State v. Mendez-Osorio, 297 Neb. 520

Background

On Sept. 4, 2015, Abel Mendez-Osorio threatened the mother of his three children with a machete in their mobile home; the mother fled with two children and left the third asleep with the defendant. Police arrived; the machete was recovered.
Mendez-Osorio was charged with (1) terroristic threats, (2) use of a weapon to commit a felony, and (3) misdemeanor negligent child abuse under Neb. Rev. Stat. § 28-707(1)(a).
At trial the victim and two neighbors/officers testified about the victim’s frightened condition and the children’s distress; defense witnesses gave conflicting testimony about ownership/use of the machete.
A jury convicted on all counts. The district court imposed concurrent prison terms and ordered postrelease supervision.
The Nebraska Court of Appeals affirmed convictions and sentences; the Nebraska Supreme Court granted further review, affirmed the convictions (including sufficiency for negligent child abuse), but found plain sentencing error and vacated sentences for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
Whether trial counsel was ineffective (general/preparation)	Counsel performed adequately; record insufficient to show deficiency	Counsel failed to investigate/interview witnesses and inadequately prepare	Court: Record insufficient to resolve most IAC claims on direct appeal; specific failure-to-interview claim rejected for lack of specificity
Whether counsel was ineffective for failing to object to testimony recounting victim’s out-of-court statements	Statements admissible as excited utterances; live witnesses were cross-examined	Failure to object to hearsay deprived defendant of effective assistance	Held: No ineffective assistance — statements qualified as excited utterances and witness testimony was subject to cross-examination
Sufficiency of evidence for negligent child abuse under § 28-707(1)(a) (endangerment)	Evidence that defendant threatened mother in presence/awareness of children and that children were distressed supported endangerment	Argued no direct threat or injury to children and children did not witness the assault	Held: Affirmed — rational jury could find children were placed in situation endangering their physical or mental health (indirect exposure to domestic violence suffices)
Legality of sentence: postrelease supervision and concurrent sentences for weapon-use felony	Sentencing court imposed postrelease supervision and ordered concurrent sentences	Defendant did not raise sentencing error on appeal	Held: Plain error — postrelease supervision unauthorized due to Class II felony; statute mandates weapon-use sentence be consecutive to other sentences. Sentences vacated and remanded for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard)
State v. Loding, 296 Neb. 670 (standard for deciding IAC claims on direct appeal)
State v. Filholm, 287 Neb. 763 (particularity required to preserve IAC claims for postconviction review)
State v. McCurry, 296 Neb. 40 (postrelease supervision and sentencing authority issues)
State v. Ramirez, 287 Neb. 356 (plain error where weapon-use sentence ordered concurrent)
State v. Crowdell, 234 Neb. 469 (definition and scope of "endangers" under § 28-707)
People v. Burton, 143 Cal. App. 4th 447 (children’s exposure to domestic violence can support child-endangerment conviction)
People v. Johnson, 95 N.Y.2d 368 (endangerment may be based on risk to children’s mental health from domestic violence)