s understanding of the events, the
statutory standard of due deference was not appropriately withheld. Such absence was error.
III. CONCLUSION
For the foregoing reasons, this Court reverses appellant’s conviction and remands the
matter to the trial court for a new trial if the Commonwealth be so advised.
Reversed and remanded.
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