State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio was tried by jury for 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 where he threatened the mother with a machete while three young children were in the home.
Victim Katia Santos-Velasquez fled the trailer with two younger children; the oldest child remained asleep in the living area. Neighbors and an officer observed the victim distraught and the younger children upset. The machete was recovered in the home.
The jury convicted on all counts; district court sentenced 3 years (terroristic threats), 4 years (use of a weapon), and 1 year (negligent child abuse), and ordered postrelease supervision and that sentences run concurrently.
On appeal to the Court of Appeals, Mendez-Osorio argued ineffective assistance of trial counsel (failure to prepare/interview witnesses; failure to object to hearsay/leading questions) and insufficiency of the evidence for negligent child abuse. The Court of Appeals affirmed convictions and sentences, rejecting some claims and finding the record insufficient to resolve others.
The Nebraska Supreme Court granted further review, affirmed the convictions (including sufficiency for negligent child abuse under § 28-707(1)(a) based on endangerment via exposure to domestic violence), but found plain error in sentencing and vacated sentences for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mendez-Osorio)	Held
Whether trial counsel was ineffective for inadequate pretrial preparation (failing to interview potential witnesses)	Counsel acted reasonably; record does not show omitted witnesses or how they would help defendant	Counsel failed to interview witnesses and thus was unprepared, prejudicing defense	Court: Record insufficient to resolve on direct appeal; Court of Appeals correctly rejected or declined to decide these claims on record
Whether counsel was ineffective for failure to object to testimony recounting victim’s out‑of‑court statements	Statements admissible as excited utterances; witnesses testified live so confrontation not denied	Failure to object to hearsay and leading questions deprived defendant of a fair trial	Court: No ineffective assistance—statements fell within excited‑utterance exception and witnesses were subject to cross‑examination
Sufficiency of evidence for negligent child abuse under § 28‑707(1)(a) (endangerment)	Evidence (victim’s fear, children upset, oldest left alone, poor living conditions) supported inference children were placed in a situation endangering physical or mental health	No direct threats or harm to children; children did not directly witness the assault, so evidence insufficient	Court: Conviction affirmed—endangerment includes indirect exposure/aftermath of domestic violence; jury could reasonably find guilt
Sentencing errors (postrelease supervision; concurrent sentences)	Original sentencing was lawful as imposed	Sentencing improperly included unauthorized postrelease supervision and ordered mandatory weapon‑use sentence concurrent	Court: Plain error; vacated all sentences and remanded for resentencing (weapon‑use was Class II and must run consecutively; postrelease supervision unauthorized)

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two‑part ineffective assistance standard)
State v. Loding, 296 Neb. 670 (direct‑appeal review limits for ineffective assistance claims)
State v. McCurry, 296 Neb. 40 (sentencing/postrelease supervision issues)
State v. Ramirez, 287 Neb. 356 (plain error where weapon‑use sentence ran concurrently)
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 supported by exposure/aftermath of domestic violence)
People v. Johnson, 95 N.Y.2d 368 (endangerment applies to conduct risking mental health of children even if not directed at them)
State v. Filholm, 287 Neb. 763 (particularity required when preserving ineffective‑assistance claims on direct appeal)