State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio was tried by jury for terroristic threats, use of a weapon to commit a felony (machete), and misdemeanor negligent child abuse arising from a domestic incident in which he threatened the mother while children were present.
Victim fled the trailer at night with two younger children; one child remained inside; witnesses (neighbor and officer) observed the victim distraught and the children upset.
Jury convicted on all counts; district court sentenced to prison terms (3, 4, and 1 years respectively) and ordered postrelease supervision, with all sentences stated to run concurrently.
On appeal the Court of Appeals affirmed convictions, rejecting certain ineffective-assistance claims and holding evidence sufficient for negligent child abuse; it found the record insufficient on other ineffective-assistance claims.
The Nebraska Supreme Court granted further review, affirmed the Court of Appeals on counsel and sufficiency issues, but found plain sentencing errors and vacated sentences for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
1. Ineffective assistance — failure to interview potential witnesses	Trial counsel’s preparation was adequate; appellant failed to identify missing witnesses or how testimony would help.	Counsel failed to prepare and interview witnesses (e.g., machete witness), prejudicing defense.	Affirmed Court of Appeals: record insufficient to resolve on direct appeal; defendant failed to identify specific omitted witnesses or prejudice.
2. Ineffective assistance — failure to object to hearsay/leading questions	Statements to officer and neighbor were admissible as excited utterances; counsel’s failure to object caused no prejudice because declarants testified live and were cross‑examined.	Counsel should have objected to admission of victim’s out‑of‑court statements as hearsay.	Rejected: statements qualified as excited utterances; counsel not shown ineffective on this ground.
3. Sufficiency of evidence — negligent child abuse under § 28‑707(1)(a) (endangerment)	Evidence (victim’s fear, children crying, one child left alone, presence/aftermath) supported a reasonable inference that children were placed in a situation endangering physical or mental health.	No direct threats to children; children did not witness the assault so evidence insufficient for endangerment.	Affirmed conviction: indirect exposure and aftermath may endanger children’s mental/physical health; sufficient evidence for misdemeanor negligent child abuse.
4. Sentencing errors — postrelease supervision and concurrent sentences	Sentencing errors not raised on appeal by parties; sentencing court misclassified weapon offense and improperly ordered postrelease supervision and concurrent service.	(No effective contrary sentencing position preserved on appeal.)	Court found plain error: use‑of‑weapon was Class II (no postrelease supervision allowed when Class II concurrent to Class IIIA), and § 28‑1205(3) requires weapon sentence be consecutive; vacated all sentences and remanded for resentencing.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
State v. Loding, 296 Neb. 670 (appellate review of ineffective assistance on direct appeal)
State v. Filholm, 287 Neb. 763 (particularity required to preserve ineffective‑assistance claims for postconviction review)
State v. Crowdell, 234 Neb. 469 (definition and scope of child endangerment under § 28‑707)
State v. McCurry, 296 Neb. 40 (sentencing/postrelease supervision principles)
State v. Ramirez, 287 Neb. 356 (plain error where weapon sentence ordered concurrent despite statutory mandate)