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; the mother fled with two children and left the oldest child in the home. Police found the machete she described; witnesses observed the mother and children distraught.
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). A jury convicted on all counts.
On appeal to the Nebraska Court of Appeals, Mendez-Osorio claimed ineffective assistance of trial counsel (failures to prepare and to lodge hearsay/leading objections) and argued the evidence was insufficient for negligent child abuse. The Court of Appeals affirmed convictions and sentences in a memorandum opinion.
The Nebraska Supreme Court granted further review. It affirmed the Court of Appeals’ rejection of ineffective-assistance claims that were resolvable on the record, and it affirmed the sufficiency of evidence for negligent child abuse under § 28-707(1)(a) (endangerment).
The Supreme Court found two sentencing plain errors not raised below: (1) the court imposed unauthorized postrelease supervision (because use of a weapon was a Class II felony and § 28-105(6) barred PRS), and (2) the court ordered the weapon-use sentence to run concurrently in violation of § 28-1205(3), which mandates consecutive service. Consequently, the Court vacated all sentences and remanded for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
Sufficiency of evidence for misdemeanor negligent child abuse (§ 28-707(1)(a))	Evidence that defendant threatened mother with machete in presence/awareness of children and aftermath distress supported endangerment conviction	No direct threat to children; children did not witness the assault; insufficient proof of endangerment	Affirmed: evidence was sufficient—children were placed in a situation endangering physical/mental health (indirect exposure to domestic violence qualifies)
Ineffective assistance — failure to interview/unidentified witnesses	Trial counsel adequately pursued defense; defendant did not identify witnesses or show how they would help	Counsel failed to prepare and interview witnesses, impairing defense	Affirmed in part/denied: claim rejected on direct appeal because defendant failed to identify witnesses or show prejudice; remaining claims were not resolvable on the record
Ineffective assistance — failure to object to hearsay/excited-utterance testimony	The challenged statements would be admissible as excited utterances; witnesses testified live so defendant could cross-examine	Failure to object to hearsay/leading questions prejudiced the defense	Rejected: statements admissible as excited utterances; no prejudicial error shown on the record
Sentencing errors — postrelease supervision and concurrency	Sentencing court imposed PRS and ordered concurrent terms	Sentencing was proper as imposed	Reversed in part: sentences vacated for plain error—PRS unauthorized due to Class II conviction; weapon-use sentence must be consecutive under § 28-1205(3); remand for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance + prejudice)
State v. Loding, 296 Neb. 670 (appellate review limits for ineffective-assistance claims on direct appeal)
State v. Filholm, 287 Neb. 763 (requirements for presenting ineffective-assistance claims on appeal to avoid procedural bar)
State v. McCurry, 296 Neb. 40 (plain-error sentencing principles; postrelease supervision issues)
State v. Ramirez, 287 Neb. 356 (weapon-use sentencing must be consecutive; plain error review)
State v. Crowdell, 234 Neb. 469 (definition and scope of "endangers" under § 28-707(1)(a))
People v. Burton, 143 Cal. App. 4th 447 (child endangerment conviction where children exposed to domestic violence/aftermath)