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


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/24/2022 01:05 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. BRYANT
    Cite as 
    311 Neb. 206
    State 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. 206
    Appeal 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
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    311 Neb. 206
    incident 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
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    K.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
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    back 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
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    311 Neb. 206
    Bryant 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
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    311 Neb. 206
    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 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
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    r­ 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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    threat 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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    [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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    It 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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    . . . [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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    e­ 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.