State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio was tried by jury and convicted of terroristic threats (class IIIA), use of a weapon to commit a felony (class II), and misdemeanor negligent child abuse under Neb. Rev. Stat. § 28-707(1)(a).
Incident: during a late-night domestic dispute the defendant threatened the mother, Katia Santos-Velasquez, with a sharpened machete; she fled barefoot with two young children leaving a third child asleep in the home.
Witnesses (neighbor, translating city employee, and responding officer) described the victim as distraught and the children as frightened; the officer recovered a sheathed machete from the defendant’s closet.
On direct appeal the Court of Appeals affirmed convictions, rejecting several ineffective-assistance claims and finding sufficient evidence to support negligent child abuse; the Nebraska Supreme Court granted further review.
The Nebraska Supreme Court affirmed the convictions (including under § 28-707(1)(a) for endangerment) but found plain error in sentencing: (1) unauthorized postrelease supervision given the class II felony, and (2) improperly ordering the use-of-weapon sentence to run concurrently despite statutory mandate of consecutive service; vacated all sentences and remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for failing to interview potential witnesses / prepare for trial	Mendez-Osorio: counsel failed to investigate and call witnesses who could have aided defense	State: appellant failed to identify specific missing witnesses or show how testimony would help; record insufficient to resolve on direct appeal	Court: Affirmed Court of Appeals — record insufficient to find ineffective assistance on this ground on direct appeal
Whether counsel was ineffective for not objecting to hearsay/leading questions about victim’s out-of-court statements	Mendez-Osorio: counsel should have objected to testimony recounting victim’s statements	State: statements were admissible as excited utterances and witnesses testified live (cross-examination possible)	Court: Rejected claim — statements admissible as excited utterances; no prejudice shown
Sufficiency of evidence for negligent child abuse under § 28-707(1)(a) (endangerment)	Mendez-Osorio: no direct threat to children; children did not witness the attack; no proof of effect on children’s health	State: defendant knew children were present; victim’s flight and children’s fear created a situation exposing children to probable harm or mental injury	Court: Affirmed — evidence sufficient to support conviction for endangerment (exposure to domestic violence and aftermath may endanger child’s physical or mental health)
Sentencing errors: postrelease supervision and concurrent sentences	Mendez-Osorio: (not raised on appeal) sentencing included postrelease supervision and ordered concurrent sentences	State: (not argued) sentencing misstated felony class and ignored statute requiring consecutive sentence for weapon use	Court: Found plain error — postrelease supervision unauthorized when class II weapon use present; § 28-1205(3) mandates consecutive sentence for weapon use; vacated sentences and remanded for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two-part ineffective-assistance test)
State v. Loding, 296 Neb. 670 (standard for deciding ineffective-assistance claims on direct appeal)
State v. Filholm, 287 Neb. 763 (particularity required on direct appeal to preserve 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 in contravention of statute)
State v. Crowdell, 234 Neb. 469 (interpretation of "endangers" in child endangerment statute)
People v. Burton, 143 Cal. App. 4th 447 (child endangerment conviction where child exposed to domestic violence aftermath)
People v. Johnson, 95 N.Y.2d 368 (endangerment can be based on conduct exposing a child to risk of harm to mental health)