State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio threatened the mother of his three children with a machete during a late-night domestic incident; the mother fled with two children and left one child alone in the home.
Police arrived shortly after; victim appeared terrified and barefoot; officer found a sheathed machete in the home.
Defendant was tried by jury and convicted of 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).
On direct appeal to the Court of Appeals, defendant challenged trial counsel’s effectiveness (failure to prepare/interview witnesses; failure to object to hearsay/leading questions) and the sufficiency of evidence for negligent child abuse; the Court of Appeals affirmed.
The Nebraska Supreme Court granted further review, affirmed the convictions (including the § 28-707(1)(a) endangerment conviction), but found plain error in sentencing and vacated all sentences for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
Ineffective assistance — failure to interview potential witnesses	Trial record does not show counsel was deficient; defendant did not identify specific witnesses or how testimony would help	Counsel was ineffective for inadequate preparation and failing to interview witnesses	Affirmed Court of Appeals: claim rejected because defendant failed to identify witnesses or show prejudice; remaining claims not resolvable on record
Ineffective assistance — failure to object to hearsay/leading questions	Statements to officer and neighbor were admissible as excited utterances; witnesses testified live so cross-examination was possible	Counsel erred by not objecting to hearsay and leading questions, causing prejudice	Held no error: statements were admissible under excited utterance exception and live testimony allowed cross-examination
Sufficiency of evidence — negligent child abuse under § 28-707(1)(a) (endangerment)	Evidence that children were present, frightened, and the mother fled with them supported a finding that children were placed in a situation endangering their mental/physical health	No direct threats to children; children did not witness the assault so conviction not supported	Affirmed: circumstantial and testimonial evidence (victim’s fear, children’s distress, child left alone) was sufficient to support conviction for endangerment
Sentencing errors — postrelease supervision and concurrency	Sentences originally included postrelease supervision and were ordered concurrent	Defendant did not raise sentencing issues on appeal	Court found plain error: (1) misclassification led to unauthorized postrelease supervision contrary to § 28-105(6); (2) statute § 28-1205(3) mandates consecutive sentence for weapon-use and forbids concurrency; thus all sentences vacated 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 (standards for evaluating ineffective-assistance claims on direct appeal)
State v. McCurry, 296 Neb. 40 (discusses sentencing and postrelease supervision issues)
State v. Ramirez, 287 Neb. 356 (plain error found where concurrent sentence improperly ordered for weapon-use offense)
State v. Crowdell, 234 Neb. 469 (interpreting "endangers" under § 28-707(1)(a))
State v. Filholm, 287 Neb. 763 (requirements for appellate presentation of ineffective-assistance claims to avoid procedural bar)
State v. Abdullah, 289 Neb. 123 (related discussion on appellate review of ineffective-assistance claims)
People v. Burton, 143 Cal. App. 4th 447 (child endangerment conviction where child exposed to domestic violence aftermath)
People v. Johnson, 95 N.Y.2d 368 (endangerment can cover risk to children’s mental health from domestic violence exposure)