State v. Mendez-Osorio, 297 Neb. 520

Background

On Sept. 4, 2015, Abel Mendez-Osorio allegedly threatened his partner, Katia Santos-Velasquez, with a machete in their mobile home; she fled with two young children and left one child asleep in the home.
Police responded; Santos-Velasquez and neighbors described her as distressed and barefoot; an officer saw the machete in the home and the younger children crying.
Mendez-Osorio was charged with terroristic threats (Count I), use of a weapon to commit a felony (Count II), and misdemeanor negligent child abuse (Count III) under Neb. Rev. Stat. § 28-707(1)(a).
A jury convicted him on all counts; the district court sentenced him to prison terms (3, 4, and 1 years respectively) and ordered postrelease supervision; sentences were ordered concurrent.
The Nebraska Court of Appeals affirmed the convictions and rejected ineffective-assistance claims in part; the Nebraska Supreme Court granted further review.
The Nebraska Supreme Court affirmed the convictions (including child endangerment under § 28-707(1)(a)) but found plain error in sentencing and vacated all sentences, remanding for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
Whether trial counsel was ineffective on the record	Counsel’s performance need not be rejected where record does not show undisputed deficient acts or prejudice	Counsel failed to prepare (interview witnesses) and failed to object to hearsay/leading questions	Court of Appeals and Supreme Court: record insufficient to resolve many claims; where record allowed review, no ineffective assistance shown
Admissibility of victim’s statements to officer and neighbor	Statements admissible as excited utterances and witnesses were testifiable live	Statements were hearsay and should have been excluded	Held admissible as excited utterances; counsel not ineffective for failing to object
Sufficiency of evidence for negligent child abuse under § 28-707(1)(a)	Evidence that children were exposed to aftermath and were frightened supported endangerment of physical/mental health	No direct threats to children; children did not witness the threat	Held sufficient: statute covers indirect exposure and aftermath causing likelihood of harm; conviction affirmed
Sentencing errors: postrelease supervision and concurrency	Sentencing court’s classifications and concurrent terms were permissible as imposed	Sentences unauthorized because use-of-weapon was a Class II felony (no postrelease supervision allowed when concurrent with Class II) and statute mandates consecutive sentence for weapon use	Held plain error: misclassification/postrelease supervision unauthorized and § 28-1205(3) requires weapon sentence be consecutive; vacated sentences and remanded for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficient performance and prejudice test for ineffective assistance of counsel)
State v. Loding, 296 Neb. 670 (2017) (standards for resolving ineffective-assistance claims on direct appeal)
State v. Filholm, 287 Neb. 763 (2014) (appellate pleading particularity when preserving ineffective-assistance claims)
State v. McCurry, 296 Neb. 40 (postrelease supervision and sentencing authority issues)
State v. Ramirez, 287 Neb. 356 (plain error where weapon-use sentence improperly made concurrent)
State v. Crowdell, 234 Neb. 469 (interpretation of “endangers” in child endangerment statute)
People v. Burton, 143 Cal. App. 4th 447 (child endangerment by exposure to domestic violence)
People v. Johnson, 95 N.Y.2d 368 (endangerment encompasses indirect conduct that risks a child’s mental health)