December 15, 2016
COMMONWEALTH OF VIRGINIA
HEATHER HOGSTON LAMBERT
THE COURT OF APPEALS OF VIRGINIA
PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and
Kelsey, JJ., and Lacy, S.J.
W. LEMONS, CHIEF JUSTICE
appeal, we consider whether the Court of Appeals erred in
reversing a school teacher's misdemeanor conviction for
assault and battery of a special needs student.
FACTS AND PROCEEDINGS
Hogston Lambert ("Lambert") was tried by the
Circuit Court of Scott County ("trial court") upon
an indictment charging assault and battery of a child in
violation of Code § 18.2-57. At the conclusion of a
bench trial, Lambert was found guilty and sentenced to 30
days in jail with all 30 days suspended.
evidence at trial proved that Lambert was a preschool special
education teacher for Scott County Public Schools at
Shoemaker Elementary School ("Shoemaker"). On
January 10, 2013, Lambert was on "bus duty" outside
Shoemaker when a school bus arrived carrying K.M., an
eleven-year-old student with Downs Syndrome. Lambert was not
one of K.M.'s teachers, and she had no knowledge of
K.M.'s individualized education plan.
teacher's aide, Tina Williams ("Williams"),
testified that she met K.M. at the bus dropoff area in front
of the school. As K.M. stepped off the bus, she handed
Williams her backpack and blanket. K.M. then "ran,
scampered up the sidewalk" away from Williams and toward
the school building. Williams testified that "less than
a minute" later, she observed Lambert pull K.M. out of
the school building by her arm. Williams stated that Lambert
"called to me to come and help her and I ignored her at
first." Williams explained that "I really
didn't want to get involved . . . Because I thought what
[Lambert] was doing was wrong."
further testified that as K.M. stepped off the bus she was
"very happy" and "the best I had seen her all
year." On prior occasions, upon arrival at school
Williams would hold K.M.'s belongings until all other
students had been dropped off, at which time Williams would
either give K.M. her belongings or send K.M. "back out
there" to retrieve the items. On cross-examination,
Williams admitted that K.M. was "a stubborn little
girl." However, Williams did not believe that K.M.
needed to be disciplined or "have some sort of a
teaching moment" as a consequence of leaving her
backpack with Williams.
surveillance video of the event played at trial, K.M. was
seen exiting a school bus and walking under a breezeway into
the school building. Lambert followed K.M. into the school
and walked back out holding K.M. by the arm. As the two
walked toward the street, K.M. resisted and Lambert pulled
her forward by the wrist. K.M. continued to resist Lambert as
the pair moved down the sidewalk. On three occasions, Lambert
stopped as K.M. bent at the waist and Lambert pulled K.M. by
her wrist. When they stopped for a third time, the video
showed Williams carrying K.M.'s coat and backpack and
walking to where Lambert and K.M. were standing.
role as a therapeutic day treatment counselor for Family
Preservation Services, Renda Keith ("Keith")
interacted with K.M. on a daily basis at Shoemaker. Keith
testified that K.M. often handed her backpack to Williams or
another aide to indicate that it contained a note from
K.M.'s mother or that "there's something in that
backpack for us . . . to see." Like Williams, Keith also
observed that K.M. "was in a good mood" and was
"bouncing and grinning" when she first came through
the school doors that morning. However, Keith testified that
Lambert "ran" through the lobby and "was loud
and screaming at [K.M.] . . . to go outside . . . to get her
book bag." "And then, [Lambert] got [K.M.] outside
- pulling her outside." Keith stated that "I just
didn't want [K.M.] to be pulled on, " but Keith said
she had been trained not to intervene in a teacher-student
"power struggle" unless the teacher requested
assistance. Both Williams and Keith testified that, after the
incident, K.M. was upset, crying, had red marks on her arms,
and "kept saying she wanted to go home."
Reed ("Reed"), also a counselor for Family
Preservation Services, was talking with Keith in the front
lobby of the school building when K.M. first came inside.
Reed testified that Lambert looked "angered and
agitated" as she "forcefully entered the
school" and yelled at K.M., "[about] something
[having] to do with [K.M.'s] coat and book bag."
When Lambert confronted K.M. just outside the cafeteria, Reed
[K.M.] was initially defiant. She became more and more upset
as the situation progressed. She began crying, and screaming,
and struggling, and attempted to sit down onto the floor to
keep from being physically moved.
stated that "there was a short struggle, and [Lambert]
was eventually able to drag [K.M.] out of the school."
Wood ("Wood"), the assistant principal at
Shoemaker, also testified for the Commonwealth at trial. The
trial court qualified Wood, over Lambert's objections, as
an expert witness in childhood special education to discuss
the "appropriate techniques for escorting or prompting
special needs children in the educational setting."
Based on the surveillance video footage, Wood testified that
Lambert did not employ the proper escorting technique. Wood
explained that Scott County teachers are trained to use the
"handle with care technique, " which involves
lifting a child by picking her up under her arms.
Commonwealth also offered into evidence a May 17, 2012 letter
from the Scott County School Board to Lambert. The letter,
sent to Lambert as a "disciplinary measure" several
months before the incident with K.M., instructed Lambert to
"please use your teaching assistants in the room when
disciplining a child. You should not put your hands on a
student unless it is for instruction or for the safety of a
child." Lambert objected to the relevance of the letter,
but the trial court overruled her objection on the basis that
Lambert would not be covered by the statutory school
personnel exception for simple assault and battery charges
afforded under Code § 18.2-57(G) if she had ignored the
School Board's directive.
I think it's very material if she had been instructed by
the Scott County School Board or a supervisor that she was
not to have physical contact with a child. She would not have
the exception available to her any longer that the physical
contact with a child was appropriate[, ] if she could have
close of the Commonwealth's case, Lambert moved to strike
the evidence, arguing that her physical contact with K.M. did
not constitute assault and battery because it fell within the
Code § 18.2-57(G)(i) exception. To be covered under that
exception, a full-time school employee must be acting in the
course and scope of her official capacity and the conduct at
issue must be "incidental, minor or reasonable physical
contact or other actions designed to maintain order and
control." Code § 18.2-57(G)(i). Lambert argued that
she did not intend to harm K.M., but instead sought to teach
K.M. appropriate behavior. The trial court denied
Lambert's motion, holding:
I would find that the Commonwealth, through both its witness
testimony and video evidence, has presented sufficient prima
facie evidence of both the offense of simple assault and
battery[. B]ased on the evidence I've heard I would find
preliminarily that the Defendant's actions that I viewed
here in the video and that have been testified to that
included the touching, shouting, pulling viewed in their
totality . . . were neither incidental, nor minor, nor
reasonable contact designed to maintain order or control . .
. and that's what's required [for the exception] in
[Code §] 18.2-57(G)(i) [to apply].
sole evidence presented was her own testimony. She testified
that K.M. had either thrown or dropped an item to the ground
while stepping off the bus. Lambert stated that Williams
picked up the item, either a coat or blanket, and that K.M.
also handed her backpack to Williams before heading into the
building. Lambert thought she heard Williams call out to
K.M., asking her to retrieve her belongings, but K.M.
continued walking away from Williams. At this point, Lambert
said she followed K.M. into the school building and asked
K.M. if she had heard Williams' call to return. K.M. said
"no" and pushed away. Lambert took K.M.'s hand
and led her back outside. Lambert testified that she used
"an authoritative voice" and told K.M., "you
need your stuff, let's go back outside." When K.M.
resisted by bending at the waist and pulling away, Lambert
placed both hands on K.M.'s wrist for "safety"
because she was afraid that K.M. would "topple
over." Lambert testified that K.M was large and stronger
than her. Lambert described her motivation in leading K.M.
[K.M.] was given a formal direction to go - to come back and
get her things. And, in all my training that I've had
over the years, when a child is given a direct instruction
and they don't follow it right away, then you are to
redirect or prompt them to follow that instruction.
Lambert led K.M. outside to the middle of the breezeway and
called for Williams to bring K.M.'s belongings. Williams
brought the items and helped Lambert assist K.M. to put on
her coat and backpack. Once K.M. had her belongings, Lambert
said "great job, you've got your stuff now, you can
walk inside" and K.M. returned to the school building.
cross-examination, the Commonwealth attempted to impeach
Lambert with a written statement she prepared shortly after
the incident. The prosecutor also asked Lambert whether three
of the Commonwealth's witnesses were "not telling
the truth today" since their testimony conflicted with
Lambert's. Lambert responded that "[t]hey are
leaving things out . . . [b]ecause I know what I saw and I
know what I heard."
again moved to strike the evidence, and the trial court again
denied the motion, holding that Lambert's conduct did not
fall under the exception for certain actions of school
personnel outlined in Code § 18.2-57(G)(i). The trial
court observed that Lambert's statements were
"internally and inherently inconsistent."
[O]bjectively, the actions would be outside the scope of
employment of Ms. Lambert; and, subjectively, they would
definitely be outside the scope of employment of Ms. Lambert
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 . . .
trial court articulated an alternative holding regarding the
application of the Code § 18.2-57(G) exception for
school personnel. The trial court recognized the due
deference to be given under the Code § 18.2-57(G)
exception, stating: "I do, and will, give due deference
to the teacher's judgment, but I can't give due
deference to a lack of judgment in responding in what seems
to me to be an extremely minor act of disobedience." The
court clarified that, even if it accepted Lambert's
version of the events, Lambert's physical contact with
K.M. was still unreasonable.
[W]hat I've viewed here would be an unreasonable response
to the level of disobedience that is alleged, even if
it's accepted in the Defendant's version of
what's alleged. So, I would find that it is an
unreasonable response even if it did occur. . . .
the trial court convicted Lambert of misdemeanor assault and
battery under Code § 18.2-57. At her sentencing hearing,
the trial court reiterated its finding that based on
"the totality of the evidence, " Lambert
"overstepped her bounds and her role as someone who was
on bus duty" and "just went too far."
appealed her conviction to the Court of Appeals, assigning
error first to the trial court's failure to give
appropriate deference as required by the Code §
18.2-57(G)(i) exception, and second to the trial court's
admission of the School Board's May 2012 letter. In a
published opinion, the Court of Appeals reversed
Lambert's conviction and remanded the case to the trial
court for a new trial. Lambert v. Commonwealth, 65
Va.App. 682, 692-93, 779 S.E.2d, 871, 875 (2015). The Court
of Appeals held that the trial court erred in ruling that
Lambert acted outside the scope of her official capacity and
was "therefore not entitled to the benefit of" the
Code § 18.2-57(G)(i) exception. 65 Va.App. at 690-91,
779 S.E.2d at 874-75.
In effect, [the trial court] 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."
Id. The Court of Appeals also held that the trial
court erred in withholding the "due deference"
given to a teacher's "reasonable judgments"
made for purposes of applying the Code § 18.2-57(G)(i)
exception. Id. at 692, 779 S.E.2d at 875.
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.
Commonwealth timely petitioned this Court for an appeal, and
we awarded an appeal on the Commonwealth's three
assignments of error:
1. The Court of Appeals erred in holding that the trial court
erroneously substituted the policies of the School Board and
Scott County for the "official capacity" standard
established by the General Assembly in Virginia Code §
2. The Court of Appeals erred in failing to conduct a
harmless error analysis, and in failing to conclude that any
trial court errors were harmless.
3. The Court of Appeals erred in holding that the trial court
inappropriately applied the "due deference"
standard in Code § 18.2-57(G) because the record does
not support the Court of Appeals' finding that the trial
court failed to properly consider Lambert's perspective
"at the time of the event."
Standard of Review
Commonwealth's appeal raises mixed questions of law and
fact, requiring de novo review of the judgment of the Court
of Appeals. Williams v. Commonwealth, 289 Va. 326,
332, 771 S.E.2d 675, 678 (2015). Furthermore, we review the
facts from the trial court record and not the facts as
articulated by the Court of Appeals.
[T]he reviewing court must give the judgment of the circuit
court sitting without a jury the same weight as a jury
verdict. The appellate court has the duty to review the
evidence that tends to support the conviction and to uphold
the circuit court's judgment unless it is plainly wrong
or without evidence to support it.
Commonwealth v. Duncan, 267 Va. 377, 384, 593 S.E.2d
210, 214 (2004) (citations omitted). Moreover, we
"review factfinding with the highest degree of appellate
deference." Bowman v. Commonwealth,
290 Va. 491, 496, 777 S.E.2d 851, 854 (2015).
An appellate court does not ask itself whether it
believes that the evidence at the trial established guilt
beyond a reasonable doubt. Rather, the relevant question is
whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
Id. (emphasis in original) (quoting Williams v.
Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282
(2009) (citing Jackson v. Virginia, 443 U.S. 307,
Exception to Assault and Battery
§ 18.2-57(G) provides:
"Simple assault" or "assault and battery"
shall not be construed to include the use of, by any school
security officer or 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, any of the
following: (i) incidental, minor or reasonable physical
contact or other actions designed to maintain order and
initial question is whether the school personnel exception
applies to Lambert's conduct in this case. The
Commonwealth urges us to adopt the trial court's
reasoning and hold that Lambert was not covered by the Code
§ 18.2-57(G)(i) exception. Conversely, Lambert requests
that we affirm the holding of the Court of Appeals, that
"the trial court erroneously substituted the policies of
the School Board and Scott County for the 'official
capacity' standard established by the General
Assembly." 65 Va.App. at 691, 779 S.E.2d at 875. In this
appeal, however, we need not decide whether the School
Board's disciplinary letter limited the scope of
of the trial court's ruling whether Lambert was acting
within the scope of her official capacity, the trial
court's alternative holding provided an independent and
sufficient basis upon which to support Lambert's
conviction. While, in some cases, failure of a party to
address an alternative holding of the trial court may
necessitate affirmance on appeal, see, e.g.,
Johnson v. Commonwealth, 45 Va.App. 113,
116, 609 S.E.2d 58, 60 (2005) (an alternative holding of the
trial court may "legally constitute[s] a freestanding
basis in support of the trial court's decision"), in
this case both the petition for appeal in the Court of
Appeals and the briefing by both sides in that court
addressed the issue of the circuit court's alternative
finding that-even according deference to the judgment of
school personnel in the circumstances-the defendant's
conduct was not a reasonable use of force on the facts
presented in this record. The Court of Appeals did not
address this issue, and in its petition for appeal in this
case the Commonwealth continued to argue that theory as a
basis for reversal of the Court of Appeals' decision. The
third assignment of error granted in this appeal presents
this issue as part of the argument that the circuit court
properly applied Code § 18.2-57(G) because it held that,
even according deference to the defendant's perception of
the events, her actions were unreasonable. We therefore
proceed to address this independently dispositive ruling, and
it is not necessary to address the other bases articulated by
the trial court and the Court of Appeals. See Boone v. C.
Arthur Weaver Co., 235 Va. 157, 161, 365 S.E.2d 764, 766
Trial Court's Alternative Holding
Court of Appeals did not give sufficient consideration to the
trial court's alternative holding-the
"objective" ruling that, even under Lambert's
version of the facts, Lambert's response to K.M. was
still "unreasonable" and exceeded the physical
contact permitted by school personnel under Code §
18.2-57(G)(i). When it announced Lambert's conviction
from the bench, the trial court held that even if there were
a "reasonable reason for Ms. Lambert to be disciplining,
directing [or] instructing" K.M., Lambert's actions
nonetheless constituted an "unreasonable response to the
level of disobedience that is alleged."
finding of fact by the trial court satisfies the statutory
directive in Code § 18.2-57(G)(i). On the record, the
trial court expressly recognized the need for due deference
under the statutory school personnel exception to assault and
battery charges afforded under Code § 18.2-57(G)(i), but
explained that Lambert's judgment was unreasonable, even
accepting her version of the facts. Accordingly, the Court of
Appeals incorrectly characterized the actions of the trial
court when it held that the trial court failed to
"determine whether [Lambert's] judgment was
reasonable" given her perception of the events. 65
Va.App. at 692, 779 S.E.2d at 875.
record is clear that the trial court's alternative
holding afforded due deference to Lambert's "version
of the facts, " yet still determined that Lambert's
physical contact with K.M. was "an unreasonable
response." The trial court found, as a matter of fact,
that Lambert's actions, "the touching, shouting,
[and] pulling, viewed in their totality . . . were neither
incidental, nor minor, nor reasonable." That factual
finding is fully supported by the record in the present
action, and it rendered the Code § 18.2-57(G)(i)
reasons stated, we will reverse the judgment of the Court of
Appeals and reinstate the trial court's order of
and final judgment.