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SJC-11644

               FELIX F., a juvenile   vs.   COMMONWEALTH.



            Suffolk.    February 5, 2015. - May 26, 2015.

 Present:     Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines,
                                  JJ.


Youthful Offender Act. Controlled Substances. Grand Jury.
     Practice, Criminal, Grand jury proceedings, Indictment.
     Evidence, Grand jury proceedings, Threat.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on December 9, 2013.

    The case was heard by Spina, J.


     Paul R. Rudof, Committee for Public Counsel Services
(Joseph D. Mulhern, Jr., Committee for Public Counsel Services,
with him) for the juvenile.
     Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.


    HINES, J.     The defendant, a juvenile, was indicted as a

youthful offender under G. L. c. 119, § 54, for possession of

heroin with intent to distribute, in violation of G. L. c. 94C,

§ 32 (a).    Under the youthful offender statute, a juvenile may
                                                                   2


be prosecuted as an adult if the charge involves the "infliction

or threat of serious bodily harm."     G. L. c. 119, § 54.   Arguing

that the evidence presented to the grand jury was insufficient

to establish this requirement, the juvenile moved to dismiss the

indictment.    A judge in the Juvenile Court denied the motion,1

and the juvenile filed a petition for relief pursuant to G. L.

c. 211, § 3.     This appeal, from the denial of the juvenile's

petition, presents the issue whether evidence of the generalized

potential for harm from the distribution and use of heroin meets

the probable cause standard for "infliction or threat of serious

bodily harm."2    We conclude that it does not and reverse the

decision of the single justice denying the defendant's G. L.

c. 211, § 3, petition.3




     1
       The juvenile was also indicted as a youthful offender on a
charge of possession of marijuana with intent to distribute,
G. L. c. 94C, § 32C (a). The judge allowed the juvenile's
motion to dismiss that indictment. The Commonwealth does not
contest the dismissal.
     2
       Because the single justice concluded that there is no
other adequate appellate remedy to the loss of the protective
nature of juvenile proceedings if a juvenile is erroneously
tried as a youthful offender, this court determined that the
requirements of S.J.C. Rule 2:21, as amended, 434 Mass. 1301
(2001), had been met and permitted the juvenile to pursue this
appeal from the judgment of the single justice.
     3
       If a youthful offender indictment is dismissed, the
prosecutor must proceed by complaint, rather than indictment.
See Commonwealth v. Quincy Q., 434 Mass. 859, 864 (2001).
                                                                        3


       Background.   Only one witness, a Taunton police officer,

testified before the grand jury.     We summarize that testimony as

background for our discussion.     On August 27, 2013, at

approximately 2:45 P.M., the officer observed two males on an

all-terrain, off-road vehicle traveling at a high rate of speed

in the opposite direction on Oak Street in Taunton.     He was

concerned for the safety of the males and other motorists

because of the speed of travel and because the males were not

wearing helmets, a requirement of all-terrain vehicle use.

       The males looked directly at the officer and then turned

onto railroad tracks running perpendicular to the road.     The

officer drove down various crossroads to the railroad tracks in

an effort to get in front of the vehicle, eventually stopping

his police cruiser twenty to thirty yards in front of the males.

When the officer got out of his cruiser, the vehicle stopped and

the two males identified themselves.     The driver was eighteen

years of age and the juvenile, a passenger, was sixteen years of

age.

       The juvenile got off of the vehicle without prompting.     The

officer then ordered the driver to do so and both to lie on the

ground.    After a second officer appeared, the first police

officer pat frisked the driver while the second officer pat

frisked the juvenile.     On the driver, the officer found a baggie

containing a small amount of marijuana, approximately $300, two
                                                                      4


bags of heroin the size of golf balls, two cellular telephones,

a small white pill, and a lighter.    The substance found on the

driver was field tested and indicated positive for heroin.       On

the juvenile, the second officer found a mason jar full of

marijuana, a small baggie of marijuana, and two cellular

telephones.   Both the driver and the juvenile were arrested.

Because the juvenile was on probation, he was taken to a

juvenile detention facility.    When personnel at the detention

facility were preparing the juvenile's clothes to be laundered,

they found a larger baggie containing several smaller baggies of

a substance, believed to be heroin, hidden in a hood of the

juvenile's clothing.

    To support the intent to distribute element of the offense,

the Commonwealth elicited testimony from the police officer

identifying several factors indicative of distribution rather

than personal use:     the packaging, the hidden location, and the

quantity of heroin.    One of the cellular telephones carried by

both the driver and the juvenile was a disposable, inexpensive

telephone often used in the sale of narcotics.     The officer

noted that the driver and the juvenile did not appear to be

under the influence of any drugs and did not exhibit withdrawal

symptoms.

    As to the requirement of the juvenile offender statute that

the offense involve the "infliction or threat of serious bodily
                                                                     5


harm," the Commonwealth adduced testimony that heroin is highly

addictive and a "pretty nasty drug."    The officer related his

professional experience with heroin overdoses, where users

become extremely ill and die.    In addition to the description of

the effect of heroin on users, the officer testified that the

drug trade is associated with acts of violence, explaining that

drug deals may result in "robberies, guns, knives, violence, you

know, injuries involved.   It can be a very violent trade."    He

added that persons involved in the drug trade as drug dealers

are known to be dangerous to themselves as well as others.     No

testimony suggested the juvenile's direct connection to any

violence or threat of violence in the commission of the offense.

The grand jury were instructed that they could consider the

underlying facts of the offense in addition to the testimony

describing the violent consequences of the drug trade to

determine the defendant's youthful offender status.

    Discussion.   In order to support a youthful offender

indictment, the Commonwealth must present evidence sufficient to

support a finding of probable cause as to the following

statutory requirements:    (1) the juvenile was between fourteen

and seventeen years old at the time of the offense; (2) the

offense, if committed by an adult, is punishable by imprisonment

in State prison (i.e., a felony); and (3) the juvenile

previously has been committed to the Department of Youth
                                                                    6


Services, or "the offense involves the infliction or threat of

serious bodily harm," or the juvenile committed certain

enumerated firearms violations.   G. L. c. 119, § 54.

    The juvenile contests the sufficiency of the evidence to

establish probable cause as to the third requirement,

specifically that the offense charged must involve either "the

infliction or threat of serious bodily harm," the only one of

the three options for satisfying the requirement that could be

applicable, and argues that the indictment must be dismissed on

this ground.   See Commonwealth v. Washington W., 462 Mass. 204,

209-210 (2012) (indictment subject to dismissal unless grand

jury presented "with sufficient evidence to support a finding of

probable cause" to believe requirements are satisfied);

Commonwealth v. Quincy Q., 434 Mass. 859, 862-863 (2001).     The

Commonwealth counters that the mere possession of heroin with

the intent to distribute satisfies the definition of "threat"

because heroin is inherently dangerous and possession of heroin

with intent to distribute is a very serious crime that has the

"potential" to cause actual serious bodily harm.   Although we

agree that heroin is a dangerous drug with the potential to

cause overdose deaths and that possession of the drug with

intent to distribute is a serious crime, the potential for harm

derived from heroin is not what the Legislature intended when
                                                                   7


setting forth the "threat" requirement for a youthful offender

indictment.

    In accordance with legislative intent and the approved

usage of the term "threat," we hold that the definition of

"threat" in the juvenile offender statute requires a

communication or declaration, explicit or implicit, of an actual

threat of physical injury by the juvenile.   Accordingly, we

reject the Commonwealth's suggestion that a "threat," for this

purpose, may be based solely on a potential for harm that may

occur independently of the defendant's actions.

    We construe statutes according to the Legislature's intent

as expressed in the words of the statute and read in light of

"the ordinary and approved usage of the language."     Hanlon v.

Rollins, 286 Mass. 444, 447 (1934), citing Commonwealth v. S.S.

Kresge Co., 267 Mass. 145, 148 (1929).   "At the same time, a

statute should be read as a whole to produce an internal

consistency."   Telesetsky v. Wight, 395 Mass. 868, 873 (1985).

Beginning with the words of the statute, the Legislature

expressed its intent with regard to offenses that are serious

and have a potential for harm but which do not themselves

involve either an infliction or threat of serious bodily harm.

In setting forth this requirement for a youthful offender

indictment, the Legislature explicitly enumerated certain

firearms offenses that trigger a youthful offender indictment,
                                                                     8


but did not enumerate any drug offenses.    See G. L. c. 119,

§ 54.    Like heroin, firearms are inherently dangerous,4 but only

firearms offenses are specifically enumerated in the youthful

offender statute.    If the Legislature intended "threat" to

include a mere potential for harm, there would have been no need

to separately enumerate firearms offenses.

     While this is our first opportunity to consider the

application of the statute where the conduct underlying the

crime does not itself involve an explicit threat and there is no

identifiable victim, we are guided as well by our interpretation

of the phrase, "threat of serious bodily harm," in prior cases

under the juvenile offender statute.    See Washington W., 462

Mass. at 210; Quincy Q., 434 Mass. at 863-864; Commonwealth v.

Clint C., 430 Mass. 219, 225-226 (1999).    We have noted that the

"infliction or threat of serious bodily harm" need not be an

element of the crime itself, but the conduct constituting the

offense must involve the infliction or threat of serious bodily

harm.    Quincy Q., supra at 863, citing Clint C., supra at 225.

The parties agree that the conduct test, not the element test,

is operative here and that only the "threat" of serious bodily

harm is at issue here.



     4
       See Commonwealth v. Tu Trinh, 458 Mass. 776, 784 (2011)
(describing firearm as inherently dangerous weapon).
                                                                       9


       We discern no legally cognizable threat of serious bodily

harm in the juvenile's conduct in this case.      From the evidence

presented to the grand jury, it is undisputed that the juvenile

did not engage in conduct that communicated an explicit threat

to any person.    Where, as here, the juvenile has not made an

explicit threat of serious bodily injury, we have considered

whether the conduct involves an implicit threat based on the

effect of that conduct on the victim.      See Washington W., 462

Mass. at 210; Quincy Q., 434 Mass. at 863-864; Clint C., 430

Mass. at 226.    In Clint C., supra at 220, the juvenile was

indicted for rape of a child.      The juvenile had an authoritative

and dominant position over the six year old victim for whom the

juvenile was babysitting.    Id.   In those circumstances, the

invasive nature of penetration combined with the young victim's

vulnerability to domination by the older juvenile was sufficient

to establish an implicit threat of serious bodily harm.      Id. at

226.    In Washington W., supra at 210 & n.4, we emphasized that

the juvenile's conduct must be considered in relation to the

effect on the victim and rejected the Commonwealth's argument

that the act of penetrating a child, without more, satisfies the

threat of serious bodily harm component of the youthful offender

statute.    We concluded, however, that the test was satisfied

because the victim could reasonably perceive an implied threat
                                                                    10


of bodily harm if he were to resist based on the juvenile's act

of pushing him to the ground before penetration.     Id. at 210.

    Our holding today is in accord with our interpretations of

"threat" in other contexts, which consider the effect of the

defendant's actions on a victim where there has not been an

explicit threat.   In our interpretation of the Massachusetts

Civil Rights Act, G. L. c. 12, § 11I, we defined a "threat" as

"the intentional exertion of pressure to make another fearful or

apprehensive of injury or harm."     Kennie v. Natural Resource

Dep't of Dennis, 451 Mass. 754, 755, 763 (2008), quoting Planned

Parenthood League of Mass., Inc. v. Blake, 417 Mass 467, 474,

cert. denied, 513 U.S. 868 (1994).    The offense of threat to

commit a crime, G. L. c. 275, § 2, requires that there be "an

expression of intention to inflict a crime on another"; the

expression may contain an explicit or implicit threat.    See

Commonwealth v. Hamilton, 459 Mass. 422, 426-427 (2011), quoting

Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert.

denied, 532 U.S. 980 (2001).   For purposes of the rape statute,

G. L. c. 265, § 22, "threats of bodily harm" may be expressed or

implied, so long as it is reasonable in the circumstances for

the complainant to be in fear and not resist.     Commonwealth v.

Sherry, 386 Mass. 682, 694, 696 (1982).     Further, a "threat,"

for purposes of the offense of accosting or annoying a person of

the opposite sex, G. L. c. 272, § 53, may occur "even in the
                                                                   11


absence of an explicit statement of an intention to harm the

victim as long as circumstances support the victim's fearful or

apprehensive response."   Commonwealth v. Chou, 433 Mass. 229,

234 (2001).   None of these cases relies on a mere potential for

harm independent of the defendant's specific conduct; instead,

they consider whether the defendant made an explicit threat of

bodily harm or if the defendant's conduct created an implied

threat through its effects on the victim, neither of which

occurred here.

    The Commonwealth attempts to distinguish the facts of this

case by analogizing to manslaughter convictions where

distribution of heroin was determined to be conduct that

"involves a high degree of likelihood that substantial harm will

result to another."   Commonwealth v. Catalina, 407 Mass. 779,

780, 789 (1990), quoting Commonwealth v. Welansky, 316 Mass.

383, 399 (1944).   Commonwealth v. Auditore, 407 Mass. 793, 796

(1990), quoting Welansky, supra.   Those cases support our view,

however, because the court considered whether the defendant

engaged in the wanton or reckless conduct necessary for the

manslaughter conviction by reviewing the defendant's actions and

the circumstances of the heroin distribution.   In Catalina,

supra at 790 & n.12, the defendant's knowledge that the heroin

was highly potent and that the recipient had a low tolerance and

a prior overdose were considered in connection with the inherent
                                                                    12


dangerousness of the drug.    In Auditore, supra at 796, the court

considered the defendant's sale of a type of heroin that was two

times stronger than the average dose and had previously caused

two deaths in the local area.

    In this case, the evidence presented to the grand jury

lacked any information about the potency of the heroin found on

the juvenile.   As there was no identifiable buyer, there was no

information about known history of abuse or the effect that a

sale could have on a buyer.     Although there was evidence that

drug deals can result in "robberies, guns, knives, [and]

violence," there was no evidence that the juvenile's offense

involved weapons or violent conduct.     With other evidence that

the juvenile's conduct created an implied threat of serious

bodily harm, possession of heroin with the intent to distribute

could be a factor supporting that finding.     The mere potential

for serious bodily injury or death from the sale or use of

heroin, however, without evidence of an explicit or implied

threat tied to the juvenile's conduct, is insufficient to

support a youthful offender indictment.

    Conclusion.    Because the evidence presented to the grand

jury does not support a finding that the juvenile's conduct

explicitly or implicitly created a threat of serious bodily

harm, we reverse the decision of the single justice denying the

defendant's G. L. c. 211, § 3, petition.     The case is remanded
                                                               13


to the county court, where the single justice is directed to

enter an order reversing the Juvenile Court judge's order

denying the defendant's motion to dismiss.

                                   So ordered.
