When a judge convicted a juvenile delinquent on two counts of attempted arson attack on a public building, there was sufficient evidence to support the juvenile’s conviction of attempted arson as a felon.
Confirmed.
“On August 27, 2020, the youth was charged in juvenile court with two counts of attempted arson attack on a public building in violation of GLc 266, Section 5A (Section 5A or Attempted Arson Act) and two counts of wanton destruction of property of 1,200 $ or less, in violation of GLc 266, §127 after twice conducting the viral TikTok penny challenge at his high school. On November 2, 2021, the youth waived his right to a jury trial and then went before a judge. Although the judge granted the juvenile’s motion for a non-criminal record on the malicious destruction of property charge, the judge ruled the juvenile delinquent on the two counts of attempted arson of a public building.
“The juvenile appeals, arguing that Section 5A requires proof of intent and that the evidence presented at trial was insufficient to establish that the juvenile acted with specific intent to burn or set fire to the building.” set. He further argues that if the court were to construe attempted arson as a crime committed with general intent, its application to this case would violate principles of due process and the evidence would remain inadequate. Since we note that §5A is a specific premeditated crime, we need not address the latter argument. Having also concluded that there was sufficient evidence to support the juvenile’s convictions of attempted arson on both counts, we affirm. …
“Around January 2020, a TikTok challenge dubbed the ‘Penny Challenge’ gained popularity among teenagers. The challenge, as described by Plymouth Fire Service (Department) Deputy Fire Chief Leo Foley, who saw video footage of the challenge being conducted, involves the use of a cell phone charger with a charging pad, a penny and a wall outlet. A performer of the challenge would plug the charger into the wall outlet, leave it slightly off the wall, slip a penny behind the charging block, and slide the charger back in without the penny making contact with the charger’s prongs. When the charger is pulled out again, the penny slides down, hitting the two prongs of the charger, shorting out and creating an “arc”. …
“Both parties contend that in order to violate Section 5A, one must have a specific intent to burn or set alight a qualifying building, structure or property. …
“From the simple wording of the law, the intent required is specific. … The element of a violation of Section 5A can be broken down into two elements: (1) specific intent to burn down or set alight a qualifying building; and (2) intentional and malicious acts. …
“The youth argues that there was insufficient evidence to prove he intended to burn down or set the building ablaze. …
“…We conclude that the Commonwealth has presented sufficient evidence to establish beyond any reasonable doubt that the youth intended to burn down the building by carrying out the challenge. …
“The youth’s specific intention to burn down the building can be inferred from the consequences of successfully completing the challenge and the facts supporting his attempt to complete the challenge that day. …
“Intention to create sparks, which is the ‘bright white light’ specified in the challenge, is sufficient to demonstrate an intention to burn. …His intent to complete the challenge, the purpose of which is to create sparks within the building, equates to an intent to “burn” the property and satisfies the requirements of §5A. … Completing a challenge aimed at creating sparks or a “bright white light” within a building would fall within the definition of “burning.” For this reason, the youth’s stepping out of the charger with the charger does not diminish his intention to burn, that is, his intention to cause the sparks and generate the heat that leads to the charring. …
“We recognize the ‘naivety’ and ‘immaturity’ that children often display. Commonwealth vs. Evelyn, 485 Mass. 691, 699 (2020). Still, the evidence showed, in the most favorable light for the Commonwealth, that the youth expressly intended his behavior and its consequences: to carry out the challenge and emit sparks from the socket. This is prohibited by the wording of §5A. Accordingly, we must confirm his delinquency convictions.”
Commonwealth v. Qasim Q., a juvenile (Lawyers Weekly No. 10-038-23) (26 pp) (Cypher, J.) The case was tried by Mary O’Sullivan Smith, J., in juvenile court. Michelle Menken for the youth; Johanna Black for the Commonwealth; Cristina F. Freitas and Debbie F. Freitas submitted a brief for the Youth Advocacy Division of the Committee on Public Advisory Services and Others, amici curiae (file number SJC-13317) (April 6, 2023).
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