State v. Mendez-Osorio, 297 Neb. 520

Background

Defendant Abel Mendez-Osorio was tried by jury on charges of terroristic threats (Class IIIA), use of a weapon to commit a felony (Class II), and misdemeanor negligent child abuse arising from a domestic incident where he threatened the mother with a machete while their three young children were in the home.
Victim Katia Santos-Velasquez testified that defendant sharpened a machete, threatened to kill her, and she fled barefoot with two children; the third child remained asleep in the house. Police and neighbors observed the victim distraught and the children upset.
Jury convicted on all counts; district court sentenced 3 years (terroristic threats), 4 years (use of a weapon), and 1 year (negligent child abuse), with sentences ordered concurrent and with postrelease supervision specified for two counts.
On appeal to Nebraska Court of Appeals, defendant raised ineffective-assistance-of-counsel claims (insufficient preparation; failure to object to alleged hearsay/leading questions) and challenged sufficiency of evidence for negligent child abuse; Court of Appeals affirmed convictions and sentences in a memorandum opinion.
Nebraska Supreme Court granted further review: it affirmed the appellate court’s rejection of ineffective-assistance claims and the sufficiency of evidence for negligent child abuse, but found plain error in sentencing and vacated all sentences for resentencing.

Issues

Issue	Mendez-Osorio's Argument	State/Prosecution Argument	Held
Whether ineffective assistance of trial counsel (failure to interview witnesses) can be resolved on direct appeal	Counsel failed to interview potential witnesses; record shows deficiency	Appellate record is insufficient to show who was not interviewed or how testimony would help; claim cannot be resolved on direct appeal	Court of Appeals and Supreme Court: record insufficient; claim properly rejected on direct appeal
Whether counsel was ineffective for not objecting to testimony about victim’s out‑of‑court statements	Failure to object to hearsay and leading questions prejudiced defense	Statements were admissible as excited utterances; witnesses testified live so confrontation possible	Held admissible as excited utterances; no ineffective assistance shown for lack of objections
Sufficiency of evidence for negligent child abuse under Neb. Rev. Stat. § 28-707(1)(a) (endangerment)	No direct threats to children, children did not witness crime, so no endangerment proved	Defendant threatened mother in presence/with knowledge children were in home; children witnessed aftermath and were left in a dangerous situation	Held sufficient evidence that defendant’s conduct placed children in situation endangering their physical or mental health; conviction affirmed
Sentencing errors: postrelease supervision and concurrent sentences for use-of-weapon conviction	Sentencing order lawful as entered	Sentencing conflicted with statutory framework (misclassification led to unauthorized postrelease supervision; §28-1205(3) mandates consecutive sentence for weapon use)	Court found plain error: postrelease supervision unauthorized and sentence for use of a weapon must be consecutive; vacated all sentences and remanded for resentencing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel)
State v. Loding, 296 Neb. 670 (Neb. 2017) (direct-appeal review of ineffective-assistance claims limited to record’s undisputed facts)
State v. Filholm, 287 Neb. 763 (Neb. 2014) (particularity required when raising ineffective-assistance claims on direct appeal to avoid procedural bar)
State v. Abdullah, 289 Neb. 123 (Neb. 2014) (procedural principles for appellate review of counsel-performance claims)
State v. Britt, 293 Neb. 381 (Neb. 2016) (excited-utterance hearsay exception explained)
State v. McCurry, 296 Neb. 40 (Neb. 2017) (postrelease supervision analysis and sentencing error precedent)
State v. Ramirez, 287 Neb. 356 (Neb. 2014) (plain error where use-of-weapon sentence ordered concurrent in contravention of statute)
State v. Crowdell, 234 Neb. 469 (Neb. 1990) (definition and scope of "endangers" under child-abuse statute)
State v. Gunther, 271 Neb. 874 (Neb. 2006) (appellate court authority to remand for lawful sentencing)
People v. Burton, 143 Cal. App. 4th 447 (Cal. Ct. App. 2006) (domestic violence exposure to children can support misdemeanor child endangerment)
People v. Johnson, 95 N.Y.2d 368 (N.Y. 2000) (child endangerment covers conduct endangering mental health even if not directed at child)