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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 essential 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 committed is a mental process and may be inferred from the words and acts 

of the defendant and from the circumstances surrounding the incident.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/28/2022 08:07 AM CDT
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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 physical 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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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’ concerns 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 taking 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 family 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 children’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 bullet, 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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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 generally 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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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 children 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 experience 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 testified with respect to the 3:53 p.m. call that he could not remember 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 simply 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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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 overruled 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 operations. The district court sentenced Bryant to concurrent determinate 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, 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 
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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 building, place of assembly, or facility of public transportation; 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 anxiety 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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recipient 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 menacing 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 apprehension 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 terroristic 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 spoken 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 consider herself next on Bryant’s list for a bullet, after previously 

making statements to K.B. that the judge and the county attorney “deserved a bullet,” was too ambiguous and of too indeterminate 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 violence or threats of violence.

In several cases, we have affirmed terroristic threats convictions that were based on words alone. 10 Most apposite to the 

case at bar is State v. Saltzman.

 11 Therein, we found the evidence 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 necessarily 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 omission 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 different methods of threatening the victim. Whether the defendant 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 people 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 making philosophical statements about what K.B. and the others 

“deserved.” Competent evidence supported the jury’s determination 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 telephone call or electronic communication if, with intent 

to intimidate, threaten, or harass an individual, the person 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 telephone 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 conversation that had been dropped due to poor cell phone coverage. 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 incident. 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 requisite 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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evidence of a prior dropped call, the evidence here was sufficient 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 mental 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 intimidation by phone call.

CONCLUSION

Having found no merit to Bryant’s arguments that the evidence 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.