State v. Bryant

311 Neb. 206

971 N.W.2d 146

STATE of Nebraska, appellee,

v.John T. BRYANT, Sr., appellant.

No. S-21-428.

Supreme Court of Nebraska.

Filed March 18, 2022

Kurt P. Leffler, Lincoln, 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 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.

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. 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 ...."

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

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...