State v. Mendez-Osorio, 297 Neb. 520

Background

Abel Mendez-Osorio was convicted in district court of terroristic threats, use of a weapon to commit a felony, and negligent child abuse following a September 4, 2015 domestic incident.
The State charged him with a machete-related threat to his partner, Santos-Velasquez, while their three children were nearby in a mobile home.
The jury found him guilty on all counts; the district court sentenced him to concurrent terms and ordered post-release supervision on Counts 1 and 2.
The Court of Appeals affirmed most convictions but vacated and remanded for resentencing due to potential sentencing errors; the Nebraska Supreme Court granted further review.
On direct review, the Supreme Court affirms the Court of Appeals on ineffective-assistance claims and sufficiency of the negligent-child-abuse evidence, but finds plain error in sentencing violations requiring remand for resentencing.
The plain errors identified: misclassification of the weapon-use conviction (Class II vs. III) and improper post-release supervision, and improper concurrency of sentences for use-of-a-weapon conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective-assistance on direct appeal	Mendez-Osorio argues trial counsel was ineffective in various respects.	State contends the record is insufficient for direct-review resolution of those claims.	Appeal-based determination of effectiveness is appropriate; record insufficient for some claims, affirmed for others.
Sufficiency of evidence for negligent child abuse	Record shows endangerment to children was proven by witnesses' observations and home conditions.	Record fails to show direct threats or harm to children; endangerment not proven as charged.	There was sufficient evidence under § 28-707(1)(a) to sustain the negligent child abuse conviction.
Plain error in sentencing	Convictions and sentences correctly aligned; no plain error in sentencing.	Sentencing errors require reversal or modification.	Plain error found in sentencing due to misclassification of the weapon-use felony and improper post-release supervision; remanded for resentencing.
Concurrence/consecutive sentencing for weapon-use	Consecutive sentencing was appropriate where required by statute.	Consecutive sentencing for weapon-use should be enforced, not run concurrently.	Consecutive-sentencing requirement in § 28-1205(3) was violated; sentences vacated and remanded for proper resentencing.
Scope of endangerment statute and child-witness interpretation	Endangerment includes indirect threats affecting children via the aftermath of domestic violence.	Endangerment requires direct threat to the child or evidence of direct harm.	Endangerment under § 28-707(1)(a) may apply to indirect exposure; conviction affirmed.

Key Cases Cited

State v. Loding, 296 Neb. 670 (2017) (ineffective-assistance-review on direct appeal requires only undisputed record facts)
State v. Filholm, 287 Neb. 763 (2014) (claims of ineffective assistance may be reviewed on direct appeal with sufficient record)
State v. Abdullah, 289 Neb. 123 (2014) (preserves appellate review of ineffective-assistance claims with adequate record)
State v. Crowdell, 234 Neb. 469 (1990) (endangerment statute covers direct and indirect consequences of conduct)
State v. Ramirez, 287 Neb. 356 (2014) (plain-error review for sentencing where statutory requirements are misapplied)
State v. McCurry, 296 Neb. 40 (2017) (conviction/sufficiency and sentencing considerations in appeal)
State v. Artis, 296 Neb. 172 (2017) (authority to remand for proper sentencing where error occurred)