Juvenile – Threat against a place – ‘Counterman’ instruction

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Where a juvenile was charged with communicating a threat against a place in violation of G.L.c. 269, §14 (b), a substantial risk of a miscarriage of justice resulted when the jurors were not instructed that 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.”

The matter is remanded to the Juvenile Court for further proceedings.

“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. …

“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 communications would be viewed as threatening violence.’ 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. …”

Commonwealth v. Ushon U., a juvenile (Lawyers Weekly No. 10-041-26) (18 pages) (Wolohojian, J.) A motion to dismiss was heard by Brian P. Frane, J., and the case was tried before Joanna Rodriguez, J., in Juvenile Court. Dennis M. Toomey for the juvenile; Hallie White Speight for the commonwealth; Taylor Henley, Leon Smith and Claudia Leis Bolgen submitted a brief for youth advocacy division of the Committee for Public Counsel Services and others, amici curiae (Docket No. SJC-13793) (April 24, 2026).

Click here to read the full text of the opinion.