State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio was tried by jury and convicted of (1) terroristic threats, (2) use of a weapon to commit a felony (machete), and (3) misdemeanor negligent child abuse for conduct on Sept. 4, 2015.
Facts: during a domestic dispute he threatened the mother with a machete; she fled with two young children, leaving an older child alone in the home; neighbors and a responding officer observed the mother and children upset and terrified.
Trial: prosecution presented victim’s out-of-court statements to an officer and neighbor; defense presented a coworker who testified about the machete.
On direct appeal to the Nebraska Court of Appeals, defendant argued ineffective assistance of trial counsel (failure to prepare and failure to object to hearsay/leading questions) and insufficiency of evidence for the negligent child abuse count. The Court of Appeals affirmed.
The Nebraska Supreme Court granted further review, affirmed convictions (including child endangerment under Neb. Rev. Stat. § 28-707(1)(a)), but found plain error in sentencing and vacated sentences for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ineffective-assistance claims may be resolved on direct appeal	State: record shows no undisputed facts establishing deficient performance	Mendez-Osorio: trial counsel failed to prepare, interview witnesses, and object to hearsay/leading questions	Affirmed Court of Appeals: some claims rejected on record (e.g., no specific missing witnesses); remainder not resolvable on direct appeal due to insufficient record
Admissibility of victim’s out-of-court statements	State: statements admissible as excited utterances; witnesses testified live so confrontation available	Mendez-Osorio: statements were hearsay and counsel should have objected	Held: statements qualify as excited utterances; counsel not ineffective for failing to object
Sufficiency of evidence for negligent child abuse (§ 28-707(1)(a))	State: children were exposed to the threat/aftermath; evidence supports endangerment of physical or mental health	Mendez-Osorio: no direct threat to children and children did not witness the threat	Held: conviction affirmed — indirect exposure and aftermath (flight, fear, children upset) sufficed to support endangerment conviction
Sentencing errors: postrelease supervision and concurrent sentences	State: sentence as imposed was lawful	Mendez-Osorio: (not argued) sentencing contained errors	Held: plain error — postrelease supervision unauthorized where Class II felony was imposed and statute requires consecutive (not concurrent) sentence for use-of-weapon; all sentences vacated and remanded for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
State v. Loding, 296 Neb. 670 (review of ineffective-assistance claims on direct appeal)
State v. McCurry, 296 Neb. 40 (postrelease-supervision limits and plain-error sentencing issues)
State v. Ramirez, 287 Neb. 356 (plain error where use-of-weapon sentence ran concurrently)
State v. Crowdell, 234 Neb. 469 (construction and scope of child endangerment statute under § 28-707)