State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio was tried by a jury and convicted of: terroristic threats (Class IIIA), use of a weapon to commit a felony (Class II), and misdemeanor negligent child abuse under Neb. Rev. Stat. § 28-707(1)(a).
The underlying incident: defendant threatened the mother with a sharpened machete; she fled the mobile home with two young children leaving a third child alone in the home with defendant; witnesses observed the mother and children upset.
Officer and neighbor testimony described the victim as distraught shortly after the incident; the machete was recovered in defendant’s closet and defendant denied ownership to police.
On appeal defendant (through new counsel) argued ineffective assistance of trial counsel (insufficient preparation; failure to object to leading/hearsay questions) and insufficiency of evidence on the negligent-child-abuse count.
The Nebraska Court of Appeals affirmed convictions; the Nebraska Supreme Court granted further review, affirmed convictions (including negligent child abuse under § 28-707(1)(a)), but found plain sentencing errors and remanded for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
1. Whether ineffective-assistance claims can be resolved on direct appeal	Record does not conclusively show deficient performance or prejudice; many claims require more factual development	Trial counsel failed to adequately prepare and preserved insufficient appellate record; claims should succeed or be preserved for postconviction relief	Affirmed Court of Appeals: some claims rejected on merits; remaining claims are not resolvable on direct appeal because record is insufficient
2. Failure to object to testimony recounting victim’s out-of-court statements	Statements admissible under the excited-utterance exception; witnesses testified live so defendant had cross-examination	Counsel unreasonably failed to object to hearsay/leading questions, prejudicing defense	Rejected defendant’s claim: statements were admissible as excited utterances and no prejudice shown
3. Sufficiency of evidence for negligent child abuse (§ 28-707(1)(a))	Evidence (mother’s flight, children’s distress, defendant’s knowledge children present) supports endangerment of children’s physical/mental health	No direct threats/harm to children; children didn’t witness threat, so insufficient evidence	Affirmed conviction: jurors could reasonably find children were placed in a situation endangering life/physical or mental health (statute covers indirect exposure to domestic violence)
4. Sentencing legality (plain error)	Sentences as imposed (classification, postrelease supervision, and concurrency) were lawful	Sentencing errors: misclassified felony class, unauthorized postrelease supervision, and improperly ordered concurrent sentences for weapon-use count	Court found plain error: vacated all sentences and remanded for resentencing (weapon-use is Class II and mandates consecutive service and precludes postrelease supervision in presence of Class II sentence)

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
State v. Loding, 296 Neb. 670 (2017) (standards for deciding ineffective-assistance claims on direct appeal)
State v. McCurry, 296 Neb. 40 (2017) (postrelease supervision and sentencing authority; plain error doctrine applied to sentencing)
State v. Crowdell, 234 Neb. 469 (1990) (definition and scope of "endangers" under § 28-707(1)(a))
People v. Burton, 143 Cal. App. 4th 447 (2006) (upholding child-endangerment conviction based on exposure to domestic violence and aftermath)
People v. Johnson, 95 N.Y.2d 368 (2000) (application of child endangerment to conduct that risks children’s mental health even if not directly targeted)