State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio was tried by jury and convicted of terroristic threats (Count I), use of a weapon to commit a felony (Count II), and misdemeanor negligent child abuse (Count III) arising from a domestic incident in which he threatened the mother with a machete while three young children were in the home.
Victim Katia Santos-Velasquez testified that Mendez-Osorio threatened to kill her with a machete; she fled barefoot with two younger children, leaving the oldest asleep in the home; witnesses and an officer observed the victim and children upset and frightened.
Trial counsel called a defense witness about the machete; defense counsel did not object to certain testimony about the victim’s out-of-court statements and was alleged to have failed to interview potential witnesses.
On appeal to the Nebraska Court of Appeals, Mendez-Osorio argued ineffective assistance of trial counsel and insufficiency of the evidence as to negligent child abuse; the Court of Appeals affirmed convictions and sentences and declined to resolve some ineffective-assistance claims on the incomplete record.
The Nebraska Supreme Court granted further review, affirmed the convictions (including that sufficient evidence 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 (State)	Defendant's Argument (Mendez-Osorio)	Held
1. Whether appellate court can decide ineffective-assistance claims on direct appeal	Court can decide only those claims conclusively determinable from the record; many claims are unresolvable on direct review	Counsel was ineffective for inadequate trial preparation (failing to interview witnesses) and failing to object to hearsay/leading questions	Affirmed Court of Appeals: some discrete claims rejected; remaining claims were not resolvable on the record and thus preserved for postconviction review
2. Whether counsel’s failure to object to testimony about victim’s out-of-court statements was ineffective	Statements were admissible as excited utterances; witnesses testified live so cross-examination possible	Failure to object prejudiced defendant	Held that counsel was not ineffective on this point; statements fell within the excited-utterance exception and cross-examination mitigated prejudice
3. Sufficiency of evidence for negligent child abuse under § 28-707(1)(a) (endangerment)	Evidence (victim’s fear, children’s distress, oldest left alone) shows children were placed in a situation endangering physical or mental health	Defendant argued children were not directly threatened or witnesses of terrorization, so no endangerment	Held evidence sufficient: indirect exposure to domestic violence and aftermath can support endangerment conviction; affirmed conviction under § 28-707(1)(a)
4. Sentencing errors (postrelease supervision and concurrent sentences)	Sentencing court misclassified the weapon-use felony and ordered unauthorized postrelease supervision; statute mandates weapon-use sentence be consecutive to other sentences	Defendant did not raise these errors on appeal	Held plain error: imposition of postrelease supervision and concurrent sentencing for weapon-use contravened statutes; all sentences vacated and remanded for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard)
State v. Loding, 296 Neb. 670 (2017) (direct-appeal review of ineffective-assistance claims limited to record-conclusive issues)
State v. Filholm, 287 Neb. 763 (2014) (requirement that appellate counsel plead particularity to preserve claims for postconviction review)
State v. McCurry, 296 Neb. 40 (2017) (discusses proper sentencing and limits on postrelease supervision)
State v. Ramirez, 287 Neb. 356 (2014) (plain error where court ordered concurrent sentence contrary to statutory mandate for weapon-use)
State v. Crowdell, 234 Neb. 469 (1990) (defines "endangers" and supports application of child-endangerment statute to indirect exposure)
People v. Burton, 143 Cal. App. 4th 447 (2006) (uses child-endangerment statute to address children exposed to domestic violence)
People v. Johnson, 95 N.Y.2d 368 (2000) (child endangerment covers conduct likely to injure child’s mental health even if not directed at child)
State v. Britt, 293 Neb. 381 (2016) (discussion of excited-utterance hearsay exception)