Commonwealth v. Qasim Q., a juvenile

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SJC-13317
COMMONWEALTH vs. QASIM Q., a juvenile.
Barnstable. January 4, 2023. - April 6, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Burning of Property. Attempt. Delinquent Child. Intent.
Evidence, Intent. Statute, Construction.
Complaint received and sworn to in the Barnstable
County/Town of Plymouth Division of the Juvenile Court
Department on January 31, 2020.
The case was heard by Mary O'Sullivan Smith, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Michelle Menken for the juvenile.
Johanna Black, Assistant District Attorney, for the
Commonwealth.
Cristina F. Freitas & Debbie F. Freitas for youth advocacy
division of the Committee for Public Counsel Services & others,
amici curiae, submitted a brief.
CYPHER, J. On August 27, 2020, the juvenile was arraigned
in the Juvenile Court on two counts of an attempt to burn a
public building, in violation of G. L. c. 266, § 5A (§ 5A or
2
attempted arson statute), and two counts of malicious
destruction of property of $1,200 or less, in violation of G. L.
c. 266, § 127, after he performed the viral TikTok "penny
challenge" twice at his high school. On November 2, 2021, the
juvenile waived his right to a jury trial, and he then proceeded
to trial before a judge. Although the judge allowed the
juvenile's motion for a required finding of not delinquent on
the charges of malicious destruction of property, the judge
adjudicated the juvenile delinquent on the two charges of
attempting to burn a public building.
The juvenile appeals, arguing that § 5A requires proof of
specific intent, and that the evidence presented at trial was
insufficient to demonstrate the juvenile acted with the specific
intent to burn or set fire to the building. He further argues
that, if the court construes attempted arson to be a general
intent crime, its application to this case would violate
principles of due process and the evidence would remain
insufficient. As we determine that § 5A is a specific intent
crime, we need not address the latter argument. Having
concluded also that the evidence was sufficient to support the
juvenile's adjudications of delinquent on both counts of
attempted arson, we affirm.1
1 We acknowledge the amicus brief submitted by the youth
advocacy division of the Committee for Public Counsel Services;
Youth Advocacy Foundation; Children's Law Center of
3
Background. 1. Facts. "We recite the facts the [judge]
could have found, viewing the evidence in the light most
favorable to the Commonwealth . . . ." Commonwealth v.
Witkowski, 487 Mass. 675, 676 (2021).
Around the time of January 2020, a TikTok challenge
referred to as the "penny challenge" was gaining popularity
among teens.2 The challenge, as described by Deputy Fire Chief
Leo Foley of the Plymouth fire department (department), who saw
video recordings of the challenge being performed, involves the
use of a cell phone charger with a charging block,3 a penny, and
a wall outlet. A performer of the challenge would plug the
charger into the wall outlet, leaving it slightly removed from
the wall, insert a penny behind the charging block, and push the
Massachusetts; Citizens for Juvenile Justice; Massachusetts
Advocates for Children; and Mental Health Legal Advisors
Committee.
2 TikTok "is a short-loop video sharing [application]
presently used by over 100 million Americans." TikTok Inc. v.
Trump, 490 F. Supp. 3d 73, 77 (D.D.C. 2020). TikTok describes
itself as "the leading destination for short-form mobile video."
TikTok, About TikTok, https://www.tiktok.com/about?lang=en
[https://perma.cc/P6N4-D97Q].
3 A charger is defined as "a device that is used to add
electricity to batteries." Britannica Dictionary, https://www
.britannica.com/dictionary/charger [https://perma.cc/8UZL-KKDT].
See TheStreet, Turbo-charge Your Devices With the Best USB-C
Charging Blocks (Feb. 27, 2023), https://www.thestreet.com
/review/usb-c-charging-block [https://perma.cc/WD7H-LM5D] (USB-C
charging block allows one to charge devices "on the go,"
"leverag[ing] USB-C power delivery technology to charge
compatible devices quickly").
4
charger back in without causing the penny to make contact with
the prongs of the charger. As the charger is pulled back out,
the penny slides down, hitting the two prongs of the charger,
causing a short circuit, and creating an "electrical arc."4
The arc created appears visually as sparks and could start
a fire. Depending on the level of insulation or whether a
circuit is "overloaded," outlets that short circuit frequently
will ignite a fire behind the wall. It may cause damage to the
circuitry of the electrical system in the building, requiring
the outlet to be replaced and the circuit to be tested.
Superficial damage to the wall or outlet also may occur, and
would look "[l]ike black scorch marks where it [did not]
actually catch fire, so to speak, but was damaged by the
arcing." After the arc is created, the prongs on the charging
block likely are to appear melted to some extent, as a result of
4 Foley defined an electrical arc as "that bright white
light that you see like when recently we had all the damage with
the power lines . . . , when those are touching each other it
creates an electrical arc, like lightning." Britannica defines
"electric arc" as
"[a] continuous, high-density electric current between two
separated conductors in a gas or [vapor] with a relatively
low potential difference, or voltage, across the
conductors. The high-intensity light and heat of arcs are
utilized in welding, in carbon-arc lamps and arc furnaces
that operate at ordinary air pressure, and in low-pressure
sodium-arc and mercury-arc lamps."
Britannica, https://www.britannica.com/science/electric-arc
[https://perma.cc/JM69-796W].
5
the sparks. It also could create charring on the plastic
portion of the charging block.5
On January 14, 2020, Joelene McCusker, a history teacher at
Plymouth North High School, was helping a group of students in
her classroom. Her classroom was set up to accommodate eight
different groups comprised of four desks and two tables in the
back of the classroom. She was facing the front of the room,
with her back turned toward the rear wall, when she heard a loud
bang coming from the area where the juvenile6 and another student
were working, toward the back of the classroom. She turned
around immediately and saw the juvenile kicking the wall. When
she approached him to ask him what had happened, he told her
that his charger got stuck in the wall, and that he was kicking
it to get it out. She noticed that his white cube charger,
which he had in his hand, was blackened and charred, and
appeared unusable. She reminded him to behave appropriately for
school and instructed him to put away the charger, directing his
attention back to the assignment. She then returned to the
students with whom she was working before the incident occurred.
5 At around the same time as the second incident involving
the juvenile described infra, Foley received an advisory from
the State fire marshal's office warning the department about the
challenge and its potential to cause damage or fire.
6 The juvenile was a special education student.
6
At that time, she did not think anything of the incident, and
she did not look at the outlet.
One week later, on January 21, 2020, Belinda Bechtold, a
biology teacher at the same school, and her coteacher, Patrick
McWalter, were teaching their biology class based in a science
laboratory (lab). The middle of the classroom was comprised of
traditional two-person desks. Bordering the desks, on each side
of the room, three lab benches jutted out from the wall.
Bechtold was teaching at the front of the classroom with
the lights out, using an overhead projector. At one point
during her lesson, Bechtold heard a crackling noise and noticed
a flash of light coming from the back corner. McWalter signaled
to Bechtold that he would handle the situation. She continued
teaching the class. McWalter also heard a loud rattling sound
coming from the back of the room where the juvenile was sitting.7
When McWalter approached the students sitting at the back of the
room, a student brought his attention to a penny in between the
prongs of a cell phone charging block and the outlet nearby.
The outlet was about four feet high from the floor, placed above
a counter. The juvenile was sitting in the seat closest to the
outlet, about an arm's length away. He observed that the
outlet, which normally was white, had black charring on it, and
7 This area of the classroom contained several outlets, as
the lab benches were set up for gas connections and computers.
7
noticed some charring or blackness on the wall. There was a
penny stuck between the prongs of the charging block.
McWalter, concerned, told the students to stay away from
the outlet and walked toward Bechtold to discuss the incident
with her. As he started making his way to the front of the
classroom, he heard a loud rattling noise again, causing him to
turn around. He saw sparks coming out of the outlet for a
couple of seconds and noticed the juvenile reaching out and
grabbing the charging block at the same time.
Once the students were working independently, Bechtold
walked to the back of the classroom to check on what had
happened when she was instructing the class. Bechtold noticed
that there was "something going on with the wall." She saw that
there was a cell phone charging block in the outlet, and the
outlet appeared to be charred in the areas surrounding the
block. Not knowing if the arc still was "live," Bechtold
removed the charging block with rubber-plated tongs. Similar to
the outlet, the side of the charging block attached to the
prongs was black and charred. The charging block looked like it
had been burned, and the penny was stuck to it. The penny was
misshapen and no longer round, and it was flush with the prongs
of the charging block as if it had been pushed down into the
prongs.
8
On that day, members of the department were present at the
school for unrelated reasons. McWalter informed the
administration what had just happened, and the department
members, including Foley, went to observe the damage. In the
lab classroom, Foley noticed the outlet had scorch marks
indicating a short circuit. Foley then observed the outlet in
McCusker's classroom and noted that it had black scorch marks on
it.
At some point around that time, McCusker returned to look
at the outlet where she had noticed the juvenile kick his
charger.8 She then noted that the outlet was blackened and
charred around the bottom and on the side.
2. Procedural history. A complaint issued against the
juvenile on January 31, 2020. Due to the COVID-19 pandemic, his
arraignment was rescheduled several times. Ultimately, the
juvenile was arraigned on August 27. The juvenile filed a
motion to dismiss on January 28, 2021. There was a hearing on
the motion on February 23, where the juvenile argued that
probable cause was lacking to show that he caused the charring
in both the January 14 and January 21 incidents and to show
intentional burning with malice under the attempted arson
8McCusker testified that she looked at the outlet about a
week after the January 14 incident.
9
statute.9 After the hearing, the judge denied the motion. In
issuing her decision, she stated,
"[O]n a directed verdict standard I think I'd be hard
pressed not to consider [whether the Commonwealth met the
standard] very carefully. I think the biggest issue at
that stage would be the maliciousness of the act.
Certainly, it's willful. I have no doubt that it was
willful. The malice, I think, is a little thinner, a
little less clear."
On November 2, 2021, the same judge conducted a colloquy
with the juvenile, and he waived the right to a jury trial. A
bench trial was held the same day. At the close of evidence,
the juvenile moved for a required finding of not delinquent on
all of the charges against him. The juvenile asserted that
there was insufficient evidence to demonstrate beyond a
reasonable doubt that he engaged in acts that caused the
blackening of the outlets and that, even if the judge found that
the evidence was sufficient on that point, the evidence was
insufficient to demonstrate that he attempted to burn the
building and that he acted willfully and maliciously. The judge
granted the juvenile's motion with respect to the counts
alleging malicious destruction of property. As to the attempted
arson charges, the judge denied the motion, indicating that "[a]
burning is malicious if it is done with a wrong and unlawful
motive or purpose."
9 The juvenile also argued that there was no probable cause
for the counts of malicious destruction of property.
10
After closing arguments, the judge adjudicated the juvenile
delinquent on both charges of attempting to burn a public
building.10 As to her finding on malice under § 5A, the judge
stated that the Commonwealth proved that the acts were
intentional and by design, showing that they were the "willful
doing of a harmful act without excuse." The juvenile filed a
timely notice of appeal, and we allowed the juvenile's
application for direct appellate review.
Discussion. 1. Intent required by § 5A. Both parties
assert that to violate § 5A one must have a specific intent
eventually to burn or set fire to a qualifying building,
structure, or property. We review questions of statutory
interpretation de novo. Commonwealth v. Fleury, 489 Mass. 421,
424 (2022). If the language of the statute "is clear and
unambiguous, we 'must give effect to its plain and ordinary
meaning and . . . need not look beyond the words.'" Id.,quoting Shaw's Supermkts., Inc. v. Melendez, 488 Mass. 338, 341
(2021). "The 'venerable distinction at common law between
general and specific intent has been the source of a good deal
of confusion' (citations and quotations omitted)." Commonwealth
v. Pfeiffer, 482 Mass. 110, 115, cert. denied, 140 S. Ct. 498
(2019), quoting Commonwealth v. Gunter, 427 Mass. 259, 268
10The judge indicated that the January 14 incident was a
closer case than the January 21 incident.
11
(1998), S.C., 456 Mass. 1017 (2010) and 459 Mass. 480, cert.
denied, 565 U.S. 868 (2011). "[I]n a general sense, 'purpose'
corresponds loosely with the common-law concept of specific
intent, while 'knowledge' corresponds loosely with the concept
of general intent." Gunter, supra, quoting United States v.
Bailey, 444 U.S. 394, 405 (1980). Specific intent requires not
only that the juvenile "consciously intended to take certain
actions, but that [he] also consciously intended certain
consequences." Pfeiffer, supra, quoting Gunter, supra at 269.
We agree with both parties that the intent required under G. L.
c. 266, § 5A, is specific intent, as evidenced by both the plain
language of the statute and existing case law.
"An attempt to commit a crime necessarily involves an
intent to commit that crime." Commonwealth v. Hebert, 373 Mass.
535, 537 (1977). See 2 W.R. LaFave, Substantive Criminal Law
§ 11.3, at 293 (3d ed. 2018) ("The crime of attempt consists of
[1] an intent to do an act or to bring about a certain
consequence which would in law amount to a crime; and [2] an act
in furtherance of that intent"). The crime of general attempt,
G. L. c. 274, § 6 (general attempt statute), is comprised of two
elements: "(1) the specific intent to commit the substantive
crime at issue, and (2) an overt act toward completion of the
substantive crime." Commonwealth v. LaBrie, 473 Mass. 754, 764
(2016) (elements of general attempt and attempted murder are
12
same). The substantive crime is important because the crime of
attempt is geared toward punishing acts bearing "a proximate
relation to that crime." Id. at 763. In Commonwealth v.
Peaslee, 177 Mass. 267 (1901), the court considered an attempt
to burn a building under an earlier version of the general
attempt statute. Under Peaslee, whether an overt act "coupled
with an intent to commit the crime" meets the definition of an
attempt depended on the degree of proximity to the completion of
the crime. Id. at 272.
Section 5A was added to G. L. c. 266 by St. 1932, c. 192,
§ 5. This section indicates:
"Whoever wilfully and maliciously attempts to set fire to,
or attempts to burn, or aids, counsels or assists in such
an attempt to set fire to or burn, any of the buildings
. . . mentioned in the foregoing sections, or whoever
commits any act preliminary thereto or in furtherance
thereof, shall be punished by imprisonment in the [S]tate
prison for not more than ten years, or by imprisonment in a
jail or house of correction for not more than two and one
half years or by a fine of not more than one thousand
dollars.
"The placing or distributing of any flammable, explosive or
combustible material or substance or any device in or
against any building . . . mentioned in the foregoing
sections in an arrangement or preparation with intent
eventually to wilfully and maliciously set fire to or burn
such building . . . or to procure the setting fire to or
burning of the same shall, for the purposes of this
section, constitute an attempt to burn such building
. . . ."
13
G. L. c. 266, § 5A.11 "The second part of § 5A . . . contains a
definition of 'attempt' in respect to arson and the related
offences there described." Commonwealth v. Mehales, 284 Mass.
412, 416 (1933). The enactment of the attempted arson statute
"changed the preexisting law." Id. "The purpose of its plain
words is to declare a comprehensive definition of 'attempt
. . . .'" Id. The definition of attempt in the second
paragraph of the statute superseded the "narrower conception"
articulated in Peaslee.12 Mehales, supra. See Commonwealth v.
Jaffas, 284 Mass. 417, 421 (1933) ("It is apparent from a
reading of [St. 1932, c. 192], in its entirety that the design
of the General Court in enacting it was to broaden the scope of
the legislative enactments touching 'arson and certain related
offences.' Some penalties are made less, but the description of
the offenses is somewhat less technical and more comprehensive
than in preexisting statutes").
11The attempted arson statute was amended by St. 1977,
c. 975, inserting "by imprisonment in the [S]tate prison for not
more than ten years, or." See Commonwealth v. Banner, 13 Mass.
App. Ct. 1065, 1067 (1982) (prior to 1977 amendment, penalty
prescribed was limited to incarceration in jail or house of
correction, which "[t]he Legislature apparently determined . . .
was an inadequate punishment").
12In Peaslee, the court stated that "an overt act although
coupled with an intent to commit the crime commonly is not
punishable if further acts are contemplated as needful."
Peaslee, 177 Mass. at 272. Peaslee required a preparation
coming "very near to the accomplishment of the act." Id.14
By the plain language of the statute, the intent required
is specific. Particularly, to meet the element of attempt, the
Commonwealth must show that the juvenile "plac[ed] or
distribut[ed] . . . any flammable, explosive or combustible
material or substance or any device in or against any building
. . . mentioned in the foregoing sections in an arrangement or
preparation with intent eventually to wilfully and maliciously
set fire to or burn such building" (emphasis added). G. L.
c. 266, § 5A. The mens rea requirement of a violation of § 5A
can be broken up into two elements: (1) the specific intent to
burn or set fire to a qualifying building; and (2) acting
willfully and maliciously. We examine each of these showings in
turn.
Because attempt to burn a public building, contrary to the
substantive crime of arson, is a specific intent crime, a
showing that "a reasonable person in the [juvenile]'s position
would have known that there was a plain and strong likelihood
that some portion of a dwelling house would be set on fire or
burned" is not enough. Pfeiffer, 482 Mass. at 121. An intent
eventually to set fire to or burn a building is required for a
conviction. G. L. c. 266, § 5A. "Although specific intent
requires proof that the [juvenile] intended [his] conduct and
its consequences, it does not require proof that the
consequences [he] intended were as extensive as those realized
15
. . . only that the consequences [he] intended are among those
covered by the statute." Pfeiffer, supra at 122. An intent to
"burn" or "char[]" some portion of the building is sufficient;
the juvenile need not have intended that the building be
destroyed or consumed by fire. Id. at 122, 143 (Appendix). See
A.F. Curtis, Treatise on the Law of Arson Covering the Decisions
of All American States and Territories, and Including Those of
England and the British Colonies § 63, at 80 (1936) (Curtis,
Treatise on the Law of Arson) ("In the absence of words
indicating a contrary intention, a statute will not be construed
as requiring an intent to destroy, but merely an intent to
burn"); 3 LaFave, Substantive Criminal Law § 21.3(b), at 319-320
(addition of "sets fire" to "burns" in arson statute sometimes
is construed to "extend[] arson liability to those rare cases in
which the fire does damage to the building without any 'burning'
of the building itself"; "[s]uch broadening of the law of arson,
it has been contended, is the 'better view' and 'clearly the
modern trend of authority today'" [citations omitted]).
The term "willfully" means "intentional and by design in
contrast to that which is thoughtless or accidental." Pfeiffer,
482 Mass. at 116, quoting Commonwealth v. McGovern, 397 Mass.
863, 868 (1986). For the substantive crime of arson and, thus,
the crime of attempt to burn a public building, malice
"comprises only three components": "[t]he wilful doing of an
16
unlawful act without excuse." Commonwealth v. Dung Van Tran,
463 Mass. 8, 26 (2012), quoting Commonwealth v. McLaughlin, 431
Mass. 506, 513 n.6 (2000). Malice, for the purposes of the
crime of arson, "need not be express, but may be implied; it
need not take the form of malevolence or ill will, but it is
sufficient if one deliberately and without justification or
excuse sets out to burn [a public building as defined by
statute]." Commonwealth v. Lamothe, 343 Mass. 417, 419 (1961),
quoting State v. Pisano, 107 Conn. 630, 632 (1928). This malice
requirement is just as applicable to the crime of attempted
arson under § 5A, as that offense "is so closely related to
arson that it is very unlikely that the Legislature intended the
word to be used in a different sense." Lamothe, supra at 420.
See Mehales, 284 Mass. at 415 (malice for purposes of § 5A is
"all acts done with an evil disposition, a wrong and unlawful
motive or purpose; the wilful doing of an injurious act without
lawful excuse" [citation omitted]).
Having defined the mens rea requirements for the crime of
attempting to burn a public building under § 5A, we move on to
consider whether the evidence presented against the juvenile was
sufficient to support his convictions.13
13As we hold that G. L. c. 266, § 5A, requires a showing of
specific intent, we need not address the juvenile's arguments
that the statute's application would violate constitutional
principles of due process were it a general intent crime. See
Commonwealth v. Manolo M., 486 Mass. 678, 692 (2021), quoting
17
2. Sufficiency of the evidence. The juvenile argues that
the evidence was insufficient to prove that he intended to burn
or set fire to the building. Relying on the judge's ruling that
the evidence was insufficient to prove malicious destruction of
property, he asserts that she "conveyed her belief that [he] did
not specifically intend to burn or set fire to the building."
He argues that the evidence supporting his attempt to perform
the challenge was insufficient to support an intent to set fire
to or burn the building. The Commonwealth argues that the
evidence was sufficient to support the two charges of attempt to
burn a public building and asserts that the juvenile did not
raise the issue of specific intent before the judge at trial.14
Commonwealth v. Raposo, 453 Mass. 739, 743 (2009) (generally we
do "not . . . decide constitutional questions 'unless they must
necessarily be reached'").
14The juvenile raised the issue of intent explicitly at the
motion to dismiss hearing; at trial, in his argument for a
directed verdict, he focused on the lack of a showing of malice,
but mentioned that there was insufficient evidence that he
"attempted to burn the building." Regardless of whether the
juvenile effectively raised this challenge below, we consider
his sufficiency argument, as "findings based on legally
insufficient evidence are inherently serious enough to create a
substantial risk of a miscarriage of justice." Commonwealth v.
Grandison, 433 Mass. 135, 140 n.8 (2001), quoting McGovern, 397
Mass. at 867.
We address whether the Commonwealth sufficiently proved
specific intent. Therefore, we need not address the juvenile's
argument that there was insufficient evidence under a general
intent requirement.
18
"In assessing the sufficiency of the evidence, we consider
'whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.'"
Commonwealth v. Davis, 487 Mass. 448, 462 (2021) (Davis I),
quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
"Circumstantial evidence is sufficient to find someone
[delinquent] beyond a reasonable doubt and inferences drawn from
such circumstantial evidence 'need only be reasonable and
possible; [they] need not be necessary or inescapable.'" Davis
v. Commonwealth, 491 Mass. 1011, 1013 (2023), quoting Davis I,
supra. Nonetheless, a conviction may not "be based on
conjecture or on inference piled upon inference." Commonwealth
v. Jones, 477 Mass. 307, 316 (2017).
We first assess the January 14 incident.15 We conclude that
the Commonwealth presented evidence sufficient to demonstrate
beyond a reasonable doubt that the juvenile intended to burn the
building through his performance of the challenge. The
Commonwealth introduced testimony surrounding a "viral teen
video resulting in fire incidents," and Foley described this
video as utilizing a charging block, a penny, and a wall outlet
to create a short circuit and produce an electrical arc, or a
15 As the juvenile does not contest any of the other
elements of an attempt to burn a public building, we focus our
analysis on the juvenile's specific intent.
19
bright white light resembling sparks that may start a fire.
After creating the sparks, the prongs on the charger likely are
to appear melted and the sparks may create charring on the
plastic portion of the charging block and black scorch marks
indicating damage on the wall or outlet. Bechtold described the
challenge as "[k]id[s] . . . putting pennies into . . . chargers
and using them to create sparks by plugging them into outlets."
As McCusker was teaching her students, she heard a loud
bang coming from the area where the juvenile was sitting, and
she saw the juvenile kicking the wall. She noticed that the
juvenile's white cube charging block, which he had in his hand,
was blackened and charred, and appeared unusable. About a week
later, when McCusker went back to look at the outlet, she noted
it was blackened and charred around the bottom and on the side.
The juvenile's specific intent to burn the building can be
inferred from the consequences of successfully performing the
challenge and the facts demonstrating his attempt to perform the
challenge that day. The juvenile's charging block -- a white
cube -- matched the description of those typically used in
performing the challenge, a "white block charger." The juvenile
kicked his charger out of the outlet, leading to a reasonable
inference that he knew it would be dangerous to touch, and thus
knew the consequences of performing the challenge. When
McCusker noticed the charger in the juvenile's hand, it was
20
blackened and charred, and appeared unusable. When she looked
at the outlet a week later, she noticed that it was blackened
and charred. This is consistent with the consequences of the
performance of the challenge. The juvenile did not ask for
help, despite the fact that a "loud bang" was emitted and his
charging block appeared damaged. See, e.g., Pfeiffer, 482 Mass.
at 123 (intent inferable where defendant left and locked door
without attempting to extinguish fire she set or call for help);
Dung Van Tran, 463 Mass. at 27-28 (defendant's failure to put
out fire or sound alarm supported inference that defendant
intended to burn apartment); Commonwealth v. Cavedon, 301 Mass.
307, 314-315 (1938) (failure to give alarm contributed to guilty
finding on arson charge). "An inference drawn from
circumstantial evidence need only be reasonable and possible; it
need not be necessary or inescapable" (quotation omitted). Dung
Van Tran, supra at 27, quoting Commonwealth v. Merola, 405 Mass.
529, 533 (1989). "We are mindful that in arson cases the
Commonwealth often can prove guilt only by a web of
circumstantial evidence that entwines the suspect in guilt
beyond a reasonable doubt." Pfeiffer, supra, quoting Choy v.
Commonwealth, 456 Mass. 146, 150, cert. denied, 562 U.S. 986(2010). A reasonable juror fairly could draw the inference that
the juvenile was aware of and intent on performing the challenge
to set off sparks on January 14 from the description of the
21
challenge and its consequences provided by Foley, and from the
juvenile's actions, including both his failure to ask for help
and his kicking of the charger.
The intent to create sparks, which is the "bright white
light" indicated in the challenge, is sufficient to demonstrate
an intent to burn. The substantive crime of arson requires
proof only that some portion of the property was on fire or
burned. Pfeiffer, 482 Mass. at 122. Specific intent requires
that the juvenile intended his conduct and its consequences, and
that the intended consequences met the requirements of the
statute. Id. It does not require proof that his intended
consequences were as severe as the extant consequences of his
actions. Id. His intent to perform the challenge, the purpose
of which is to create sparks within the building, equates to an
intent to "burn" the property, meeting the requirements of § 5A.
See id. (charring sufficient for arson). "Burn" is defined as
"to consume fuel and give off light, heat, and gases . . .
to give off light . . . to become altered by the action of
fire or heat . . . to become charred, scorched, seared, or
consumed by excessive heat . . . to injure by fire or heat:
alter a property of by undue exposure to fire or heat."
Webster's Third New International Dictionary 299 (2002).
Performing a challenge designed to create sparks, or a "bright
white light," within a building would fall within the definition
of "burn." For this reason, the juvenile's kicking of the
charger out of the outlet does not abate his intent to burn,
22
i.e., his intent to cause the sparks and create the heat
resulting in charring.16 See Curtis, Treatise on the Law of
Arson § 120, at 141 ("intent to burn may be inferred from the
act itself, if the . . . particular purpose could not have been
effected without such burning, for every person is held
responsible for the necessary and natural consequences of his
acts and is held to intend to produce such consequences"); 3
LaFave, Substantive Criminal Law § 21.3(b), at 320 (broad view
of arson law "modern trend of authority today" [citation
omitted]).
The facts presented regarding the January 21 incident
provided ample support for the charge of attempted arson. After
he attempted the challenge on January 14, the juvenile was aware
that performing it would result in charring in addition to the
sparks. Despite this awareness, only one week later, the
juvenile attempted the challenge again -- not once, but twice.
During another one of his classes, teachers saw a flash of light
and heard a loud "rattling" or "crackling" noise coming from the
area where the juvenile was sitting. McWalter was informed that
there was a penny in between the prongs of a charging block and
an outlet in the classroom. The juvenile was sitting within an
arm's length distance from the outlet. McWalter observed
16The juvenile's kicking of the charger also permits an
inference that he was aware that performing the challenge would
produce excessive heat.
23
charring on the outlet and the wall. He also noted a penny
stuck between the prongs of the charging block. After McWalter
told the students to stay away from the outlet and turned around
to update Bechtold, he heard the same noise, saw sparks coming
out of the outlet for several seconds, and noticed the juvenile
simultaneously reaching out and grabbing the charging block.
The charging block looked like it was burned, and the outlet and
sides of the charging block were black and charred, indicating a
short circuit. The penny was misshapen and flush with the
prongs of the charging block.
In addition to the testimony discussed supra regarding the
popularity of and procedure for completing the penny challenge,
after the January 14 incident, the juvenile was well aware that
performing this challenge would create sparks and result in the
charring and damaging of his charger. In the light most
favorable to the Commonwealth, he also would have been aware
that it resulted in the charring and blackening of the wall
outlet. Even putting aside his performance of the challenge on
January 14, after the first attempt on January 21 resulting in
the penny's adherence to the prongs of the charging block, he
knew that engaging in this behavior would create sparks and
charring on the outlet and the wall. In spite of that, he
ignored McWalter's command to stay away from the outlet and
24
touched the charging block again, creating sparks.17 These
actions are sufficient to demonstrate an intent to burn the
building. See, e.g., Pfeiffer, 482 Mass. at 122; Commonwealth
v. Beneche, 458 Mass. 61, 80 (2010) (prior bad acts admissible
to show intent).
The juvenile asserts that "the judge found the evidence
insufficient to support a finding that [the juvenile] intended
to burn or set fire to the building." He bases this argument on
the judge's statements in allowing the juvenile's motion for a
required finding of not delinquent on the malicious destruction
of property charges. The judge stated that because the juvenile
was charged with malicious, and not wanton, destruction of
property, the malice requirement necessitated a showing not only
that he "act[ed] deliberately," but also that he acted out of
"cruelty, hostility[,] or revenge." The judge indicated that
the juvenile performed the acts "out of means to be a prankster,
a very dangerous prank, no doubt, but clearly wanton
destruction." Despite her finding as to the absence of malice
for the purposes of malicious destruction of property, the judge
found that the Commonwealth met its burden on the malice
requirement under § 5A, which she noted "[did] not require any
17We note that although McWalter testified that the
juvenile "grabb[ed] the charging block," it reasonably may be
inferred that he did not remove the block, as Bechtold
ultimately removed it from the outlet herself.
25
particular ill will against someone" but just that "it [was]
done with a wrong and unlawful motive or purpose."18
The judge was correct that the malice requirements are
different, and she stated a proper understanding of the malice
requirements of each statute.19 Because the malice requirement
of malicious destruction of property requires a showing of
animus, the judge's references to "wanton" in regard to the
malicious destruction counts does not implicate her thought
process with respect to the specific intent requirement in § 5A.
As mentioned previously, the malice requirement for arson and,
thus, for attempted arson, is "[t]he wilful doing of an unlawful
act without excuse" (citation omitted). Dung Van Tran, 463
Mass. at 26. See Lamothe, 343 Mass. at 419-420 (meaning of
malice for arson is applicable to attempted arson). "Although
both 'malicious' and 'wilful' require that a person act
18In finding the juvenile delinquent on attempted arson
after closing arguments, the judge stated,
"I feel that the Commonwealth has proved that it was a
willful act, meaning intentionally and by design, not
accidental or negligent; and that it was done maliciously,
which does not require any particular ill will against
someone. A burning is malicious if it's done with a wrong
and unlawful motive or purpose, if it is the willful doing
of a harmful act without excuse."
19For malicious destruction of property, the Commonwealth
must show "that the [juvenile]'s conduct was 'motivated by
"cruelty, hostility or revenge."'" Commonwealth v. Armand, 411
Mass. 167, 170 (1991), quoting Commonwealth v. Schuchardt, 408
Mass. 347, 352 (1990).
26
intentionally, the definitions shed no light on whether the
statute requires specific or general intent." Pfeiffer, 482
Mass. at 116-117. Attempt to burn a public building under § 5A
requires a finding of specific intent, in addition to a finding
of malice. The fact that the judge found the juvenile to have
been acting as a "prankster" does not eliminate the possibility
that he acted with the specific intent to burn the building; as
discussed supra, that intent may have been formed by the desire
to perform a "prank," the purpose of which was to set off sparks
inside a public building. We presume that the judge was aware
of this, and that she correctly instructed herself on the law.
Commonwealth v. Healy, 452 Mass. 510, 514 (2008).
We recognize the "naiveté" and "immaturity" that children
often display. Commonwealth v. Evelyn, 485 Mass. 691, 699
(2020). Nonetheless, in the light most favorable to the
Commonwealth, the evidence demonstrated that the juvenile
specifically intended his conduct and its consequences: to
perform the challenge and emit sparks from the outlet. This is
prohibited by the language of § 5A. Accordingly, we must affirm
his delinquency adjudications.
Judgment affirmed.