State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio lived with partner Katia Santos-Velasquez and their three children (ages 3–6) in a two-bedroom mobile home.
On Sept. 4, 2015, after an argument, Mendez-Osorio sharpened a machete, threatened to kill Santos-Velasquez, and she fled barefoot with two children, leaving the oldest child asleep in the home.
Neighbors and responding officer observed Santos-Velasquez distraught and the two children upset; officer recovered a sheathed machete from the home; defendant denied anything happened.
Mendez-Osorio was tried by jury and convicted of (1) terroristic threats, (2) use of a weapon to commit a felony, and (3) negligent child abuse (misdemeanor under Neb. Rev. Stat. § 28-707(1)(a) — endangerment).
On appeal, he alleged ineffective assistance of trial counsel (failure to prepare, failure to object to hearsay/leading questions) and insufficiency of evidence for negligent child abuse; the Court of Appeals affirmed convictions and sentences; Nebraska Supreme Court granted further review.
Nebraska Supreme Court affirmed convictions (including that exposure to domestic violence supported negligent child abuse under § 28-707(1)(a)) but found plain sentencing errors and vacated all sentences for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ineffective assistance of trial counsel can be resolved on direct appeal	State: record shows counsel’s objections were not required because statements were admissible as excited utterances; some claims lack record support	Mendez-Osorio: trial counsel failed to adequately prepare, failed to interview witnesses, and failed to object to hearsay/leading questions	Court: affirmed Court of Appeals — some claims rejected on merits (excited utterance admissibility), others not resolvable on direct appeal because record insufficient; no reversible ineffective assistance shown
Sufficiency of evidence for negligent child abuse (§ 28-707(1)(a): endangerment)	State: defendant’s threats and the resulting flight of mother with children placed children in situation endangering life/physical/mental health	Mendez-Osorio: no direct threats to children, children did not witness the terrorization, so no endangerment	Held: conviction affirmed — statute covers indirect exposure/aftermath of domestic violence; reasonable jury could find endangerment
Admissibility of victim’s out-of-court statements to officer and neighbor (hearsay)	State: statements made shortly after event while victim was distraught — admissible as excited utterances	Mendez-Osorio: statements were hearsay and counsel should have objected	Held: statements admissible as excited utterances; counsel not ineffective for failing to object
Sentencing errors: postrelease supervision and concurrent sentences for weapon use	State: sentencing imposed PRS and concurrent terms	Mendez-Osorio: (did not raise below) sentence imposed as concurrent with PRS ordered	Held: plain error — sentencing misclassified weapon use and ordered unauthorized postrelease supervision; statute requires weapon-use sentence to run consecutively; all sentences vacated and remanded for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-part ineffective assistance standard: deficient performance and prejudice)
State v. Loding, 296 Neb. 670 (2017) (standards for when ineffective-assistance claims may be resolved on direct appeal)
State v. Filholm, 287 Neb. 763 (2014) (requirements for presenting ineffective-assistance claims on appeal to preserve review/postconviction consideration)
State v. McCurry, 296 Neb. 40 (2017) (discusses postrelease supervision eligibility and sentencing authority)
State v. Ramirez, 287 Neb. 356 (2014) (plain error where court ordered concurrent sentence for weapon-use conviction contrary to statutory mandate)
State v. Crowdell, 234 Neb. 469 (1990) (definition and scope of "endangers" under § 28-707(1)(a))
People v. Burton, 143 Cal. App. 4th 447 (2006) (child endangerment conviction upheld where child exposed to aftermath of domestic violence)
People v. Johnson, 95 N.Y.2d 368 (2000) (endangerment statute covers conduct that risks harm to child’s mental health even when not directed at child)
State v. Britt, 293 Neb. 381 (2016) (discussion of excited-utterance hearsay exception)
State v. Gunther, 271 Neb. 874 (2006) (appellate power to remand for lawful sentence)