                                         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)).

                                               -2-
       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



                                                -3-
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


                                                 -4-
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
                                               -5-
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.

                                                -6-
       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

                                                -7-
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.



                                                 -8-
       “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.



                                                -9-
