Commonwealth v. Shannon Bennett.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-810

COMMONWEALTH

vs.

SHANNON BENNETT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the

defendant was convicted of threatening to commit a crime, in

violation of G. L. c. 275, § 2. The charge stemmed from a

verbal altercation between the defendant and her neighbor (the

victim) during which the defendant said that she "was locked and

loaded." The defendant went on to say that she has "white

privilege." There was evidence of longstanding discord between

the two, and the victim testified that she believed the

defendant intended to shoot and kill her and her daughter. This

fear was exacerbated by the victim's belief that the defendant

and her son had weapons in the house.
On appeal, the defendant argues, among other things,1 that

she is entitled to a new trial because the judge failed to

instruct the jury in accordance with her rights under the First

Amendment to the United States Constitution. More specifically,

she argues that under Counterman v. Colorado, 600 U.S. 66

(2024), and Commonwealth v. Cruz, 495 Mass. 110 (2024), the

judge was required to inform the jury that the Commonwealth must

prove beyond a reasonable doubt that she was aware of or

consciously disregarded a substantial risk that the

communication at issue would be viewed as threatening violence.2

The Commonwealth appropriately concedes that this omission

requires us to vacate the judgment of conviction. Although the

error was not preserved, the failure to properly instruct the

1 The defendant also claims that the judge abused his
discretion by permitting the jury to consider numerous uncharged
bad acts. Given our conclusion, we need not address this
argument. Should a second trial take place, the trial judge
will be in the best position to evaluate the challenged bad act
evidence and make an appropriate ruling.

2 The judge instructed the jury that the Commonwealth was
required to prove four elements beyond a reasonable doubt:

"First, that the defendant expressed an intent to injure a
person now or in the future. Second, that the defendant
intended that her threat be conveyed to a particular
person. Third, that the injury that was threatened, if
carried out, would constitute a crime. And fourth, that
the defendant made the threat under circumstances which
could reasonably have caused the person to whom it was
conveyed to fear that the defendant had both the intention
and the ability to carry out the threat."

2
jury in the circumstances created a substantial risk of a

miscarriage of justice such that a new trial is required. See

Commonwealth v. McCray, 93 Mass. App. Ct. 835, 845-846 (2018).

That said, we do not agree with the Commonwealth's position

that the principle of double jeopardy precludes a retrial. To

the contrary, where, as here, the evidence presented at trial

"was sufficient to allow a rational jury to find beyond a

reasonable doubt that [the defendant] had the requisite mens

rea" there is no constitutional bar to retrying the defendant.

Cruz, 495 Mass. at 116.

Accordingly, the judgment is vacated, the verdict is set

aside, and the matter is remanded to the Boston Municipal Court

for a new trial, if the Commonwealth chooses to pursue one.

So ordered.

By the Court (Vuono, Neyman &
Sacks, JJ.3),

Clerk

Entered: February 26, 2026.

3 The panelists are listed in order of seniority.

3