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.
Present: Chief Judge Huff, Judge Humphreys and Senior Judge Bumgardner.
[65 Va.App. 685] GLEN A. HUFF,
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.
For the following reasons, this Court reverses appellant's conviction and remands the case for a new trial if the Commonwealth be so advised.
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.
[65 Va.App. 686] 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 ...