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