State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio was tried by jury for 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) after a domestic incident in which he threatened the mother with a machete while three young children were in the mobile home.
Victim testified Mendez-Osorio sharpened a machete, threatened to kill her, and she fled the home barefoot with two younger children, leaving the oldest child asleep inside. Police and a neighbor observed the victim distraught and the children frightened.
Jury convicted on all counts; district court sentenced to prison terms (3, 4, and 1 years respectively) and ordered postrelease supervision; sentences were ordered concurrent.
On appeal, Mendez-Osorio claimed ineffective assistance of trial counsel (failure to prepare/interview witnesses; failure to object to hearsay/leading questions) and insufficiency of evidence for negligent child abuse.
Nebraska Court of Appeals affirmed; Nebraska Supreme Court granted further review, affirmed convictions (including misdemeanor 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 / trial preparation	Counsel failed to interview witnesses and inadequately prepare; record shows potential gaps	Record lacks identification of specific omitted witnesses or how testimony would aid defense; review on direct appeal is insufficient	Court of Appeals and Supreme Court: no reversible error; record insufficient to resolve on direct appeal
Ineffective assistance — failure to object to hearsay/excited utterance testimony	Counsel should have objected to officers’/neighbor’s testimony recounting victim’s statements	Statements were admissible as excited utterances; witnesses testified live so defendant could cross-examine	Counsel not ineffective for failing to object; testimony admissible under excited-utterance exception
Sufficiency of evidence — negligent child abuse (endangerment under § 28-707(1)(a))	No direct threat or harm to children; children did not necessarily witness the threat; insufficient proof of endangerment	Defendant’s conduct placed children in situation endangering their mental/physical health (mother’s flight, children frightened, oldest left alone)	Evidence sufficient for misdemeanor negligent child abuse (endangerment) — conviction affirmed
Sentencing errors — postrelease supervision and concurrency	Sentencing court imposed postrelease supervision and ordered concurrent sentences	(State did not contest but statute precludes PRS when a Class II felony sentence is imposed concurrently; § 28-1205(3) mandates that weapon-use sentence run consecutively)	Supreme Court found plain error: vacated all sentences and remanded for resentencing (PR supervision not authorized; weapon-use sentence must be consecutive)

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
State v. Loding, 296 Neb. 670 (standard for resolving ineffective assistance claims on direct appeal)
State v. Filholm, 287 Neb. 763 (particularity required when raising claims to avoid procedural bar)
State v. McCurry, 296 Neb. 40 (postrelease supervision and sentencing authority)
State v. Ramirez, 287 Neb. 356 (plain error in concurrent sentencing where statute mandates consecutiveness for weapon-use)
State v. Crowdell, 234 Neb. 469 (definition and scope of “endangers” under § 28-707)
People v. Burton, 143 Cal. App. 4th 447 (child endangerment liability for exposing children to domestic violence aftermath)
People v. Johnson, 95 N.Y.2d 368 (endangerment as risk to child welfare from conduct not directly targeting the child)
State v. Britt, 293 Neb. 381 (excited-utterance hearsay exception)