-: SJC 13317, Commonwealth V a Juvenile.
-: Okay.
-: I noticed that my sister is not yet present.
-: Oh, here she is.
Okay, we're all set.
Attorney May.
-: Good morning, Attorney Michelle Mankin on behalf
of the juvenile, may it please the court.
With the Commonwealth now having rightly agreed
that chapter 266, Section 5A,
includes a specific intent element.
The main dispute for this court's consideration is whether
there was sufficient evidence of specific intent
on the record here, and we actually have an excellent record
for making that determination.
We have the Commonwealth's clearly articulated theory
of culpability.
The Commonwealth's theory, as stated by the trial ADA,
was that the juvenile did willfully attempt the penny
challenge, the TikTok penny challenge,
and we have the judge's findings about what this was,
and the judge here actually found that this was a prank,
which may be what Justice Gaziano was thinking of
in the prior argument. (everyone chuckles)
-: I thought I was losing my mind.
Michelle: The judge did--
-: I appreciate you correcting me.
-: The judge did state numerous times
that the juvenile high school student
was just being a prankster and more importantly,
that this was a wanton act.
-: But no, that's not really accurate, right?
I mean, it was a wanton act with respect to the charges
that were directed out.
-: That's right. -: Right, but not,
didn't find that it was wanton with the ones
that he was found delinquent on,
because there's a different definition
of maliciousness, malice, right?
Would mean--
-: Well, it was the exact same conduct.
-: It was the exact same conduct,
but I want you to be accurate in what you're saying.
The court didn't say with respect to what was found
with delinquent that it was wanton conduct.
-: Well, I can accurately explain what the judge said
on the record.
In discussing the malicious destruction of property counts,
which she directed out, she said this was not malicious
within the meaning of that statute.
This was wanton.
This was a prank.
That's what this was.
He was trying to be a trickster.
This is clearly wanton conduct.
She said, "I can't direct a verdict of the lesser offense,"
I'm sorry, "of wanton because it's not a lesser offense.
"So I have to acquit him of malicious destruction
"of property."
And so what we're arguing is that that determination
that the conduct was wanton, clearly wanton,
is inconsistent with a finding that it was intentional.
Wantonness in the context of malicious destruction
of property means heedlessly and in reckless disregard
for the consequences.
There's a case, Commonwealth versus Woods
in 2019 appeals court case, which talks about busting
down a door where the object was not to bust down the door.
It was something else.
The damage to the door was incidental.
Gaziano: Okay, can I ask you about the impact
-: That was wanton. -: and the fact
that there were two incidences?
So arson includes some type of scorching or charring
of a structure, correct?
Michelle: It can.
-: Okay, and then if we have,
and there's evidence on the first time that
at least the outlet is discolored or charred, correct?
Or scorched?
Michelle: There was, yes.
-: All right, so then he does it the first time,
in the light most favorable, he does it the first time.
So wouldn't he know the second time that it's likely
to occur if I haven't been a repeat offender essentially?
-: So I have two responses to that.
One is, no, not necessarily,
and the other is it doesn't matter, and I'll explain both.
With regard to what was observable
at the January 14th incident, the first incident,
it's notable that the teacher who responded to the sounds
that she heard in that area of the classroom did not notice
any damage to the outlet immediately.
It was only upon close inspection about a week later
that she was able to see anything,
and she did describe it as, let me find her exact words.
I think she did call it blackening.
I don't have those words in front of me, but--
Lowy: Black Charring on the outlet
and area around the outlet?
-: I think that was actually the second incident,
if I'm not mistaken.
-: So we're talking -: yeah, I think the second
-: about the first incident. -: Incident is more severe,
I think, right?.
-: So, yeah, that's right.
So, and we do actually have, this court has,
in the record appendix of page 19,
a photograph of the damage, and it's,
I would characterize it as extremely minimal
and difficult to notice, and that was not in evidence
at trial, but the trial judge had done a motion to dismiss
and did have that knowledge of what that damage was.
In any event, it was so minimal
that a juvenile special education student
wouldn't necessarily recognize that that was anything more
than a discoloration or a blackening,
that there was actual damage to the structural integrity
of the thing.
-: But the statute uses the word burn, right?
It doesn't require you set fire.
I mean, Commonwealth makes a big deal out of that, right?
-: Well, so before I get back to justice Gaziano's,
Kafker: Yeah, no, don't.
(officials talk over each other)
-: The question about, and it does kind of relate to yours.
So the question about whether, you know, this was sufficient
is really a question of whether this was a completed arson,
which is not really a question on the table,
and in order to answer that question,
I think it's important, if you look at the law
about superficial damage is sufficient.
Pfeiffer talks about it.
Pfeiffer is a case that's really important
to resolving this case, I think,
and if you trace it to the roots of that principle,
the case that this was discussed in was a case
where the attorney had come in with the actual piece of wood
that had been damaged and tried to convince the jury
that this was not actually enough damage,
and what happened is the trial judge gave really thorough
instructions, and I have them here,
and described what the jury would have to find in order
to conclude that there had been enough damage to, so,
but that was not done here.
That's not on the table here.
-: But your point, too, that you were going to make
to me is one, was--
-: It doesn't to. -: It doesn't matter.
-: So tell me why it doesn't matter.
-: So it doesn't matter because certainly it is available
to a trier of fact to consider what the defendant
would have been aware of or likely would have been aware of
in trying to assess whether that was the defendant's purpose
to accomplish that thing that he should have been aware of,
but the proof that he, or a finding that he,
should have been aware of a certain fact does not equate
to a finding that that was his purpose.
So while it might be evidence
that the fact finder can consider, well,
what would've been obvious?
Should he have known from this prior incident
that there could have been this damage
or would he have understood?
-: Isn't the purpose of this challenge to cause sparking
and mayhem, essentially, with this conductive material?
-: That's right, and so what I would argue that you can,
I mean, you can find from the evidence and you can find
from the, I suggest, the judge's findings
about this being a wanton event was that she accepted
that this was an effort at a penny challenge
and that the goal of that penny challenge was
to create sparks, and that's what--
-: Yeah, can I stop you on that, though,
for a moment, though?
Because this is what I'm struggling with.
Two things, the first one is just because it's a prank,
doesn't mean going back to the language of Pfeiffer
that where mere charring of some portion
of their dwelling, here, a public building,
constitutes burning.
So the fact that it's a prank doesn't mean there can't be a
specific intent to cause some portion,
and the second issue, which I think is probably more
important floating around all of this discussion is,
the judge doesn't say anything as to his reasoning
on the attempt, and it's a bench trial.
So we assume that he gave himself--
-: She. -: She, thank you, Gaziano,
gave herself a perfect instruction.
-: Well, we actually have a record
of how the judge instructed herself.
We have it from the motion to dismiss hearing
and more importantly, we have it from the discussion
of the directed verdict that she makes findings,
and she talks about what the law is on the attempted arson,
and she gets it wrong.
She says that you only need malice,
and she describes malice as only a wrongful act
without any excuse.
She doesn't talk about what the juvenile should have known,
what should have been obvious to the juvenile,
but what we know about, so getting back to
what the juvenile might have known,
the evidence of what this, the TikTok challenge videos,
showed, the deputy fire marshall is the witness
who testifies about having seen the videos
and his knowledge of what the challenge is,
and his language is a bright, white light, like lightning,
and sparks, and I think if you think of a sparkler,
an ordinary sparkler, it is not a foregone conclusion
that sparks mean fire or burning.
-: So yeah, so that was my. -: I don't know about that.
I mean, this isn't like a July 4th celebration
where you give a child a sparkler,
and they're standing there as it burns down.
I can't recall if this was a sustained objection
that didn't come into evidence or not,
but wasn't there some discussion of a conversation
between the juvenile and what I think was a co-juvenile
that they wanted a bigger spark?
Wouldn't that be evidence that, in fact,
they knew or that the juvenile knew
that this could be something much more than just a prank,
because they wanted a bigger result,
a bigger consequence to this?
-: Well, but the consequence they were aiming
for was bright light like sparkle,
and there was no discussion by any of the juveniles
of we wanna scorch that outlet,
we wanna melt our own phone chargers.
The goal was these bright lights,
and there was no evidence that the TikTok videos displayed
any sort of charring or any fires.
The discussion in the record about the potential
for fire came strictly from the fire marshal about, sort of,
what he theoretically knew,
and I think it's instructive that the fire department,
on the 21st, which was the day of the second incident,
actually issued this advisory explaining that there's a risk
of fire associated with this challenge,
which I think is evidence that the risk was not obvious.
-: So doesn't that go to justice Gaziano's question about
in the light most favorable to the Commonwealth,
what would the juvenile know from the January 14th incident
that tells you about what the intent would've been
on January 21st?
-: And could I follow up with that?
Because there's one other piece to that.
What is the judge to do in engaging what happened
on January 14th to make of he wouldn't even touch it.
The teacher's testimony was that he was kicking
at the, whatever it is,
Michelle: Charging block.
-: the charger prong.
Wouldn't a reasonable inference be he's kicking
at it because it's too hot to touch?
Michelle: Sure.
-: Right, so now if you can answer
that Justice Lowy's question about how
that informs the next event.
-: So what the judge can infer that the juvenile knew was
that there would be flashes of light, loud noise,
perhaps minimal blackening, which may
or may not be structural impairment of the outlet itself,
and heat, and so let's say that the judge found that.
The question is would the properly instructed fact finder be
able to conclude beyond a reasonable doubt
that his specific intent, his purpose, the motivation
behind what he did, was to burn the building.
Even if you call burning the building a slight melting
or alteration of the outlet, even if you say that,
that's not enough for beyond a reasonable doubt,
and we actually know that this judge was of the opinion that
that wasn't the goal.
The nature of the prank was not to damage the outlet.
The nature of the prank was a light show.
So it's our position that the judge essentially acquitted
this juvenile of the alleged conduct.
-: I think it's a really interesting issue in this case,
and we haven't talked about much in other cases about,
at a bench trial, what the judge says,
how that impacts on whether the judge instructed himself
or herself correctly.
That sort of becomes an interesting issue in this case.
-: Well, it is, and in the case law cited
in my sister's brief, it says, "In the absence
"of a contrary indication, you can assume
"that the judge instructed herself correctly."
Well, here, we have a contrary indication, because she says,
"This is what I need to find.
"It's malice and this is what malice is,
"and I find that satisfied."
And she didn't get malice right,
and she didn't get Pfeiffer right,
because she did not make, sort of,
or at least there was no indication
that she made any assessment of what this juvenile
should have known other than this was a prank,
and there was a another question which has escaped my mind.
So I see my time is up if there's no other questions
-: Okay, thank you. -: on the rest of my brief.
-: Okay, Attorney Black.
-: Good morning.
May it please the court, Johanna Black on behalf
of the Commonwealth.
So just in response, I'm gonna start off
with the judge's commentary on the juvenile acting
as a prankster, committing a prank.
You can't speculate as to what she meant by that.
That would be improper, but you can look to the context
in which she said it, and she said it in the context
of discussing malicious destruction of property,
and that's really, the malice, the maliciousness,
is the only element that the juvenile was actually
challenging on the motion for directed verdict.
The juvenile never raised the issue of intent,
which as we know, based on a number of sources,
but in particular, this court's most recent decision
in Pfeiffer, intent is separate.
It's a separate element from malice and from willfulness
in the context of attempt to burn or attempt to commit arson
under Section 5A.
So here where the judge is talking about her feelings
that the evidence didn't rise to the level of maliciousness
under malicious destruction of property,
which she was correct in saying is a completely different
element from the maliciousness or malice involved in arson,
which is the same as the malice involved in attempted arson,
contrary to what the juvenile keeps trying to argue
when she says the judge misapplied the element of malice.
the judge did not misapply the element of malice.
The judge in talking about the evidence not rising
to malicious destruction of property was simply saying,
the juvenile was acting as a prankster.
He was committing a prank, meaning he wasn't doing this
out of hostility or cruelty to a particular individual,
against someone.
This is an attempt to set fire to or burn a building.
It's not out of hostility towards--
-: Well, that's, I mean, you're opposing counsel says as
following, the specific intent here was to basically create
the arc, the sparkle, not to burn or set fire
to the building, and he's a kid,
and he doesn't think through things,
but that's his specific intent.
Johanna: That's the defense's view of the evidence.
-: How do you deal with that?
Forget about malice and other things.
His specific intent was basically
to create the arc of light, which he's, I mean,
I haven't seen these TikTok videos.
I'm just relying on what the record says they show,
but they don't show the building burning but rather,
sort of, lights, sparks. -: Sparks.
Well, so that's an inference that the juvenile draws
and wants your honors to accept.
That's the only inference that the juvenile wants your
honors to accept, but there's so much evidence there
that the juvenile is disregarding,
and you can take all of that evidence,
all the circumstances, all of the reasonable
and possible inferences that you draw from the evidence.
They don't have to be probable.
They don't have to be inescapable.
Inferences don't have to negate.
The inferences the defense wants you to draw,
really when there's conflicting inferences,
as your honors know, is up to the fact finder,
and the fact finder drew inferences
in favor of the Commonwealth.
So with respect to the evidence,
with respect to the first incident, yes.
So the juvenile was performing the penny challenge.
I don't think there's any dispute,
and the juvenile was doing that on January 14th
as well as January 21st,
and we do know from the evidence specifically,
I believe it was Ms. McCuster,
but one of the female teachers as well as the deputy
from the fire department testified that they know that
during the penny challenge,
juveniles are pushing a cell phone charger into the wall,
pulling it back, putting a penny on the prongs
and then jamming it back in to create sparks,
and we know from the deputy that sparks are caused
by a short circuit and an electrical arc
and that short circuits can cause fires,
and here really it's a mistake of judgment as to how much--
-: Well, again, our best evidence of what this kid knows is
what the TikTok videos show,
and it looks like they show just the arc of light.
I understand you, and we're also dealing with a--
-: But isn't that significant in terms of setting a fire?
He knows that by plugging an electrical piece,
a cell phone charger, into an electrical outlet,
he's creating what appears to be fire?
-: Agree, it's stupid as can be,
but he's not an electrical engineer.
He doesn't know anything about short circuits.
He just knows I'm gonna show off to my friends
that I can create this a of light.
Again, what sort of reason--
-: Well he knows that the penny melts.
So he knows there's heat.
Kafker: He knows what melts?
-: The penny.
Kafker: Oh, the penny, in the videos,
do they show the penny being a melted object at the end?
-: I believe the deputy describes it.
Lemme just double check.
-: I thought he described the actual penny,
in one of the incidents, was melted in such a way,
but to just to follow up on Justice Kafker's point,
all of that gloss is in the light most favorable
to the defense or to the juvenile,
and we're looking at this in the light most favorable
to the Commonwealth. -: That's correct.
-: So at least with respect to all of the inferences
that can be drawn from what the juvenile likely knew
or understood, do we have enough?
-: I think so. -: Do we have enough?
-: I don't think the juvenile needs
to understand the intricacies of how a fire is caused.
I think juvenile needs to understand that by doing this,
you can cause a fire, and when you look at his actions,
the fact he never called for help, I mean,
not to jump to the second incident,
but he tries this again, not once again, but twice again.
He knows these are sparks, I mean--
Wendlandt: What do you mean twice again?
Johanna: So on January 21st, it appears from the evidence
that he attempted the penny challenge twice.
-: I see, okay.
So twice on the 21St?
-: Right, and both times, there was crackling noises,
which sounds like a fire.
-: Counsel, can you help me with that piece
of evidence again?
I remember from reading from the record that I thought
that was a conversation that was testified to
between the juvenile and another juvenile
about how they wanted, was that sustained
or was that overruled?
I remember there was an objection,
but I can't remember if that was in evidence or not.
-: So in the police reports that counsel submitted with
or that the juvenile submitted with his brief,
that conversation is contained.
I didn't file a motion to strike.
Maybe I should have, but I figured at argument,
we could just sift through what you can look at
and what you can't.
Obviously the police reports aren't relevant to the issues,
'cause it's really a trial issue here, and then at trial,
I believe the ADA or 303 attempted to elicit
that conversation, but it was objected to by the juvenile.
I can't remember if the conversation in the police report
would fall under defendant statement
or completeness of what the defendant's response might have
been, if it was, in fact, admissible, but in any event,
the objection was sustained and the conversation did not
come out in evidence at trial. -: Thank you.
I appreciate that, thank you.
-: So just as you were saying, the juvenile wants you
to think that he was just trying to create a light show,
but there's charring.
There was charring to the outlet in the first incident
and the deputy said, the teacher,
when she looked at the outlet,
sorry, I'm just losing my pages.
Here we go.
Lowy: Are you looking for what the teacher's going
to observe on the 14th or the 21St?
-: The teacher on the 14th when she went back a week later.
I believe she said.
Sorry about that.
She said it was,
have it right here, sorry.
She said it was charred.
So the teacher on the 14th, when she saw the charger cube
that day, said it was blackened, did not appear very usable,
no cord was attached to it.
Then when she went back about a week later
and looked at the outlet, which was presumably the 21st,
she saw that the outlet was charred and blackened
around the bottom, right socket,
and the deputy, himself, said,
when he got there on the 21st,
he initially looked at Ms. Betchtold's classroom,
which was the classroom where the incident
on the 21st occurred, but that he also went
to the other classroom where the incident
on the 14th occurred, and he saw, during cross examination,
when you look at the questions and the answers he gave,
the reasonable inference from that evidence is
that the outlet from the 14th was charred as well.
So you have evidence that it was charred,
and one important point is that this is an attempt.
It's not successful completion of arson.
-: Yeah, except for, and and again,
I appreciate Justice George's point that I may be reading
this in the light most favorable,
but the whole point is this TikTok thing is
you can do this thing, but you're not gonna set fire
to your house.
You're not gonna--
-: You are, though.
The Deputy says short circuits cause fires.
If there's enough insulation, then they may not,
but a mistake of judgment, under Peasley,
doesn't negate an attempt.
-: I mean, again-- -: So the Juvenile doesn't
have to understand.
-: The videos are not introduced at trial.
So we don't have the TikToks.
We don't know whether they're sitting
in their living room setting off these things
and getting a chuckle, or they're at somewhere else
where they don't mind whether they burn
down the house or not.
We don't know any of that, right?
-: Right, I don't know if that really is that probative,
though, as to this juvenile's state of mind.
-: No, it is.
Again, it's a prank, it's a stupid one,
but it's being encouraged by kids in a way
that looks like it doesn't cause the kind of,
they're not setting fire to their own homes, but again, I--
-: Well, you don't know that.
That's not in evidence.
-: Well, I know that the TikTok challenge produces an arc.
That's what it does.
Johanna: Electrical arc.
-: Right, and I read the fire chief's description.
It doesn't say anything gets set on fire.
It just says there's an arc--
-: That also wasn't in evidence, though.
Are you talking about the memo?
-: I was reading the transcript, page 40,
I think it was page 47.
That's the transcript of this, right?
-: Yeah. -: But it's dangerous.
He says it's like when you see on the streets
where the wires come down, and they're sparkling.
-: He says short circuits cause fires,
that the amount of insulation or the amount of overloading
to a circuit can affect whether it actually goes that far,
but under Peasley--
Wendlandt: I'm sorry, how old was the juvenile?
-: How old was the juvenile?
I believe he was 17.
Double check.
Wendlandt: So let's assume he was 15.
-: He was 17 because, yeah,
I don't want to give too much identifying info.
-: All right, but still-- -: He was 17, I believe,
just based on the probationary period.
-: Okay, and so we are to assume that a 17-year-old
would know about a short circuit causing fires?
-: He might have been 16 at the time of the incident.
I'm sorry. -: I think he was 15, actually.
-: 15, okay, I apologize.
-: Harold would have the acumen to know that a short circuit
would set a fire absent sufficient insulation.
Is that the Commonwealth's position?
-: I think all that matters is that you see an electrical
spark, and it's what would a reasonable person think seeing
that electrical spark and knowing that a penny melts,
that there's charring, that suggests heat.
I think a 15-year-old can infer--
-: I'm sorry, did he know that the penny would melt?
Did that happen the first time or the second time?
-: The penny melted the second time.
We don't know whether it melted the first time.
-: That's my point.
He wouldn't know that the penny melted
until after it happened.
Johanna: Well, he knows not to touch the prongs
when the penny drops onto it.
The deputy testified that the challenge is to put a penny in
and jam in the wall. -: Understood, I'm just saying,
-: Don't touch the prongs. -: He wouldn't necessarily know
that the penny melts as a result.
Sometimes it happens, sometimes it doesn't,
and there's no evidence that it happened the first time.
-: But electrical sparks looking like lightning.
Budd: No, no, that's fine.
-: I mean, that suggests, I think there's a reasonable
inference that someone knows that causes heat.
-: That's fine, but a penny melting is different from sparks.
-: But they want the sparks,
which resembles fire. -: I understand all that.
That's fine, okay.
-: Still, Counsel, also, it's significant to me,
or at least it hears significant, that Ms. McCusker,
I think, sees him kicking at the cube.
I think that's a big deal that--
Johanna: That he is trying to use his foot.
-: He's not trying to use his hand.
Johanna: Right, to protect his hand.
I think defense wants to make it--
-: He knows it's hot.
He knows it's really hot or he wouldn't be--
-: Keeping a more sensitive part away from it,
and I also think the 14th
and the 21st are separate incidents.
You can look at what he learned on the 14th.
You can look at what he learned during the first incident
on the 21st, and--
Wendlandt: He's charged with both, right?
-: He's charged with both, one count for each.
If I could just double check my notes,
see if there's anything else I want to touch on.
I also just do wanna point out, the defense only talks about
what a reasonable 15-year-old would think
or a reasonable person in a 15-year-old's shoes would think
with respect to, if this court doesn't find specific intent,
the juvenile never raised that with respect
to specific intent, and again, it's the light most,
it's a sufficiency analysis.
It's not a 33E.
We're not looking to see whether the judge
should have instructed herself with respect
to specific intent how a 15-year-old would view things.
It's a sufficiency analysis where the evidence is viewed
in the light most favorable of the Commonwealth.
We're not even reaching the issue
of a reasonable 15-year-old,
because it's the crime specific intent.
It's not general intent like under Pfeiffer
for the completed commission of arson,
and again, the juvenile does raise issues
about him having an IEP, an individualized education plan.
All we know is that he was one of the students
that required smaller class sizes.
-: I'm confused which way that cuts, what you're arguing.
Johanna: I don't think it's--
-: Because it's a specific intent crime for a 15-year-old
with a learning, whatever that IDP plan's called.
-: We don't know why, no.
All we know is that he was
on students required smaller class sizes.
We don't know was the individualized education plan based
on any physical or intellectual disability,
a sensory disability?
We don't know, and that really, if it's a defense
or it's evidence that would try to cut against the evidence
from which you draw reasonable inferences
in favor of the Commonwealth,
you would think that'd be up to the juvenile to present,
and there wasn't any evidence of it.
We don't know what any of his disability or disabilities may
or may not have been, the degree,
how they might even impact his ability to understand.
-: But we assume we're talking about a 15-year-old
as opposed to an adult.
-: Right, but it's a crime that's not specific to juveniles,
-: Well, we're also-- -: and juvenile sentencing
and punishment and the court system itself is geared
towards protecting juveniles in a different way than adults.
This crime does apply to adults too.
So we can't just look at it through the lens
and make decisions solely based on the fact
that it's a juvenile involved in this case.