State v. Bryant , 311 Neb. 206 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/27/2022 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. BRYANT
Cite as 311 Neb. 206State of Nebraska, appellee, v.
John T. Bryant, Sr., appellant.
___ N.W.2d ___
Filed March 18, 2022. No. S-21-428.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence, and such
matters are for the finder of fact. The relevant question for an appellate
court is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
2. Legislature: Intent: Statutes: Appeal and Error. The intent of the
Legislature is generally expressed by omission as well as by inclusion,
and an appellate court is not at liberty to add language to the plain terms
of a statute to restrict its meaning.
3. Criminal Law. Neb. Rev. Stat. § 28-311.01 (Reissue 2016) does not
require that the threatened crime of violence be imminent.
4. ____. The threat for purposes of Neb. Rev. Stat. § 28-311.01 (Reissue
2016) may be written, oral, physical, or any combination thereof.
5. ____. Whether the defendant threatens a crime of violence need not
be determined solely based upon the literal meaning of the defendant’s
words alone.
6. ____. Whether particular conduct constitutes a threat for purposes of
Neb. Rev. Stat. § 28-311.01 (Reissue 2016) depends on the context of
the interaction between the people involved.
7. Appeal and Error: Words and Phrases. Appellate courts often turn to
dictionaries to ascertain a word’s plain and ordinary meaning.
8. Criminal Law: Evidence: Intent. The intent with which an act is com-
mitted is a mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the incident.
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STATE v. BRYANT
Cite as 311 Neb. 206Appeal from the District Court for Madison County: Mark
A. Johnson, Judge. Affirmed.
Kurt P. Leffler for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
In a direct appeal following convictions for terroristic
threats, assault in the third degree, and intimidation by phone
call, the appellant argues that there was insufficient evidence to
support his convictions.
BACKGROUND
Following a jury trial, John T. Bryant, Sr., was convicted
of terroristic threats, a Class IIIA felony, in violation of Neb.
Rev. Stat. § 28-311.01 (Reissue 2016); intimidation by phone
call, a Class III misdemeanor, in violation of Neb. Rev. Stat.
§ 28-1310 (Cum. Supp. 2020); and assault in the third degree,
a Class I misdemeanor, in violation of Neb. Rev. Stat. § 28-310(Reissue 2016), which was enhanced to a Class IIIA felony
under Neb. Rev. Stat. § 28-115(1)(c) (Cum. Supp. 2020),
because it was committed against a pregnant woman.
Bryant’s convictions stem from events that occurred on
September 6, 2019, pertaining to three children Bryant shares
with his ex-wife, who has an additional three children from
another relationship. Based on allegations against the ex-wife,
a juvenile court judge entered an order for the Department of
Health and Human Services (DHHS) to have temporary physi-
cal custody of all of the ex-wife’s children, including those
she shared with Bryant. At the time of the order, Bryant and
his ex-wife’s three children were in Bryant’s physical custody
after being removed from the ex-wife’s care following the
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STATE v. BRYANT
Cite as 311 Neb. 206incident that led to commencement of a juvenile case. DHHS
soon sought and obtained an order of temporary custody with
their agency, rather than with Bryant, because of DHHS’ con-
cerns relating to prior abusive behavior by Bryant toward his
ex-wife that occurred in front of the children.
K.B. was the DHHS caseworker assigned to coordinate the
execution of the temporary custody order. On September 6,
2019, she was 7 weeks pregnant. K.B. testified at trial that
once she received notice of the order, she coordinated with her
team of child and family service specialists.
She testified that she called Bryant at 11:44 a.m. During that
phone call, K.B. notified Bryant of the order and explained that
her job was to pick the children up. She testified that Bryant
was very upset and hung up on her.
K.B. testified that 1 minute later, at 11:45 a.m., Bryant
called back. During the conversation that ensued, she told
Bryant she was sending two DHHS workers to meet him to
pick up the children. Bryant responded that K.B. “was not tak-
ing his kids.”
K.B. stated she maintained contact with Bryant throughout
the day, trying to get him to cooperate. K.B. had sent two
family service specialists to Bryant’s house for the removal of
the children from Bryant’s custody, with the assistance of the
local sheriff’s department. But when K.B. was at the ex-wife’s
house that afternoon on business pertaining to the order, a fam-
ily service specialist informed K.B. that Bryant and his three
children were not at his home.
At 3:45 p.m., K.B. called Bryant to obtain his and the chil-
dren’s location. During the conversation that ensued, Bryant
stated a named judge “deserved a bullet in the head” and a
named juvenile court deputy county attorney “deserved a bul-
let, too.” Bryant then ended that call.
The judge in question had presided over Bryant’s divorce
from his ex-wife and had awarded the ex-wife custodial rights
subject to parenting time with Bryant. The named deputy
county attorney was the State’s representative in the juvenile
case for which the temporary custody order had been issued.
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STATE v. BRYANT
Cite as 311 Neb. 206K.B. testified that she was in the ex-wife’s yard when
Bryant called her back at 3:53 p.m. and immediately stated,
“take my [expletive] kids, consider yourself next on my list
for a bullet.”
K.B. testified that Bryant sounded angry. She testified that
Bryant’s statement about being next on his list for a bullet
frightened her. K.B. testified that she was so upset she vomited
in the ex-wife’s yard. K.B. testified that she was “absolutely
terrified” and trembling as she continued to coordinate the
execution of the order.
Screenshots of K.B.’s call history on her work phone gener-
ally corroborated her testimony. They show two phone calls
between K.B. and Bryant at approximately 11:45 a.m., a call
from K.B. to Bryant at 3:45 p.m., and a call from Bryant to
K.B. at 3:53 p.m.
One of the family service specialists testified that she called
K.B. around 3:30 or 3:40 p.m. to let her know they had arrived
at Bryant’s house and he and the children were not there. She
noticed that K.B. sounded “shaky [and] sad.” K.B. called her
back a few minutes after that. The family service specialist
described that during the phone call, K.B. was sobbing, was
throwing up, and reported that Bryant had “told her that she
was next, like on his list for a bullet like to the head.”
Bryant’s version of events differed somewhat from K.B.’s
version. He testified that around 10:15 a.m., he left with his
children to travel to his oldest daughter’s home for a weekend
visit. At approximately 10:30 a.m., while en route, Bryant
called a supervisor at DHHS to discuss the status of whether he
would receive temporary full custody of the children during the
pendency of the juvenile case. Bryant testified the super­visor
told him she did not know the current status of the situation
and would have someone contact him later.
Bryant testified that K.B. left a voicemail on his phone at
11:47 a.m. and that he did not notice the voicemail until after
he had arrived at his daughter’s home that afternoon. Bryant
testified he did not believe there was any hurry to call K.B.
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STATE v. BRYANT
Cite as 311 Neb. 206back because she simply introduced herself, asked about a
conversation he had with her supervisor, and asked him to call
her back. Bryant testified he tried calling K.B. back, left her a
voicemail, and proceeded with his day.
According to Bryant, he did not learn about the temporary
custody order until after 3 p.m. that day. Bryant testified that
he was upset once he learned of the order because he had spent
the week being told that there was no reason to keep his chil-
dren from him and that he would receive temporary custody.
He admitted that he conveyed this anger to K.B. in a phone call
he initiated around 3:15 p.m.
Bryant testified he discussed with K.B. that in his experi-
ence there was “[o]verreach big time by the family courts”
and the “county attorneys.” He was “very vocal and voiced
[his] opinions.” He claimed that he did not threaten to shoot
anyone or refer to bullets. But Bryant testified he told K.B. the
government needs to step in and “if that’s what it takes is the
government to, basically. . . order the military to take them out,
then maybe that’s what needs to happen to start setting a new
precedence for this.”
Bryant explained that there were two or three calls between
himself and K.B. around this time because cell phone service
was “spotty” and the calls were getting dropped. Bryant testi-
fied with respect to the 3:53 p.m. call that he could not remem-
ber if, but he believed, K.B. called him back. Bryant described
the call as a continuation of the conversation commenced
in the prior call initiated by K.B.—because the first call got
dropped due to poor cell phone reception.
With respect to what he said during the 3:53 p.m. call,
Bryant admitted he said “well, maybe you deserve one too.”
When asked on cross-examination, “[o]ne what?” Bryant sim-
ply answered, “One.” When asked what he was referring to,
he stated, that was “going back into reference to the phone
call that got cut off earlier. . . . The one where I indicated that
maybe it would take the government ordering our military to
step in and take — I mean, if that’s what it took is for them to
take judges or I mean . . . .”
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STATE v. BRYANT
Cite as 311 Neb. 206Bryant testified that when he made these comments to K.B.,
he was not saying them to scare her or intimidate her, but he
wanted someone to “finally kind of wake up and start listening
to the other side of what’s going on.” Bryant testified he did
not believe he was threatening anyone with crimes of violence,
but admitted his statements were reckless. Bryant testified he
did not intend to cause any terror, panic, or fear.
After the State’s case in chief, Bryant moved for a directed
verdict, arguing that the State failed to meet its evidentiary
burden. The district court overruled this motion after finding
that the evidence received provided sufficient factual proof for
the issues to go to the jury. At the close of all evidence, Bryant
renewed his motion for directed verdict. This was again over-
ruled by the court.
The jury found Bryant guilty of terroristic threats, assault
in the third degree, and intimidation by phone call. The jury
acquitted Bryant of a charge of obstructing government opera-
tions. The district court sentenced Bryant to concurrent deter-
minate terms of 18 months’ imprisonment for the terroristic
threats conviction, with 18 months of post-release supervision;
18 months’ imprisonment for the assault in the third degree
conviction; and 2 months’ imprisonment for the intimidation
by phone call conviction. Credit was given for 1 day served.
Bryant does not challenge his sentences on appeal.
ASSIGNMENTS OF ERROR
Bryant assigns that the district court erred in overruling his
motion to dismiss the charges of terroristic threats, assault in
the third degree, and intimidation by phone call on the grounds
of insufficient evidence.
STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence, and
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STATE v. BRYANT
Cite as 311 Neb. 206such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 1
ANALYSIS
As to each of his convictions, Bryant asserts the court erred
in overruling his motion to dismiss for insufficient evidence.
The relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crimes
beyond a reasonable doubt. 2
Third Degree Assault and
Terroristic Threats
We first address Bryant’s assertion that the evidence was
insufficient to support his convictions for terroristic threats and
third degree assault.
Section 28-311.01(1) describes the crime of terroristic
threats:
A person commits terroristic threats if he or she threatens
to commit any crime of violence:
(a) With the intent to terrorize another;
(b) With the intent of causing the evacuation of a build-
ing, place of assembly, or facility of public transporta-
tion; or
(c) In reckless disregard of the risk of causing such
­terror or evacuation.
The intent to terrorize another, for purposes of the crime of
terroristic threats, is an intent to produce intense fear or anxi-
ety in another. 3 Section 28-311.01 does not require that the
1
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
2
Id.3
State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004).
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STATE v. BRYANT
Cite as 311 Neb. 206r­ ecipient of the threat be actually terrorized, and it does not
require an intent to execute the threats made. 4
Section 28-310(1)(b) sets forth the crime of third degree
assault, stating that “[a] person commits the offense of assault
in the third degree if he . . . [t]hreatens another in a menac-
ing manner.” Threatening another in a menacing manner for
purposes of the crime of third degree assault is a promise
to do another person bodily harm which is made in such a
manner as to intentionally cause a reasonable person in the
position of the one threatened to suffer apprehension of being
so harmed. 5
Thus, a violation of § 28-311.01(1)(a) need not produce a
result in the victim, while a violation of § 28-310(1)(b) must
cause a reasonable person to suffer apprehension of being
bodily harmed. 6 Section 28-311.01(1)(a) requires an intent to
terrorize another and is not concerned with the result produced
by an individual’s threat, while § 28-310(1)(b) is violated when
a person acts in a manner that intentionally causes a reasonable
person in the position of the one threatened to feel apprehen-
sion of being bodily harmed. 7
Bryant makes no specific argument that the evidence was
insufficient to establish all the elements of third degree assault
other than to assert that if the evidence was insufficient for the
jury to conclude his statement was a terroristic threat, then it
was likewise insufficient for the jury to find the requisite act of
threatening in a menacing manner for purposes of third degree
assault. Bryant’s argument thus focuses on the crime of ter-
roristic threats.
Bryant argues that when the threat of a crime of ­violence
is “words only,” 8 there must be an unambiguous and ­specific
4
Id.
5
See id.
6
Id.
7
Id.
8
Brief for appellant at 15.
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STATE v. BRYANT
Cite as 311 Neb. 206threat of imminent violence against the person being spo-
ken to before the evidence will be sufficient to establish
all the elements of the crime. Bryant does not argue that
§ 28-311.01(1)(a) is unconstitutional, facially or as applied,
and did not file a notice of an issue of constitutionality of a
statute. 9 He asserts his statement to K.B. that she should con-
sider herself next on Bryant’s list for a bullet, after previously
making statements to K.B. that the judge and the county attor-
ney “deserved a bullet,” was too ambiguous and of too inde-
terminate a timeline for performance to establish the elements
of the crime of terroristic threats, given that the statement was
unaccompanied by any violence or threatening gestures and
was outside the context of a relationship involving past vio-
lence or threats of violence.
In several cases, we have affirmed terroristic threats convic-
tions that were based on words alone. 10 Most apposite to the
case at bar is State v. Saltzman. 11 Therein, we found the evi-
dence was sufficient to support the defendant’s conviction of
three counts of terroristic threats based on three phone calls—
one made to a protective services worker, one made to the
chief of police, and one made to the ex-spouse of a witness at a
prior trial for sexual assault. To the protective services worker,
the defendant said, “‘[Y]ou’re gonna die, you bitch!’” 12 To the
chief of police he said, “‘[Y]ou’re going to die. I’m going to
blow up your house.’” 13 To the witness’ ex-spouse, he said he
“‘was going to get my wife and kids.’” 14
9
See Neb. Ct. R. App. P. § 2-109(E) (rev. 2022).
10
See, State v. Saltzman, 235 Neb. 964, 458 N.W.2d 239 (1990); State v.
Veatch, 16 Neb. App. 50, 740 N.W.2d 817 (2007); State v. Powers, 10
Neb. App. 256, 634 N.W.2d 1 (2001) (disapproved on other grounds, State
v. Smith, supra note 3; State v. Rodriguez, 6 Neb. App. 67, 569 N.W.2d
686 (1997).
11
State v. Saltzman, supra note 10.
12
Id. at 966, 458 N.W.2d at 241.
13
Id. at 966, 458 N.W.2d at 242.
14
Id. at 967-68, 458 N.W.2d at 242.
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STATE v. BRYANT
Cite as 311 Neb. 206[2,3] We observe, first, that these threats were not necessar-
ily of imminent violence. And the language of § 28-311.01 does
not address when the crime of violence is threatened to occur.
The intent of the Legislature is generally expressed by omis-
sion as well as by inclusion, and we are not at liberty to add
language to the plain terms of a statute to restrict its meaning. 15
Whether or not based on “words only,” § 28-311.01 does not
require that the threatened crime of violence be imminent.
[4-6] Nor do we find merit to Bryant’s suggestion that, in a
“words only” case of terroristic threats, those words must be
facially unambiguous. The threat for purposes of § 28-311.01
may be written, oral, physical, or any combination ­thereof. 16
We have never set forth different evidentiary burdens for dif-
ferent methods of threatening the victim. Whether the defend­
ant threatens a crime of violence need not be determined
solely based upon the literal meaning of the defendant’s words
alone. Instead, whether particular conduct constitutes a threat
depends on the context of the interaction between the peo-
ple involved. 17
While Bryant and K.B. did not have a past relationship
involving violence, Bryant’s statements were nevertheless made
in a context that was properly considered by the jury. Accepting
all relevant evidence as true, giving the State the benefit
of every inference reasonably drawn from the evidence, and
resolving every controverted fact in its favor, 18 Bryant was
“very upset” throughout the day in question and resistant to the
order for his children to be taken into the custody of DHHS,
which K.B. was trying to execute. After informing K.B. that
he believed the judge and county attorney “deserved a bullet,”
Bryant told K.B. “take my [expletive] kids, consider yourself
next on my list for a bullet.”
15
See State v. Frederick, 291 Neb. 243, 864 N.W.2d 681 (2015).
16
See State v. Duckworth, 29 Neb. App. 27, 950 N.W.2d 650 (2020).
17
Id.18
See State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002).
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STATE v. BRYANT
Cite as 311 Neb. 206It was reasonable for the jury to infer from these words and
all the relevant surrounding circumstances of this interaction
between Bryant and K.B. that Bryant was not simply mak-
ing philosophical statements about what K.B. and the others
“deserved.” Competent evidence supported the jury’s determi-
nation that Bryant was threatening an act of violence against
K.B. if she executed the custody order in question and that he
did so with either an intent to produce in K.B. an intense fear
or anxiety or with a reckless disregard of the risk of causing
such terror.
Bryant concedes that if his statement constituted a threat
under § 28-311.01, it constituted a threat under § 28-310(1)(b).
There are differences between the elements of § 28-311.01 and
§ 28-310(1)(b), and Bryant does not elaborate, but we find the
evidence was sufficient for the jury to have found Bryant made
a promise to do K.B. bodily harm, which was made in such
a manner as to intentionally cause a reasonable person in the
position of K.B. to suffer apprehension of being so harmed.
Intimidation by Phone Call
Lastly, we address Bryant’s argument that the evidence
was insufficient to support his conviction for intimidation by
phone call. Bryant asserts that the evidence did not support
the elements of the crime because the phone call at issue was
originally initiated by K.B. and he simply called her back to
continue the conversation after the call was dropped due to
poor cell phone coverage.
Section 28-1310(1)(b) provides in relevant part that
[a] person commits the offense of intimidation by tele-
phone call or electronic communication if, with intent
to intimidate, threaten, or harass an individual, the per-
son telephones such individual or transmits an electronic
communication directly to such individual, whether or
not conversation or an electronic response ensues, and
the person:
....
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STATE v. BRYANT
Cite as 311 Neb. 206. . . [t]hreatens to inflict physical or mental injury to
such individual or any other person or physical injury to
the property of such individual or any other person[.]
[7] Section 28-1310(1)(b), in specifying “telephones such
individual,” does not place a time limit on when the tele-
phone call is made in relation to a telephone call initiated
by the victim. At least one other court has rejected, under a
similar statutory scheme, a reading of the verb “telephone”
that would be narrower than its plain and ordinary meaning. 19
We often turn to dictionaries to ascertain a word’s plain and
ordinary meaning. 20 The dictionary definition of “telephone” as
a verb is “to speak to or attempt to reach by telephone.” 21 The
plain and ordinary meaning of “telephones such individual”
in § 28-1310(1)(b) does not require that the conversation be a
new one. Thus, Bryant “telephone[d]” K.B.
Immediately after the connection was made by telephoning
K.B., Bryant made the threat at issue. Nevertheless, Bryant
argues that the jury could only reasonably infer that Bryant’s
intent when telephoning K.B. was to simply continue the con-
versation that had been dropped due to poor cell phone cover-
age. We disagree.
[8] The intent with which an act is committed is a mental
process and may be inferred from the words and acts of the
defendant and from the circumstances surrounding the inci-
dent. 22 And making a threat shortly after the inception of the
call is usually sufficient circumstantial evidence for a jury to
find that the defendant telephoned the victim with the req-
uisite intent to intimidate, threaten, or harass. 23 Despite the
19
In re Shaneace L., 130 N.M. 89, 18 P.3d 330 (N.M. App. 2000) (overruled
in part, State v. Trossman, 146 N.M. 462, 212 P.3d 350 (2009)).
20
State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).
21
“Telephone,” Merriam-Webster.com, http://www.merriam-webster.com/
dictionary/telephone (last visited Mar. 14, 2022).
22
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
23
See In re Shaneace L., supra note 19. See, also, State v. Saltzman, supra
note 10.
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Cite as 311 Neb. 206e­ vidence of a prior dropped call, the evidence here was suf-
ficient for the jury to infer that Bryant meant to intimidate,
threaten, or harass K.B. when he telephoned her.
Bryant does not contest on appeal the other element of
§ 28-1310(1)(b), that he threatened to “inflict physical or men-
tal injury to such individual or any other person or physical
injury to the property of such individual or any other person”
during the call in question. The fact that Bryant telephoned
K.B. shortly after a call initiated by K.B. was dropped due
to poor cell phone coverage does not render the evidence
insufficient to establish all the elements of § 28-1310(1)(b).
Accordingly, we find no merit to Bryant’s argument that the
evidence was insufficient to support his conviction of intimida-
tion by phone call.
CONCLUSION
Having found no merit to Bryant’s arguments that the evi-
dence was insufficient to support the convictions for terroristic
threats, assault in the third degree, and intimidation by phone
call, we affirm the judgment below.
Affirmed.