State v. Mendez-Osorio, 900 N.W.2d 776

Background

Defendant Abel Mendez-Osorio was tried by jury for terroristic threats (Class IIIA), use of a weapon to commit a felony (Class II), and misdemeanor negligent child abuse arising from a domestic incident where he threatened the mother with a machete while three young children were in the mobile home.
Victim (Santos-Velasquez) fled the home barefoot with two children after defendant threatened her; the oldest child remained asleep in the home. Officers and a neighbor observed the victim distraught and the younger children upset.
Trial evidence included live testimony from the victim, Officer Pucket, neighbor Maria Amador, and a translator; defense called a coworker regarding the machete’s ownership.
Jury convicted on all counts; district court sentenced to imprisonment (3, 4, and 1 year terms) and ordered postrelease supervision, with all sentences stated to run concurrently.
Court of Appeals affirmed convictions and rejected most ineffective-assistance claims, holding record insufficient to resolve some claims on direct appeal and finding excited-utterance admissibility supported the admission of certain victim statements.
Nebraska Supreme Court granted further review, affirmed convictions (including negligent child abuse under § 28-707(1)(a)), but found plain sentencing errors and vacated sentences for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
Ineffective assistance of trial counsel — failure to interview witnesses / prepare	Counsel’s performance was adequate; record does not show who was omitted or how testimony would help	Counsel failed to interview or adequately prepare witnesses, prejudicing defense	Affirmed Court of Appeals: record insufficient to resolve many claims; where record showed no prejudice or admissible evidence, counsel not ineffective
Failure to object to hearsay / leading questions (statements to officer and neighbor)	Statements were admissible as excited utterances; live witnesses testified so confrontation available	Trial counsel should have objected to hearsay/leading questions	Affirmed Court of Appeals: admission proper under excited-utterance exception; cross-examination available, so no reversible error
Sufficiency of evidence for negligent child abuse (§ 28-707(1)(a) endangerment)	Evidence that children were present, upset, and exposed to aftermath permitted inference of endangerment to physical/mental health	No direct threats to children; children did not necessarily witness the violence; evidence insufficient	Affirmed: indirect exposure to domestic violence and aftermath may place children in a situation endangering their physical or mental health; a rational jury could convict under § 28-707(1)(a)
Sentencing errors — postrelease supervision and concurrent terms for weapon-use conviction	Sentencing imposed postrelease supervision and concurrent terms	Defendant did not specifically challenge sentencing on appeal	Reversed sentencing: plain error — postrelease supervision unauthorized given Class II status and § 28-105(6); § 28-1205(3) mandates the weapon-use sentence be consecutive, not concurrent; sentences vacated and remanded for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficiency and prejudice standards for ineffective assistance of counsel)
State v. Loding, 296 Neb. 670 (discusses when ineffective-assistance claims can be decided on direct appeal)
State v. Filholm, 287 Neb. 763 (requirements for presenting ineffective-assistance claims on direct appeal to avoid procedural bar)
State v. McCurry, 296 Neb. 40 (addresses sentencing and postrelease supervision errors)
State v. Ramirez, 287 Neb. 356 (plain error in ordering concurrency for weapon-use sentence)
State v. Crowdell, 234 Neb. 469 (construction and scope of § 28-707 child endangerment statute)
People v. Johnson, 95 N.Y.2d 368 (endorses imposition of child endangerment liability for exposure to domestic violence affecting mental health)