State v. Mendez-Osorio
297 Neb. 520
| Neb. | 2017Background
- On Sept. 4, 2015, Abel Mendez-Osorio threatened the mother of his three children with a machete; the mother fled with two children and left the oldest child alone in the home.
- Police responded; the mother appeared distraught and told officers and a neighbor that Mendez-Osorio had threatened to kill her with a machete; the machete was recovered from the home.
- Mendez-Osorio was tried by jury and convicted of: terroristic threats (count I), use of a weapon to commit a felony (count II), and negligent child abuse (misdemeanor under Neb. Rev. Stat. § 28-707(1)(a)) (count III).
- On appeal to the Nebraska Court of Appeals, he argued ineffective assistance of trial counsel (failure to prepare and failure to object to hearsay/leading questions) and insufficiency of evidence for negligent child abuse; the Court of Appeals affirmed.
- The Nebraska Supreme Court granted further review, affirmed the convictions (including that exposure to domestic violence can constitute child endangerment under § 28-707(1)(a)), but found plain sentencing errors and remanded for resentencing.
Issues
| Issue | Mendez-Osorio's Argument | State's Argument | Held |
|---|---|---|---|
| Ineffective assistance — failure to interview potential witnesses / prepare | Trial counsel inadequately prepared and failed to interview witnesses who could have aided defense | Record does not identify specific omitted witnesses or show prejudice; record insufficient to resolve many claims on direct appeal | Court of Appeals and Supreme Court: no reversible error; claim rejected where record lacks specific facts to decide on direct appeal |
| Ineffective assistance — failure to object to testimony as hearsay | Counsel should have objected to officers’ and neighbor’s testimony relaying victim’s statements | Statements were admissible as excited utterances and witnesses testified live (cross-examination available) | Rejected: admissible under excited-utterance exception; no ineffective assistance shown |
| Sufficiency of evidence for negligent child abuse (§ 28-707(1)(a)) | No direct threats to children; children did not witness the attack; insufficient to show endangerment | Defendant’s conduct placed children in a situation endangering physical or mental health (flight, distress, presence/aftermath) | Affirmed: evidence sufficient—exposure to domestic violence and its aftermath can constitute endangerment under § 28-707(1)(a) |
| Sentencing errors (postrelease supervision; concurrency) | Sentencing authorized as imposed | Sentencing court misclassified use-of-weapon felony and improperly ordered postrelease supervision; statute mandates consecutive sentence for weapon-use felony | Plain error found: sentences vacated and cause remanded for resentencing (postrelease supervision unauthorized; § 28-1205(3) requires consecutive sentence for weapon use) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- State v. Loding, 296 Neb. 670 (review on direct appeal of ineffective-assistance claims requires record sufficiency)
- State v. McCurry, 296 Neb. 40 (postrelease-supervision and sentencing authority)
- State v. Ramirez, 287 Neb. 356 (plain error and consecutive-sentence mandate for weapon-use conviction)
- State v. Crowdell, 234 Neb. 469 (interpretation of “endangers” in § 28-707(1)(a))
- People v. Burton, 143 Cal. App. 4th 447 (child endangerment supported by exposure to domestic violence/aftermath)