PRESS RELEASE On February 9, 2012, I was appointed by the Honorable Michael S.

Irvine, Judge of the Circuit Court of Botetourt County, to serve as a Special Prosecutor in the Commonwealth of Virginia v. Victor Terry case currently on appeal to the Circuit Court from the Botetourt County Juvenile and Domestic Relations District Court. Like all criminal appeals to the Circuit Court, this is a trial de novo, meaning that the case begins anew without regard to any prior proceeding. Thus, my first function has been to conduct my own investigation into the facts and review the applicable law in order to decide how best to proceed. Unlike many factual situations, my investigation indicates that there is little disagreement among the potential witnesses to the events that took place in the shop area of Lord Botetourt High School on the morning of November 18, 2011. In summary, the male juvenile in question was about to enter the classroom when he was stopped by his teacher, Mr. Terry, and told that he would have to quit making a disruptive noise before he would be allowed to enter the classroom. The student, who later acknowledged that he had been making a noise, complied and was allowed to enter. While not capturing the interaction that occurred at the classroom door, a classroom video shows the student entering, greeting a friend with a hand slap, and taking a seat. The video also reveals that the interaction at the doorway did not appear to draw the attention of the students in the classroom. In all respects, it appears to be business as usual. On Monday, November 21, 2011, the male student accompanied by a parent obtained an Assault and Battery warrant under Virginia Code 18.2-57 for Mr. Terry. The gravamen of the complaint appears to be centered on another fact not in controversy, the fact that Mr. Terry physically put his hand on the students chest/arm area to stop his entry into the classroom. I would note that there is some disagreement between the parties as to the exact manner of the touching, but there is no allegation that this was in the nature of a strike or a blow nor is there any representation of an attempt to injure or actual injury. The conduct of the student and the classroom immediately following the incident as captured by the video suggests that this was a non-event in its totality. The question then becomes, having concluded that factually this was an insignificant touching, does such a touching constitute the crime of Assault and Battery? At common law, in order to support a charge of Assault and Battery, the touching must be accompanied by a reasonable apprehension of injury on the part of the person who is touched. This is an objective, reasonable person standard, not a subjective test; and, under these facts, I could not argue that what occurred constitutes a crime. Additionally, my finding that this event does not constitute a crime is specifically supported by statutory law in Virginia Code 18.2-57.G(i), which is self explanatory and provided for your examination. For the reasons stated above, I will ask the Circuit Court of Botetourt County to enter an order of dismissal in this case. Because there are going to be individuals who disagree with this decision, I would point out that any set of facts that can arguably be pursued in a criminal court can also arguably be pursued in a civil court if an aggrieved party be so inclined. Donald S. Caldwell Roanoke City Commonwealth=s Attorney