State v. Mendez-Osorio , 297 Neb. 520 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
10/27/2017 01:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. MENDEZ-OSORIO
Cite as 297 Neb. 520
State of Nebraska, appellee, v.
A bel Mendez-Osorio
___ N.W.2d ___
Filed August 18, 2017. No. S-16-550.
1. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
2. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
3. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
4. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
5. Effectiveness of Counsel: Appeal and Error. When a defendant’s
trial counsel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial counsel’s ineffec-
tive performance which is known to the defendant or is apparent from
the record.
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STATE v. MENDEZ-OSORIO
Cite as 297 Neb. 520
6. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
7. Postconviction: Effectiveness of Counsel: Records: Appeal and
Error. In the case of an argument presented for the purpose of avoiding
procedural bar to a future postconviction proceeding, appellate counsel
must present a claim with enough particularity for (1) an appellate court
to make a determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition for post-
conviction relief to be able to recognize whether the claim was brought
before the appellate court.
8. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on
a claim based on counsel’s ineffective assistance, the defendant must
show, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), that counsel’s performance was defi-
cient. In other words, counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law. Next, the defendant
must show that counsel’s deficient performance prejudiced the defense
in his or her case. To show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. A court may address
deficient performance and prejudice in either order.
9. Rules of Evidence: Hearsay. Excited utterances are an exception to the
hearsay rule, because the spontaneity of excited utterances reduces the
risk of inaccuracies inasmuch as the statements are not the result of a
declarant’s conscious effort to make them.
10. Criminal Law: Statutes: Minors: Words and Phrases. Under Neb.
Rev. Stat. § 28-707(1)(a) (Reissue 2016), “endangers” means to expose
a minor child’s life or health to danger or the peril of probable harm or
loss. Where a child is endangered, it may be injured; it is the likelihood
of injury against which § 28-707(1)(a) speaks.
11. Criminal Law: Statutes. Courts strictly construe criminal statutes.
12. Criminal Law: Minors. Criminal endangerment in Neb. Rev. Stat.
§ 28-707(1)(a) (Reissue 2016) encompasses not only conduct directed
at the child but also conduct which presents the likelihood of injury due
to the child’s having been placed in a situation caused by the defend­
ant’s conduct.
13. Sentences: Appeal and Error. An appellate court has the power on
direct appeal to remand a cause for the imposition of a lawful sentence
where an erroneous one has been pronounced.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. MENDEZ-OSORIO
Cite as 297 Neb. 520
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Inbody and Pirtle, Judges, on appeal
thereto from the District Court for Saline County, Vicky L.
Johnson, Judge. Judgment of Court of Appeals affirmed in part,
and in part vacated and remanded for resentencing.
Brett McArthur for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman,
and, on brief, George R. Love for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Abel Mendez-Osorio was convicted and sentenced in the
district court for Saline County for terroristic threats, use
of a weapon to commit a felony, and negligent child abuse.
Mendez-Osorio appealed to the Nebraska Court of Appeals
and claimed ineffective assistance of trial counsel in various
respects, including failing to adequately prepare for trial and
failing to assert various objections to trial evidence. Mendez-
Osorio claimed, in particular, that the evidence was insufficient
to support a finding that he was guilty of negligent child abuse.
The Court of Appeals rejected his claims and affirmed his con-
victions and sentences. We granted Mendez-Osorio’s petition
for further review. Upon further review, we affirm the deci-
sion of the Court of Appeals, which rejected Mendez-Osorio’s
claims of ineffective trial counsel and determined that the
evidence supported Mendez-Osorio’s convictions. However,
because we find plain error in sentencing, we vacate all sen-
tences and remand the cause for resentencing.
II. STATEMENT OF FACTS
On October 26, 2015, Mendez-Osorio was charged by infor-
mation with count I, terroristic threats under Neb. Rev. Stat.
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§ 28-311.01(1) (Reissue 2016); count II, use of a weapon to
commit a felony under Neb. Rev. Stat. § 28-1205(1) (Reissue
2016); and count III, misdemeanor negligent child abuse under
Neb. Rev. Stat. § 28-707(1) and (3) (Reissue 2016). For com-
pleteness, we note that both the caption of the information and
the body of count II refer to “use of a weapon to commit a
felony” and cite to § 28-1205(1), which is the use crime and
was a Class II felony at the time of the incident. Compare
§ 28-1205(2) (providing for “possession” of weapon during
commission of felony, Class III felony). Although there is
surplusage in the body of count II referring to the “posses-
sion” crime, the case was tried and charged as a “use” crime
and the verdict returned by the jury provided for “GUILTY of
using a machete or any other weapon . . . Use of a Weapon to
Commit a Felony.” Thus, the incidental reference to “posses-
sion” in the information is of no legal consequence.
The charges arose from a domestic incident on September
4, 2015, with Katia Santos-Velasquez, with whom Mendez-
Osorio lived in a two-bedroom mobile home. The couple never
married but had three children together who were between the
ages of 3 and 6. Mendez-Osorio’s case was tried to a jury.
Santos-Velasquez testified at trial that she and Mendez-
Osorio had argued earlier in the day and that they later argued
again about who would leave to buy a pizza for the children’s
supper. Mendez-Osorio left but did not return until around
11:20 p.m. At that time, the two youngest children were in the
larger bedroom, and the oldest child was asleep on the couch.
Santos-Velasquez heard Mendez-Osorio enter the home and
proceed to the smaller bedroom. Santos-Velasquez testified
that Mendez-Osorio was upset and that “every time that he got
upset, I would just stay quiet, keep quiet.”
Santos-Velasquez testified that from the bedroom door, she
observed Mendez-Osorio sharpening his machete. Santos-
Velasquez testified that Mendez-Osorio said to her, “this
machete, I want it for you” and that he came toward her
and told her he was going to kill her. She testified that she
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STATE v. MENDEZ-OSORIO
Cite as 297 Neb. 520
felt threatened and afraid. Without pausing to put on shoes,
Santos-Velasquez picked up her two youngest children from
the home’s larger bedroom and fled the home to seek help. Her
third child was asleep on a couch in the living room, and she
did not have time to bring him. Santos-Velasquez testified that
she was concerned for the safety and well-being of her chil-
dren, “[b]ecause if he was thinking of doing something to me,
he was going to do it to the children too.” She was especially
concerned for the child she left behind.
Santos-Velasquez testified that after fleeing the mobile
home, she ran barefoot to the home of a neighbor and friend,
Maria Amador, where she asked for help. Shortly thereafter,
Officer Jon Pucket with the Crete Police Department responded
and interviewed her at the Amador home. Santos-Velasquez
testified that Officer Pucket recommended she obtain a pro-
tection order, but she declined because she was afraid of
Mendez-Osorio.
Officer Pucket testified that he arrived at the mobile home
court within a couple of minutes of 11:20 p.m. There, he
observed Santos-Velasquez shoeless, crying, and physically
shaking. He testified that her voice was shaking and that she
looked “terrified.” She stated that she had run out the door of
her mobile home with two of her children. Officer Pucket testi-
fied that he saw the two children crying. Santos-Velasquez told
Officer Pucket that Mendez-Osorio had been sharpening the
machete and that he said he was going to kill her and nobody
would notice.
Officer Pucket then interviewed Mendez-Osorio, who had
remained in the mobile home. Mendez-Osorio stated that noth-
ing happened that night. Officer Pucket asked to see the
machete, and Mendez-Osorio led him to a closet where it was
sheathed. Mendez-Osorio stated that he had had the machete
for only 3 days and that a friend from Wilber, Nebraska,
brought him the machete to sharpen.
Amador testified that she and her children were sleeping
when she awoke to Santos-Velasquez’ knocking on the door
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STATE v. MENDEZ-OSORIO
Cite as 297 Neb. 520
very hard. Santos-Velasquez was crying and afraid and had
stated that her husband had a machete and wanted to kill her.
Amador testified that one of Santos-Velasquez’ children was
afraid, so she invited the children to enter her home, and they
did. Santos-Velasquez stated that her oldest child was still in
the mobile home with Mendez-Osorio and expressed a fear that
Mendez-Osorio would “do something to him.”
Zoraida Ramos, a city employee who translated between
Mendez-Osorio and Officer Pucket, also testified at trial.
Ramos observed Santos-Velasquez return to her home after
Mendez-Osorio had been taken away by the police. Santos-
Velasquez appeared to be nervous and shaking. She was bare-
foot, her hair was “a mess,” and her clothes were in disarray.
Santos-Velasquez told Ramos that she and Mendez-Osorio had
argued, that he came at her with a machete and put it to her
throat, but that she got away and fled the mobile home with
two of her children.
Ramos also testified that she observed Santos-Velasquez and
Mendez-Osorio’s mobile home and that it was “a mess,” with
minimal furniture in bad shape, and without a working kitchen
faucet. Ramos testified that Santos-Velasquez stated that in
order to wash dishes, she filled a container in the bathroom
with water and then boiled the water.
Arnaldo Leyva testified on behalf of Mendez-Osorio. He
testified that he was a coworker of Mendez-Osorio and that he
had asked Mendez-Osorio to loan his machete so that Leyva
could cut grass. Mendez-Osorio agreed. Leyva lived in Wilber
at the time and intended to pick up the machete on September
5, 2015.
The jury found Mendez-Osorio guilty on all counts. On
May 9, 2016, the district court sentenced Mendez-Osorio to
imprisonment with the Nebraska Department of Correctional
Services for 3 years for terroristic threats, for 4 years for use
of a weapon to commit a felony, and for 1 year for negligent
child abuse. The court stated that “[s]uch sentences shall run
concurrent to each other . . . .” The court further sentenced
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STATE v. MENDEZ-OSORIO
Cite as 297 Neb. 520
Mendez-Osorio to “eighteen (18) months of post-release super-
vision on Count 1 [terroristic threats] and twenty-four (24)
months of post-release supervision on Count 2 [use of a
weapon], concurrent to each other.”
Mendez-Osorio appealed his convictions and sentences to
the Court of Appeals. He claimed on appeal that there was not
sufficient evidence to support his conviction for negligent child
abuse. He also asserted several claims of ineffective assistance
of trial counsel, which he argued as two general claims: (1)
that counsel failed to adequately prepare for trial and (2) that
counsel failed to object to questions that were leading and that
called for hearsay.
In a memorandum opinion filed on January 26, 2017,
the Court of Appeals rejected Mendez-Osorio’s claims. With
regard to Mendez-Osorio’s claims of ineffective assistance
of counsel, the Court of Appeals rejected certain specific
claims and determined that the record on direct appeal was
not sufficient to consider his remaining claims. The Court
of Appeals first rejected Mendez-Osorio’s claim that counsel
was ineffective for failing to interview potential witnesses.
The Court of Appeals rejected this claim because Mendez-
Osorio failed to identify any specific witnesses or explain how
their testimony could have helped his defense. The Court of
Appeals also rejected Mendez-Osorio’s claim that counsel was
ineffective for failing to object to the State’s questioning of
Officer Pucket and Amador regarding statements that Santos-
Velasquez had made to each of them on the night of the inci-
dent. The Court of Appeals reasoned that even if counsel had
objected to these statements based on hearsay, the statements
would have been admissible as excited utterances, because
the evidence showed that the victim made the statements to
Officer Pucket and Amador shortly after the incident and that
she was still distraught at the time she made the statements.
Finally, the Court of Appeals determined that the record on
direct appeal was not sufficient to consider Mendez-Osorio’s
remaining claims of ineffective assistance of counsel. The
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STATE v. MENDEZ-OSORIO
Cite as 297 Neb. 520
Court of Appeals generally reasoned that the claims required
“an evaluation of counsel’s trial strategy, for which the record
is insufficient.”
With regard to sufficiency of the evidence for the convic-
tion for misdemeanor negligent child abuse, Mendez-Osorio
argued that there was no evidence that he directly threatened
or harmed the children and no evidence regarding any effect
his actions against Santos-Velasquez had on the children.
The Court of Appeals noted that Mendez-Osorio was charged
with child abuse pursuant to § 28-707, which provides that
one commits child abuse if he or she negligently causes or
permits a minor child to be, inter alia, “[p]laced in a situation
that endangers his or her life or physical or mental health,”
§ 28-707(1)(a), or “[d]eprived of necessary food, clothing,
shelter, or care,” § 28-707(1)(c). The Court of Appeals noted
testimony that Officer Pucket observed the two children who
had been taken from the mobile home crying, and it deter-
mined that it could be inferred from such evidence that the
children were crying because their mother was fearful of their
father, which could have an effect on their mental health. The
Court of Appeals further noted evidence that the mobile home
was in poor condition and that there was nothing in the home
to feed the children, and it determined that this evidence could
support a finding that the children had been deprived of nec-
essary food, shelter, or care. The Court of Appeals concluded
that there was sufficient evidence to support a conviction for
negligent child abuse.
The Court of Appeals affirmed Mendez-Osorio’s convic-
tions and sentences. We granted Mendez-Osorio’s petition for
further review.
III. ASSIGNMENTS OF ERROR
On further review, Mendez-Osorio repeats, summarized and
restated, the arguments he made before the Court of Appeals
regarding effectiveness of trial counsel and sufficiency of evi-
dence regarding his conviction for negligent child abuse. He
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STATE v. MENDEZ-OSORIO
Cite as 297 Neb. 520
claims that the Court of Appeals erred when it rejected his inef-
fective assistance of counsel claim and affirmed his conviction
for negligent child abuse.
IV. STANDARDS OF REVIEW
[1,2] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.
State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017). In
reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective
assistance and whether the defendant was or was not preju-
diced by counsel’s alleged deficient performance. Id.
[3] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. McCurry, 296 Neb. 40, 891
N.W.2d 663 (2017).
[4] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputa-
tion, and fairness of the judicial process. State v. Ramirez, 287
Neb. 356, 842 N.W.2d 694 (2014).
V. ANALYSIS
As explained below, we affirm the decision of the Court
of Appeals which rejected Mendez-Osorio’s claims of inef-
fective assistance of counsel and affirmed his conviction for
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STATE v. MENDEZ-OSORIO
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negligent child abuse. In addition, we find plain error in two
respects: (1) in imposing a period of postrelease supervision
where one of the convictions, use of a deadly weapon to com-
mit a felony, is a Class II felony, see Neb. Rev. Stat. § 28-105(6)
(Supp. 2015), and (2) in sentencing Mendez-Osorio to concur-
rent sentences where a sentence for felony use of a weapon has
been imposed, see § 28-1205(3). Accordingly, we affirm the
decision of the Court of Appeals affirming Mendez-Osorio’s
convictions, and we vacate his sentences and remand the cause
for resentencing.
1. Ineffective Assistance of Counsel
With regard to Mendez-Osorio’s claims of ineffective assist­
ance of counsel, the Court of Appeals rejected certain specific
claims and determined that the record on direct appeal was not
sufficient to consider his remaining claims.
[5,6] Mendez-Osorio is represented on direct appeal by dif-
ferent counsel than the counsel who represented him at trial.
When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counsel’s ineffective performance
which is known to the defendant or is apparent from the
record. State v. Loding, supra. Otherwise, the issue will be
procedurally barred. Id. The fact that an ineffective assistance
of counsel claim is raised on direct appeal does not necessar-
ily mean that it can be resolved. Id. The determining factor is
whether the record is sufficient to adequately review the ques-
tion. Id.
[7] We clarified in State v. Filholm, 287 Neb. 763, 848
N.W.2d 571 (2014), that allegations of how the defendant was
prejudiced by trial counsel’s allegedly deficient conduct are
unnecessary to the specific determination of whether a claim
of ineffective assistance of counsel can be determined based
on the record on direct appeal. See, also, State v. Abdullah,
289 Neb. 123, 853 N.W.2d 858 (2014). In the case of an argu-
ment presented for the purpose of avoiding procedural bar to
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a future postconviction proceeding, appellate counsel must
present a claim with enough particularity for (1) an appel-
late court to make a determination of whether the claim can
be decided upon the trial record and (2) a district court later
reviewing a petition for postconviction relief to be able to
recognize whether the claim was brought before the appellate
court. Id.
[8] To prevail on a claim based on counsel’s ineffec-
tive assistance, the defendant must show, in accordance with
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), that counsel’s performance was defi-
cient. In other words, counsel’s performance did not equal that
of a lawyer with ordinary training and skill in criminal law.
See State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).
Next, the defendant must show that counsel’s deficient per-
formance prejudiced the defense in his or her case. Id. To
show prejudice, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different. Id. A court
may address deficient performance and prejudice in either
order. Id.
(a) Preparation for Trial
The Court of Appeals first rejected Mendez-Osorio’s claim
that counsel was ineffective for failing to interview potential
witnesses. The Court of Appeals noted that Mendez-Osorio
failed to identify any specific witnesses or make a claim as
to how their testimony could have helped his defense. Thus,
the Court of Appeals was effectively unable to determine
whether this claim could be decided upon the trial record. The
Court of Appeals rejected this claim, and we find no error in
its decision.
Our review of the record shows that trial counsel for
Mendez-Osorio called a witness about the machete, but the
witness’ testimony contradicted Mendez-Osorio’s statements to
Officer Pucket to the effect that he did not own the machete.
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Mendez-Osorio contends that trial counsel may not have spo-
ken with the witness or perhaps other witnesses. The record is
incomplete on the matter, and the Court of Appeals did not err
when it rejected this claim on direct appeal.
(b) Objections at Trial
[9] The Court of Appeals also rejected Mendez-Osorio’s
claim that counsel was ineffective for failing to object to the
State’s questioning of Officer Pucket and Amador regarding
statements Santos-Velasquez made to each of them on the
night of the incident. The Court of Appeals reasoned that even
if counsel had objected to these statements based on hearsay,
the statements would have been admissible as excited utter-
ances, because the evidence showed that the victim made the
statements to Officer Pucket and Amador shortly after the
incident and that she was still distraught at the time she made
the statements. See Neb. Rev. Stat. § 27-803(1) (Reissue 2016)
(providing that statement relating to startling event made while
declarant was under stress of excitement caused by event is not
excluded by hearsay rule). We have observed that excited utter-
ances are an exception to the hearsay rule, because the spon-
taneity of excited utterances reduces the risk of inaccuracies
inasmuch as the statements are not the result of a declarant’s
conscious effort to make them. State v. Britt, 293 Neb. 381,
881 N.W.2d 818 (2016).
We further note that both Officer Pucket and Amador testi-
fied live at trial; thus, Mendez-Osorio had the ability to cross-
examine them and avoid prejudice due to their testimony. The
Court of Appeals did not err when it rejected this claim.
(c) Other Claims
The Court of Appeals rejected the remainder of Mendez-
Osorio’s claims of ineffective counsel, not repeated here, and
generally concluded that the record on direct appeal was not
sufficient to consider the remaining claims. The Court of
Appeals stated that the claims required “an evaluation of
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counsel’s trial strategy, for which the record is insufficient.”
We have examined the record and Mendez-Osorio’s remaining
claims, and we determine that the Court of Appeals did not err
when it concluded that the remaining claims cannot be resolved
on direct appeal.
2. Sufficiency of the Evidence for
Misdemeanor Negligent
Child A buse
A person commits child abuse if he or she knowingly, inten-
tionally, or negligently causes or permits a minor child to be
placed in a situation that endangers his or her life or physical
or mental health, or to be deprived of necessary food, cloth-
ing, shelter, or care. § 28-707(1)(a) and (c). According to the
jury verdict, Mendez-Osorio was found guilty of “negligently
causing or permitting minor children to be placed in a situa-
tion that endangered their lives or physical or mental health on
or about the 4th day of September, 2015.” See § 28-707(1)(a).
We sometimes refer to this crime as “endangerment.” Section
28-707(3) provides that child abuse is a Class I misdemeanor
“if the offense is committed negligently and does not result in
serious bodily injury . . . or death.” Based on the jury’s verdict
that Mendez-Osorio’s conduct was negligent in nature and
given the terms of § 28-707(3), Mendez-Osorio was convicted
and sentenced for misdemeanor negligent child abuse.
(a) Deprivation of Necessary Food,
Clothing, Shelter, or Care
The Court of Appeals concluded that sufficient evidence
existed to show that the condition of the mobile home sup-
ported a finding of child abuse, because the children were
placed in a situation that was not meeting their basic needs
of necessary food, shelter, and care under § 28-707(1)(c).
However, as noted above, the jury made no such finding in
this case. Because the jury reached a verdict based only and
specifically on § 28-707(1)(a), pertaining to a situation that
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endangers the life or physical or mental health of the children,
the Court of Appeals erred when it considered whether there
was sufficient evidence under § 28-707(1)(c). It was improper
for the Court of Appeals to find support for the verdict on the
basis of a theory not submitted to the jury. But, as we explain
below, such error does not determine the outcome on fur-
ther review.
(b) Endangerment
The Court of Appeals also determined that sufficient evi-
dence of endangerment supported Mendez-Osorio’s convic-
tion for negligent child abuse under § 28-707(1)(a), and we
agree. The record shows Santos-Velasquez testified that after
Mendez-Osorio threatened her with the machete, she was
afraid for her safety and for the safety and well-being of
her children. Witnesses testified as to their observations of
Santos-Velasquez and the children. The record shows Mendez-
Osorio was aware that children were present in the mobile
home when he threatened Santos-Velasquez with the machete.
Officer Pucket testified that he observed the younger children
crying, and Amador also testified that after Santos-Velasquez
fled with the children to Amador’s home, at least one of the
children was afraid. The oldest child remained in the mobile
home alone with Mendez-Osorio after Santos-Velasquez fled
with his siblings. The Court of Appeals noted, inter alia, that
the mental health of the children could be affected by their
mother’s fear of their father.
[10,11] Section 28-707(1) provides, in relevant part, “A
person commits child abuse if he or she knowingly, intention-
ally, or negligently causes or permits a minor child to be:
(a) [p]laced in a situation that endangers his or her life or
physical or mental health.” We have previously considered
§ 28-707(1)(a) and stated that under that section, “‘endangers’
means to expose a minor child’s life or health to danger or the
peril of probable harm or loss.” State v. Crowdell, 234 Neb.
469, 474, 451 N.W.2d 695, 699 (1990). We have further stated
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that the purpose of criminalizing conduct under the statute is
that where “‘a child is endangered, it may be injured; it is
the likelihood of injury against which the statute speaks.’”
Id. at 475, 451 N.W.2d at 699 (quoting State v. Fisher, 230
Kan. 192, 631 P.2d 239 (1981)). Although courts strictly con-
strue criminal statutes, see State v. Duncan, 294 Neb. 162,
882 N.W.2d 650 (2016), we have recognized the breadth of
conduct addressed in § 28-707(1)(a) and have stated that
“[a]s a matter of practicability for general application, child
abuse statutes, by virtue of the nature of their subject matter
and the nature of the conduct sought to be prohibited, usually
contain broad and rather comprehensive language.” State v.
Crowdell, 234 Neb. at 474, 451 N.W.2d at 699. As explained
below, we believe that given the law and evidence regarding
Mendez-Osorio’s conduct and the children’s exposure to the
incident and its aftermath, Mendez-Osorio’s conviction under
§ 28-707(1)(a) was supported by the evidence.
Nebraska’s child endangerment statute is similar to that of
other jurisdictions. Case law shows that other jurisdictions
have utilized misdemeanor child endangerment statutes com-
parable to Nebraska’s statute to penalize aggressors whose
conduct exposed children to domestic violence. For example,
in People v. Burton, 143 Cal. App. 4th 447, 49 Cal. Rptr. 3d
334 (2006), the California Court of Appeal affirmed a con-
viction for misdemeanor child endangerment. According to
Burton, supra, the defendant cut the child’s mother in the face
and although the child was not a direct witness of the attack
itself, the defendant knew of the child’s presence at the scene
of the attack, and the child saw the immediate aftermath.
Citing authorities including journal articles, the court reasoned
that the child’s presence and witness to the aftermath of the
defendant’s conduct likely caused mental suffering similar to
witnessing the attack itself. Id.
In People v. Johnson, 95 N.Y.2d 368, 740 N.E.2d 1075,
718 N.Y.S.2d 1 (2000), the New York Court of Appeals held
that child endangerment applied to conduct endangering the
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mental health of minors even where the violent actions were
not specifically targeted at the children. Johnson involved a
domestic assault. As the episode escalated, the children hid
in their bedroom while the defendant assaulted their mother
in the next room. Id. A New York criminal statute provides
that a person endangers the welfare of a child when “[h]e or
she knowingly acts in a manner likely to be injurious to the
physical, mental or moral welfare of a child less than seven-
teen years old . . . .” N.Y. Penal Law § 260.10(1) (McKinney
2017). The court in Johnson noted that under this statute, the
crime of endangerment is defined by the risk of injury pro-
duced by the defendant’s conduct. “Endangering the welfare
of a child is not defined by specifically targeted acts or indi-
viduals, but by conduct which a defendant knows will present
a ‘likelihood’ of harm to a child (i.e., with an awareness of
the potential for harm).” Id. at 372, 740 N.E.2d at 1076, 718
N.Y.S.2d at 2.
[12] Thus, we have long agreed with the reasoning expressed
in cases like Burton and Johnson to the effect that criminal
endangerment in § 28-707(1)(a) encompasses not only con-
duct directed at the child but also conduct which presents the
likelihood of injury due to the child’s having been placed in
a situation caused by the defendant’s conduct. See State v.
Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990). We believe
that by using the language “endangered” in § 28-707(1)(a), the
Legislature expressed its intent to encompass, as a crime, child
abuse resulting from certain conduct which exposes the child
to harm even if the child was not the object of the defendant’s
conduct. See State v. Graham, 137 N.M. 197, 109 P.3d 285
(2005). That is, § 28-707(1)(a) covers both direct and indirect
consequences of a defendant’s conduct which place a child in
a situation that endangers his life or physical or mental health.
See People v. Burton, supra.
Our reasoning and that of the foregoing cases are supported
by the academic literature. It is well established that children
often witness domestic violence or its aftermath and suffer
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adverse effects similar to victims of direct physical and sexual
abuse. See People v. Burton, 143 Cal. App. 4th 447, 49 Cal.
Rptr. 3d 334 (2006), citing to Gina L. Kershaw, Comment, The
Child Witness as a Victim of Domestic Violence: Prosecuting
the Batterer Under California’s Child Abuse Statute, 19 J. Juv.
L. 196 (1998). Nearly 20 years ago, it was noted that “[t]here
are up to six million victims of domestic violence annually in
the United States and half of these incidents occur in the pres-
ence of children.” People v. Burton, 143 Cal. App. 4th at 456,
49 Cal. Rptr. 3d at 341.
Academic journals have long observed that a child’s pres-
ence during domestic violence episodes has lasting health
consequences even where the child did not directly observe the
violence. In the article cited in People v. Burton, supra, it has
been stated:
Sleeping problems, and intense fears of going to bed at
night have been associated with the pattern of violence
in the home, since many times the abuse will occur after
the child has gone to bed. This correlation secondarily
indicates that children suffer the effects of domestic vio-
lence in the home, even when they are not actually in the
presence of the abuse but can hear it from another room.
Kershaw, supra at 198. More recently, the literature indicates
that exposure to domestic violence affects children’s neuro-
biological well-being. See Lynn Hecht Schafran, Domestic
Violence, Developing Brains, and the Lifespan, New Knowledge
From Neuroscience, 53 Judges’ J. 32 (Summer 2014).
Mendez-Osorio refers to the facts and makes several argu-
ments to the effect that his conduct was not a crime under
§ 28-707(1)(a). These facts include the assertions that he did
not threaten the children directly and that the children who
were in the home did not witness the terrorization of Santos-
Velasquez. Even assuming these facts are reflected in the
record, Mendez-Osorio’s arguments are unavailing.
Contrary to Mendez-Osorio’s contention, a conviction
under § 28-707(1)(a) does not require a direct threat by the
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defendant upon the children. In this case, Mendez-Osorio’s
conduct caused Santos-Velasquez to flee the mobile home
with the youngest children, who became upset and were made
fearful by this incident. Mendez-Osorio’s conduct, even if
characterized as indirect, caused the children to be placed in a
situation which endangered their well-being.
With respect to the contention that Mendez-Osorio’s con-
viction under § 28-707(1)(a) is not warranted because the
children did not witness the terrorization of Santos-Velasquez,
we believe Mendez-Osorio misapprehends the law and we
reject this argument. As we have discussed above, exposure
to domestic crime can support a conviction under § 28-707(1)
(a); the children need not witness the initial crime to become
victims of endangerment.
An article cited in People v. Johnson, 95 N.Y.2d 68, 740
N.E.2d 1075, 718 N.Y.S.2d 1 (2000), observed that in this area
of the law, “witnessing can be visual, auditory, or inferred from
the aftermath of the violence—e.g., broken furniture, bruises,
or parental apprehension when the abuser is present.” Audrey
E. Stone & Rebecca J. Fialk, Criminalizing the Exposure of
Children to Family Violence: Breaking the Cycle of Abuse,
20 Harv. Women’s L.J. 205, 207 (1997). In the instant case,
given Santos-Velasquez’ apprehension, two of the children
were swept up in her flight to the neighbor’s home to call law
enforcement late at night and were effectively witnesses to the
continuing aftermath and consequences of Mendez-Osorio’s
terrorization of Santos-Velasquez.
Based on the foregoing analysis of § 28-707(1)(a), and given
the factual record, we determine that there was sufficient evi-
dence upon which a rational jury could find Mendez-Osorio
guilty of misdemeanor child abuse under § 28-707(1)(a), and
we affirm his conviction thereunder.
3. Sentencing Errors
Although not asserted by either party in the appellate
briefs and not discussed by the Court of Appeals, we note
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plain error in two respects of the sentences imposed. As a
result, we vacate the sentences and remand the cause for
resentencing.
(a) Misclassification of Use of
a Weapon Conviction and
Postrelease Supervision
In count II of the information, the State charged Mendez-
Osorio with—and he was convicted of—a violation of
§ 28-1205(1), use of a deadly weapon to commit a felony
when, as in this case, the weapon is not a firearm. At the
time the crime occurred, § 28-1205 was a Class II felony. See
§ 28-1205(1)(b). The Legislature enacted 2015 Neb. Laws,
L.B. 605, which became effective on August 30, 2015, prior to
the events that led the State to bring charges against Mendez-
Osorio and prior to sentencing. The sentencing order, however,
erroneously describes the offense as a Class III felony. See
§ 28-1205(2)(b) (Cum. Supp. 2014). Evidently, because of
this misclassification, the sentencing court went on to order
postrelease supervision. This was not an authorized sentence
and constituted plain error. See State v. McCurry, 296 Neb. 40,
891 N.W.2d 663 (2017).
Mendez-Osorio was convicted of terroristic threats, a
Class IIIA felony, and use of a weapon, a Class II felony.
Section 28-105(6) provides:
Any person who is sentenced to imprisonment for a
Class I, IA, IB, IC, ID, II, or IIA felony and sen-
tenced concurrently or consecutively to imprisonment
for a Class III, IIIA, or IV felony shall not be subject
to post-release supervision pursuant to subsection (1) of
this section.
The sentence imposing postrelease supervision in this case
was not authorized and, in fact, contravened § 28-105(6).
Compare State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017)
(determining that sentence with no period of postrelease
supervision complied with § 28-105(6)). Accordingly, we
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must vacate the foregoing sentences for terroristic threats and
use of a weapon and remand the cause for resentencing.
(b) Concurrent Sentences
We note an additional sentencing error not raised by the
parties or the Court of Appeals. Although Mendez-Osorio was
convicted of use of a weapon in violation of § 28-1205(1),
the district court ordered all the sentences of imprisonment in
this case to be served “concurrent to each other.” The concur-
rent feature of the sentence for use of a weapon contravenes
§ 28-1205(3).
Section 28-1205(3) provides that “sentences imposed
under this section shall be consecutive to any other sentence
imposed.” We have found plain error where a court ordered
a sentence for use of a weapon to run concurrently to other
felony sentences imposed. See State v. Ramirez, 287 Neb. 356,
842 N.W.2d 694 (2014). See, also, State v. McCurry, supra.
Although it is generally within the trial court’s discretion to
direct that sentences imposed for separate crimes be served
concurrently or consecutively, § 28-1205(3) does not permit
such discretion in sentencing. Instead, § 28-1205(3) mandates
that a sentence for the use of a deadly weapon in the com-
mission of a felony be served consecutively to any other sen-
tence imposed and concurrent with no other sentence. State v.
Ramirez, supra.
Because § 28-1205(3) mandates that the sentence imposed
for a conviction of use of a deadly weapon be consecutive
to any other sentence and concurrent with no other sentence,
the district court did not have the authority to order that the
sentences for the conviction of use of a deadly weapon to com-
mit a felony run concurrently with the other sentences. State
v. Ramirez, supra. The imposition of the sentence wherein the
sentences were all “concurrent to each other” was plain error.
On this basis, the sentences for all convictions must be vacated
and the cause remanded for resentencing.
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(c) Vacation of Sentences
[13] An appellate court has the power on direct appeal to
remand a cause for the imposition of a lawful sentence where
an erroneous one has been pronounced. Id.; State v. Gunther,
271 Neb. 874, 716 N.W.2d 691 (2006). Accordingly, we vacate
all sentences and remand the cause for resentencing.
VI. CONCLUSION
In this direct appeal, the Court of Appeals did not err
when it rejected Mendez-Osorio’s claim of ineffectiveness
of trial counsel and affirmed Mendez-Osorio’s conviction for
misdemeanor negligent child abuse. We affirm in part the
decision of the Court of Appeals affirming Mendez-Osorio’s
convictions on all counts. However, because the district court
imposed unauthorized sentences, we vacate all sentences and
remand the cause for resentencing.
A ffirmed in part, and in part vacated
and remanded for resentencing.