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SJC-13793
COMMONWEALTH vs. USHON U., a juvenile.
Middlesex. January 5, 2026. - April 24, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.
Social Media. Threatening. Evidence, Threat, Juvenile delinquency. Practice, Criminal, Instructions to jury, Objection, Juvenile delinquency proceeding. Practice, Civil, Motion to dismiss. Statute, Construction. Probable Cause. Delinquent Child. Juvenile Court, Delinquent child.
Complaint received and sworn to in the Middlesex County Division of the Juvenile Court Department on January 24, 2024.
A motion to dismiss was heard by Brian P. Frane, J., and the case was tried before Joanna Rodriguez, J.
The Supreme Judicial Court granted an application for direct appellate review.
Dennis M. Toomey for the juvenile. Hallie White Speight, Assistant District Attorney, for the Commonwealth. Taylor Henley, Committee for Public Counsel Services, Leon Smith, & Claudia Leis Bolgen, for youth advocacy division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief. 2
WOLOHOJIAN, J. The primary issue in this appeal is whether
in order to obtain a conviction or adjudication of delinquency
under G. L. c. 269, § 14 (b), which criminalizes the making of
threats against places, the Commonwealth must prove as an
element of the offense that the individual who made the threat
"consciously disregarded a substantial risk that his
communications would be viewed as threatening violence."
Counterman v. Colorado, 600 U.S. 66, 69 (2023). We conclude
that the Commonwealth must so prove. Further concluding that
the evidence was sufficient to sustain the jury's adjudication
of delinquency, and that probable cause supported the complaint,
we remand for further proceedings consistent with this opinion.1
Background. The juvenile, a high school student, reposted2
on his public TikTok3 account an image of a man in a school
1 We acknowledge the amicus brief submitted in support of the juvenile's argument by the youth advocacy division of the Committee for Public Counsel Services, Citizens for Juvenile Justice, and the Massachusetts Association of Criminal Defense Lawyers.
2 According to TikTok, a repost is a way "to share videos you find interesting with your friends and community on their For You [personalized video] feed." TikTok Support, https:// www.tiktok.com/support/faq_detail?id=7543897459731421752&categor y=web_account [https://perma.cc/6XGF-8YEX].
3 "TikTok is a social media platform that allows users to create, publish, view, share, and interact with short videos overlaid with audio and text." TikTok Inc. v. Garland, 604 U.S. 56, 63 (2025). "Opening the TikTok application brings a user to the 'For You' page –- a personalized content feed tailored to the user's interests." Id. This personalized content feed is 3
hallway aiming an assault rifle with his finger on the trigger
while carrying additional arms on his hip. Blazoned across the
image was the declaration "Me at School." (together, school
shooting image or image). After another student at the
juvenile's school, who had previously been the juvenile's
girlfriend, saw the image and alerted school officials, the
juvenile was charged with communicating a threat against a place
in violation of G. L. c. 269, § 14 (b). He was tried before a
jury in the Juvenile Court who returned a finding of
delinquency, and the juvenile appealed. The judge subsequently
vacated the delinquency finding, continued the case without a
finding, and imposed conditions of probation until the
juvenile's nineteenth birthday.4 The case is now before us after
we allowed the juvenile's application for direct appellate
review.
created using a proprietary algorithm to recommend videos based on "[e]ach interaction a user has on TikTok[, such as] watching a video, following an account, [or] leaving a comment." Id.
4 The Juvenile Court docket sheet shows that the underlying case was dismissed when the juvenile turned nineteen and completed his sentence of probation. Nonetheless, the Commonwealth does not argue that this appeal is moot. And, given the potential harmful collateral consequences of a "delinquency complaint, with or without a finding of delinquency," we exercise our discretion to reach the merits of the juvenile's arguments on appeal. Commonwealth v. Preston P., 483 Mass. 759, 768 (2020). 4
Discussion. 1. Effect of Counterman on prosecutions under
G. L. c. 269, § 14 (b). General Laws c. 269, § 14 (b), was
enacted in the wake of the terrorist attacks on September 11,
2001, and is "intended to punish the communication of any threat
that a deadly, dangerous, or destructive device, substance, or
item is or will be present or used at a specified place or
location." Commonwealth v. Kerns, 449 Mass. 641, 652 (2007).
In order to establish a violation of the statute, the
Commonwealth must prove "(1) that the defendant wilfully
communicated, or caused to be communicated, a threat (2) to use
or have present (3) one of an enumerated list of dangerous
devices, substances, or items capable of causing death, serious
bodily injury, or substantial property damage (4) at a place or
location." Id. at 651. The statute does not require that "the
person to whom the threat is communicated be a potential target
of the threatened crime." Id. at 652.
The statute criminalizes the making of a threat concerning
a particular place or location. When such threats are "'serious
expressions' conveying that a speaker means to 'commit an act of
unlawful violence,'" they are "true threats" (alteration
omitted). Counterman, 600 U.S. at 74, quoting Virginia v.
Black, 538 U.S. 343, 359 (2003). See O'Brien v. Borowski, 461
Mass. 415, 423 (2012), abrogated on another ground by Seney v.
Morhy, 467 Mass. 58, 61-62 (2014) (adopting United States 5
Supreme Court's definition of "true threat" in Black).
Historically, true threats lay "outside the bounds" of the
protection of the First Amendment to the United States
Constitution. Counterman, 600 U.S. at 72. But because of the
potential chilling effect criminalization of true threats may
have on free speech, the Supreme Court recently concluded that
the First Amendment requires proof of an element of subjective
mens rea in order to sustain a conviction in true threat cases.
Id. at 77-78. Specifically, the Court held that the State is
required to prove that a speaker "consciously disregarded a
substantial risk that his communications would be viewed as
threatening violence." Id. at 69.
After the Supreme Court reached this conclusion in
Counterman, we applied its reasoning and holding in a case
involving a prosecution under G. L. c. 275, § 2, which
criminalizes threats to commit a crime. See Commonwealth v.
Cruz, 495 Mass. 110, 111 (2024). We concluded that G. L.
c. 275, § 2, must be construed to require, among other things,
that the Commonwealth prove "that the defendant consciously
disregarded a substantial risk that the communication would be
viewed as threatening violence and delivered it anyway." Cruz,
495 Mass. at 115.
We see no principled reason not to reach the same
conclusion here with respect to G. L. c. 269, § 14 (b). To be 6
sure, there are differences between the two statutes. Most
notably, whereas G. L. c. 275, § 2, protects people and their
possessions, G. L. c. 269, § 14 (b), protects places or
locations. See Kerns, 449 Mass. at 654. But the statutes share
the common feature of criminalizing the making of threats, and
for this reason, we are of the view that the holding and
analysis of Counterman applies to both in equal measure.
Accordingly, in order to sustain a conviction under G. L.
c. 269, § 14 (b), the Commonwealth must prove, in addition to
the elements set out in the statute, see Kerns, 449 Mass. at
651, that the defendant (or, as in this case, the juvenile)
consciously disregarded a substantial risk that his
communication would be viewed as threatening violence and made
it, or caused it to be made, nonetheless.
We turn now to the implications of this holding for the
case at hand. The juvenile was tried in November 2024, after
the Supreme Court's decision in Counterman and shortly before
our decision in Cruz. But the jury did not receive an
instruction consistent with Counterman. Instead, the jury were
instructed that the Commonwealth needed only to prove "[(1)]
that the juvenile engaged in a communication or caused a
communication; [(2)] that the communication constituted a threat
that was a firearm or a shotgun or a rifle, or an item capable
of causing a death, serious bodily injury, or substantial 7
property damage will be used [at] a place or location, or is
present or will be present at a place or location; and [(3)]
that the juvenile's actions were done willfully and not by
accident or mistake." The jury were instructed that proof of
willfulness required "only that the acts of the juvenile be
willfully performed so long as the acts were intentional and not
due to an accident or inadvertence."
The juvenile argues, the Commonwealth concedes, and we
agree that the absence of a Counterman instruction was error.
Where the parties diverge, however, is over whether the error
was preserved. At the conclusion of the instructions, the
juvenile objected "to the instruction on the lawfulness and the
lack of intent, as well as the threats instruction." The
juvenile's counsel did not mention Counterman or request (or
object to the absence of) a Counterman-type instruction.
Although an objection need not be phrased with perfect
precision, something more than the ambiguous objection made here
was required to alert the judge to the missing Counterman
instruction and to preserve the issue for appeal. "It is a
fundamental rule of practice that where a party alleges error in
a charge he must bring the alleged error to the attention of the
judge in specific terms in order to give the judge an
opportunity to rectify the error, if any." Commonwealth v.
McDuffee, 379 Mass. 353, 357 (1979). See Mass. R. Crim. P. 8
24 (b), 378 Mass. 895 (1979). See also Commonwealth v. Chapman,
433 Mass. 481, 489 (2001). Because that did not occur here, we
review to determine whether the error resulted in a substantial
risk of a miscarriage of justice.5 And where, as here, the error
was the omission from the charge of an element of the
Commonwealth's required proof, the substantial risk analysis
requires that we determine "whether the presence of the omitted
element was an ineluctable inference from the evidence at
trial." Commonwealth v. Desiderio, 491 Mass. 809, 810 (2023).
Although, as will be set out in further detail below in our
discussion of the sufficiency of the evidence, the jury could
have reasonably and permissibly inferred that the juvenile
consciously disregarded a substantial risk that the school
shooting image he reposted would be viewed as threatening
violence, that inference was not inescapable. There was no
direct evidence about the juvenile's mental state, and the
circumstantial evidence was not so overwhelming as to compel a
finding of his conscious disregard. See Desiderio, 491 Mass. at
5 The juvenile argues that he should be relieved of the obligation to make a clear objection under the so-called clairvoyance exception to our waiver doctrine. That exception does not apply where, as here, the constitutional theory on which the juvenile relied was sufficiently developed at the time the juvenile should have raised it at trial. See Commonwealth v. Guardado, 491 Mass. 666, 686, S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024). As we have noted, Counterman was decided before the juvenile's trial. 9
821 (even "powerful and persuasive story" presented by
circumstantial evidence may be insufficient to make inference of
knowledge inescapable). Accordingly, the absence of a
Counterman instruction created a substantial risk of a
miscarriage of justice. Cf. Cruz, 495 Mass. at 113-114
(vacating conviction of threatening to commit crime where jury
were not instructed on requisite subjective mental state).
2. Sufficiency of the evidence. The juvenile contends
that the evidence was insufficient to prove (1) that he
willfully reposted the image or (2) that he consciously
disregarded a substantial risk that the image would be seen as
threatening violence.6 In assessing the sufficiency of the
evidence, we take the evidence in the light most favorable to
the Commonwealth to determine whether "any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt" (citation omitted). Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979). "Evidence relied on to
support [an adjudication of delinquency] 'may be entirely
circumstantial,'" and "[t]he inferences a jury may draw from the
6 The juvenile also argues that the Commonwealth was required to prove that the juvenile subjectively intended for others to feel threatened. But whether the speaker intends to convey a threat is "not part of what makes a statement a threat." Counterman, 600 U.S. at 74. Rather, "[t]he existence of a threat depends . . . on what the statement conveys to the person on the other end" (quotation and citation omitted). Id. 10
evidence need only be reasonable and possible and need not be
necessary or inescapable" (quotation omitted). Commonwealth v.
Shakespeare, 493 Mass. 67, 80 (2023), quoting Commonwealth v.
Whitaker, 460 Mass. 409, 416 (2011). Taken in this light, the
evidence showed the following.
The juvenile, a high school student, reposted on his public
TikTok page an image showing the silhouette of a male figure in
a school hallway, standing in a firing stance with an assault
rifle on his shoulder and his finger on the trigger, aiming
toward what may be inferred to be a classroom. Prominently
placed across the image was the phrase "Me at School."7 Because
the juvenile's TikTok account was public, anyone could see what
he posted, or reposted, on the account. The juvenile's former
girlfriend, Beth,8 came across the image while scrolling through
the juvenile's TikTok account. Beth "scroll[ed] and scroll[ed]"
through the juvenile's account before she came across the image.
The image terrified Beth, and she alerted her mother and school
officials to the fact that it appeared on the juvenile's TikTok
account. She also took a screenshot of the image and thus
preserved it on her cell phone.
7 There was no evidence to suggest that the juvenile created the image or affixed the "Me at School" message to it.
8 A pseudonym. 11
Two steps are required to repost an image on one's TikTok
account. First, the user must select an option toward the
bottom of the cell phone screen to bring up a menu of further
options. Once that menu appears, the user must then select the
option to repost. There is a different sequence of movements
required to indicate that one is not interested in an image
posted by another person. The jury could conclude that the
juvenile deliberately took the steps necessary to repost the
image as opposed to taking the steps needed to indicate that he
was not interested in it. See Commonwealth v. Buttimer, 482
Mass. 754, 761 (2019) ("To the extent that conflicting
inferences may be drawn from the evidence, it is for the jury to
decide which version to credit" [citation omitted]).
Three days after Beth first saw the image, the school
resource officer (a member of the local police department)
contacted the juvenile's parents and alerted them to the
juvenile's reposting of it. The officer requested, and the
parents assented to, a search of their home for weapons given
the concern for school safety. The officer then spoke to the
juvenile in his parents' presence about the juvenile's reposting
of the image and how it "puts people in fear." The juvenile
acknowledged that the image reflected his "dark sense of humor."
But the juvenile claimed that he had reposted the image by
accident and removed it immediately from his account once he 12
realized the mistake. The school resource officer confirmed
that the image was not on the juvenile's cell phone.
The jury were properly instructed that the Commonwealth was
required to prove beyond a reasonable doubt that the juvenile
willfully communicated a threat. See Kerns, 449 Mass. at 651.
In addition, because a defense of accident was fairly raised by
the juvenile's statement to the school resource officer, the
jury were also instructed that the Commonwealth had the burden
to prove that the juvenile had not reposted the image by
accident. See Commonwealth v. Ferguson, 30 Mass. App. Ct. 580,
583 (1991) ("Where the evidence raises the possibility of
accident, the defendant is, as [a] matter of due process,
entitled upon request to a jury instruction that the
Commonwealth has the burden of proving beyond a reasonable doubt
that the act was not accidental").
Here, the jury could infer that the juvenile willfully
communicated the image and its message by taking the steps
necessary to repost it to his public TikTok account. Cf.
Hernandez v. Phoenix, 43 F.4th 966, 978 (9th Cir. 2022)
(publicly posting on social media suggestive of intent to
communicate to public). Although the juvenile told the school
resource officer that he had reposted the image accidentally and
deleted it immediately after he realized he had done so, the
jury were not required to credit his explanation of events. See 13
Commonwealth v. Carino, 496 Mass. 783, 785 (2025). It is true
that the image no longer appeared on the juvenile's cell phone
by the time the school resource officer spoke with the juvenile.9
But the jury heard evidence that the officer had alerted the
juvenile's parents before coming to the house not only of the
nature of the image the juvenile had posted, but also of the
officer's desire to search the house for weapons and to speak
with the juvenile about the image. The jury could use their
common sense and life experience to help them decide whether it
was more likely that the juvenile deleted the image immediately
after realizing he had posted it in error as he claimed or at
some later point, such as after learning that the school
resource officer had obtained his parents' consent to search the
home and speak with him about an image showing a man committing,
or about to commit, a school shooting. See Commonwealth v.
Gerhardt, 477 Mass. 775, 787 (2017) ("Jurors may use their
common sense in evaluating whether the Commonwealth introduced
sufficient evidence to satisfy its burden of proof"). See also
Instructions 1.120 & 2.120 of the Criminal Model Jury
9 Although the school resource officer testified that the image was no longer on the juvenile's cell phone, that testimony is not entirely free from ambiguity, in that the officer did not say whether he checked to see whether the image remained on the juvenile's TikTok feed. 14
Instructions for Use in the District Court (2019) (jurors may
use common sense and life experience in determining facts).
We are equally unpersuaded by the juvenile's argument that
the evidence was insufficient to prove beyond a reasonable doubt
that he consciously disregarded a substantial risk that the
image would be seen as threatening violence. To begin with, as
we have already noted, the image showed a male figure in a
school hallway, in a shooting stance with his finger on the
trigger of an automatic rifle aimed toward what can be inferred
to be a classroom, while bearing additional arms. The jury
could conclude that the juvenile –- who was a high school
student -- would have understood that the image depicted a
school shooting and would be seen by others as depicting such.
Given the frequency of highly publicized, school-related
shootings by students, "such violent episodes are matters of
common knowledge." Commonwealth v. Milo M., 433 Mass. 149, 156
(2001). In addition, the jury could find that the juvenile
adopted the phrase "Me at School" when he reposted it, thus
referring to himself and his own high school. The jury could
further conclude that the juvenile consciously disregarded a
substantial risk that reposting the image would be seen as
threatening violence based on the nature of the image and its
accompanying words, the juvenile's acknowledgement that the
image reflected his "dark sense of humor," and his subsequent 15
deletion of it, which inferably indicated his awareness that he
should not have reposted it in the first place. See
Commonwealth v. MacCormack, 491 Mass. 848, 857-858 (2023)
(defendant deleting evidence that cast him in unfavorable light
indicative of consciousness of guilt).
In sum, taken in the light most favorable to the
Commonwealth, the evidence was sufficient to prove beyond a
reasonable doubt that the juvenile acted willfully and with
conscious disregard to a substantial risk that reposting the
school shooting image would be viewed as threatening violence.
3. Motion to dismiss the complaint. On the same grounds
that the juvenile contends that the evidence at trial was
insufficient, the juvenile argues that probable cause did not
support the complaint and that his motion to dismiss was
erroneously denied. "To establish probable cause, the complaint
application must set forth reasonably trustworthy information
sufficient to warrant a reasonable or prudent person in
believing that the defendant has committed the offense"
(citation omitted). Commonwealth v. Manolo M., 496 Mass. 244,
253 (2025). We take the information contained within the four
corners of the complaint application in the light most favorable
to the Commonwealth to determine whether there is probable cause
as to each essential element of the offense. See id.;
Commonwealth v. Newton N., 478 Mass. 747, 751 (2018). The 16
sufficiency of the information supporting a complaint is a
question of law we review de novo. Manolo M., 496 Mass. at 253.
The complaint application here was supported by the school
resource officer's report, the contents of which largely tracked
the evidence that was introduced at trial as we have already set
out above; accordingly, we do not repeat it here.10 And, having
already concluded that the evidence was sufficient to meet the
higher standard of proof beyond a reasonable doubt required to
sustain the adjudication of delinquency, it requires no
additional explanation to conclude that it necessarily meets the
lower standard of probable cause needed to support the
complaint. Nonetheless, we note that the information supporting
the complaint application was arguably even stronger than the
evidence introduced at trial. Specifically, the officer's
report established that the juvenile had given conflicting
versions of his conduct to his father, at one point denying that
he had ever posted the image and at another point saying that he
had posted the image accidentally. The juvenile's shifting
explanations permitted an inference that both explanations were
fabrications. See MacCormack, 491 Mass. at 857 (defendant's
fabrication of events to police was consistent with
10The officer's report did not contain information concerning the steps required to repost an image on TikTok. 17
consciousness of guilt). In addition, the report stated that
the juvenile had previously had "several interactions with the
[local police department] with the threat of violence or
violence," that Beth knew that the juvenile tended to "gravitate
towards dark things," and that the juvenile was "on a
one[-]to[-]one and [was] not allowed to be at school alone."
Cf. Milo M., 433 Mass. at 156 (juvenile's disciplinary record at
school relevant to sufficiency of evidence of juvenile's ability
to carry out threat).
The motion judge correctly denied the motion to dismiss the
complaint.
4. Remaining claims of error. Finally, the juvenile asks
that we review four discrete alleged trial errors.
Specifically, he argues that (1) the school resource officer's
statement to the juvenile about how the image could be viewed by
others was hearsay and should not have been admitted, (2) Beth
should not have been permitted to testify as to how to perform
certain functions using TikTok, (3) the prosecutor improperly
appealed to jury sympathy during closing argument by referring
to Beth being "terrified," and (4) the prosecutor misstated
evidence during closing. The juvenile objected to the first two
alleged errors; he lodged no objection to the third; and, in
response to the juvenile's objection to the fourth, the judge
instructed the jury to disregard the prosecutor's comment. 18
Given the procedural posture of this case, see note 4, supra, it
appears unlikely that any of these issues will arise again, and
we accordingly decline to address them now. See Commonwealth v.
Crowder, 495 Mass. 552, 571-572, cert. denied, 146 S. Ct. 169
(2025) (declining to address alleged trial errors when it is
uncertain whether they will arise at new trial).
Conclusion. To sustain a conviction or adjudication of
delinquency under G. L. c. 269, § 14 (b), the Commonwealth must
prove as an element of the offense that the individual who made
the threat "consciously disregarded a substantial risk that his
Counterman, 600 U.S. at 69. The jury were not given such an
instruction, and a substantial risk of a miscarriage of justice
resulted from the omission. The matter is remanded to the
Juvenile Court for further proceedings consistent with this
opinion. See Commonwealth v. Preston P., 483 Mass. 759, 774
(2020); Commonwealth v. Rotonda, 434 Mass. 211, 222 (2001).
So ordered.