HOPEWELL, Va -- More than a year ago, a former police officer was criminally charged after an encounter with a child inside a Hopewell elementary school, but months later, the case took a turn much to the shock of the boy's mother.
Michele Simpson said surveillance video recorded in the hallway of Harry E. James Elementary shows teacher's assistant Kevin Johnson allegedly assaulting her 8-year-old son on August 11, 2022.
"That's when I got infuriated," Simpson said. "I watched it over and over again, because I thought my eyes were tricking me."
As described in a police incident report, the video appears to show the child backing away when Johnson strikes the boy with his hand on the side of his head.
The boy is then seen running away as Johnson chases after him with a cane.
A second video appears to show Johnson catching up to the boy, grabbing his neck and jerking him, which appears to cause the child's head to strike the wall, according to the police report.
"My body went against the wall, and he took his hand and hit my head," the child told CBS 6 in an interview.
Johnson — who was a Hopewell police officer until his termination in 2016 and a former candidate for Hopewell Sheriff — is then seen walking the student down the hall with his hand on the child's neck.
"And I couldn't fight back because he was squeezing. I was trying to get his hand off," the boy said.
Before the alleged assault, the boy, who was under a behavior intervention plan at the time, antagonized another student in a classroom, according to the school's restraint report on the incident.
That prompted a counselor to tell the child to go to the counseling room. The child appeared to comply with the order but came into contact with Johnson in the hallway before he reached the counseling room.
After the incident, the boy was seen by a nurse for neck pain. There were no visible marks.
According to the report, the school's principal determined Johnson's physical restraint of the child was unsanctioned. The report also found that no student behaviors justified Johnson's actions, including "to prevent a student from inflicting serious physical harm or injury to self or others."
Hopewell Police got involved 24 hours later after the principal reported the incident to Child Protective Services (CPS) and CPS referred the case to law enforcement.
A detective spent several days reviewing evidence and ultimately decided to pursue an assault charge, which he relayed to the child's mother during a recorded interview. Simpson said it was also her wish for charges to be pursued.
"We want to take out charges. However, the [Commonwealth Attorney's] office also has to look at the case and agree to prosecute," the detective told Simpson, as shown in a body camera video dated August 23, 2022.
The police report ultimately stated that a Hopewell Assistant Commonwealth's Attorney, Deputy Commonwealth's Attorney, and a magistrate all agreed with police that there was probable cause, and on August 23, 2022, Johnson was charged with misdemeanor assault.
CBS 6 legal analyst Todd Stone viewed the footage and agreed that sufficient evidence exists for such a charge.
"I think the video kind of speaks for itself. That initial contact with the student is sufficient to go before a judge," Stone said. "What I see is a slap of the student, and then the student ran after that. So that's the sort of thing that would normally go before a judge and have a judge decide."
But the case never went before a judge.
Two months after the incident, Simpson said she received a surprising update from the detective.
"He tells me it's been nolle prossed, and he was just as in shock as I was," Simpson said.
Hopewell's top elected prosecutor Rick Newman had decided to nolle prosse the charge, meaning the charge was essentially dropped but could be brought back in the future.
The detective wrote in his police report that he found out about the nolle prossequi in late October of 2022 after reaching out to Newman's office for an update.
The detective said he was never subpoenaed to court and that Newman did not tell him at which stage in the prosecution the charge was dropped.
CBS 6 made repeated attempts to Newman asking for an explanation, but he did not respond. Reporter Tyler Layne went to his office to ask about the case, but Newman told Layne this was not a news story, and he did not have to explain himself.
However, CBS 6 obtained an email that Newman sent to a group of parents and Simpson in May 2023 explaining his decision.
He said his former deputy attorney authorized the charge too soon, as in the "very next day," despite police records showing the deputy attorney authorized the charge 12 days after the alleged offense.
Newman said part of his decision was based off the school and CPS determining there was no finding of child abuse or criminal conduct.
But Stone said, it's not those agencies' jobs to conduct criminal investigations.
"In a criminal case, the opinion of the school, whether they found it was justified or not, doesn't really matter. Same thing with the opinion of CPS — Whether they think it qualifies as child abuse or not doesn't matter really to a criminal judge," Stone said. "CPS and the school don't do criminal investigations, and they don't make criminal findings."
A Hopewell Social Services report showed CPS determined there was not a preponderance of evidence to suggest Johnson purposely caused the boy to hit his head. CPS also cited that the boy did not mention in his CPS interviews that Johnson hit his head against the wall and that the child didn't have any injuries, marks, or bruises. Thus, CPS determined the allegation of abuse was "unfounded."
Hopewell City Schools spokesperson Byron Davis said the findings of the school district's investigation into the incident were shared with Newman's office. Davis said he could not discuss personnel matters with CBS 6, but said Johnson never returned to Harry E. James Elementary after the day of the incident, and he officially separated from the division in December 2022.
"Trying to find whether there's child abuse under CPS definitions, or whether or not something's justified under a school conduct code, that's different than a criminal case," Stone said.
In his email, Newman said he did not believe Johnson had intent to assault the child, rather protect him. And if Simpson disagreed with him, she could take out the charge again through a magistrate and he would appoint a special prosecutor to the case.
"Why didn't you do that in the beginning?" Simpson said.
Despite feeling defeated by the process, Simpson took Newman's advice and went back before a Hopewell magistrate in August 2023, who reauthorized an assault charge against Johnson.
Hopewell Police confirmed they served the warrant on Johnson, and the case now appears to be active again in the judicial system.
More than a year later, Simpson said she just wants her day in court.
"How am I supposed to trust the justice system here?" Simpson said.
CBS 6 asked Johnson for a response to the allegations against him, and he said since this case is active and involves a child, it would be inappropriate for him to comment.
CBS 6 also followed up with Newman to ask if he plans on requesting a special prosecutor for this case, like he said in his email. We have not heard back.
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