State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio threatened the mother of his three children with a machete during a domestic incident; the mother fled the home with two children and left the oldest child alone with defendant. Police arrived shortly after; defendant had a sheathed machete in the home.
Charged with terroristic threats (count I), use of a weapon to commit a felony (count II), and negligent child abuse (misdemeanor endangerment under Neb. Rev. Stat. § 28-707(1)(a)) (count III). Jury convicted on all counts.
On appeal defendant argued (1) ineffective assistance of trial counsel (failure to prepare, failure to object to hearsay/leading questions) and (2) insufficiency of the evidence for negligent child abuse because he did not directly threaten or harm the children.
The Nebraska Court of Appeals affirmed convictions and rejected or declined to resolve certain ineffective-assistance claims as record-insufficient; it found the record supported negligent-child-abuse conviction.
Nebraska Supreme Court granted further review: it affirmed the convictions (including that exposure to domestic violence can constitute endangerment under § 28-707(1)(a)), but found plain error in sentencing and vacated all sentences for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
Whether ineffective-assistance claims can be decided on direct appeal	Many claims are without merit or can be decided from the record	Counsel failed to prepare and failed to object; trial counsel was ineffective	Court: Some claims rejected on the merits (e.g., failure to object to excited-utterance testimony); other claims could not be resolved on record and were properly left for postconviction review.
Admissibility of victim’s out-of-court statements to police/neighbor	Statements were admissible as excited utterances; live witnesses testified so confrontation preserved	Statements were hearsay and counsel erred by not objecting	Held: Excited-utterance exception applied; no prejudicial error from lack of objections.
Sufficiency of evidence for negligent child abuse (endangerment) under § 28-707(1)(a)	Evidence showed children were placed in situation endangering their physical/mental health (mother terrified, children upset, one left alone)	Conduct did not target children; children did not directly witness the threat so no endangerment	Held: Conviction affirmed; indirect exposure and aftermath may constitute endangerment; jury could rationally find guilt.
Sentencing errors: postrelease supervision and concurrency	Sentencing was lawful as imposed	Sentencing erroneous because use-of-weapon was Class II felony (barred postrelease) and § 28-1205(3) mandates consecutive sentence for weapon use	Held: Plain error found; sentencing unauthorized (postrelease supervision) and court erred by ordering concurrent sentences — all sentences vacated and remanded for resentencing.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
State v. Loding, 296 Neb. 670 (2017) (when ineffective-assistance claims can be addressed on direct appeal and record sufficiency rule)
State v. McCurry, 296 Neb. 40 (2017) (postrelease-supervision limitations and plain-error review)
State v. Crowdell, 234 Neb. 469 (1990) (definition of “endangers” for child-abuse statute and coverage of indirect endangerment)
People v. Johnson, 95 N.Y.2d 368 (2000) (endangerment can include conduct that risks a child’s mental health even if children were not direct targets)
People v. Burton, 143 Cal. App. 4th 447 (2006) (affirming misdemeanor child-endangerment conviction based on domestic violence exposure/aftermath)
State v. Ramirez, 287 Neb. 356 (2014) (plain error where use-of-weapon sentence improperly ordered concurrent and sentencing rules violated)
State v. Filholm, 287 Neb. 763 (2014) (requirements for presenting ineffective-assistance arguments on appeal to avoid procedural bar)