State v. Mendez-Osorio

297 Neb. 520

900 N.W.2d 776

STATE of Nebraska, appellee,

v.Abel MENDEZ-OSORIO

No. S-16-550.

Supreme Court of Nebraska.

Filed August 18, 2017.

Brett McArthur, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, and, on brief, George R. Love, Lincoln, for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, 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 convictions and sentences. We granted Mendez-Osorio's petition for further review. Upon further review, we affirm the decision 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 sentences and remand the cause for resentencing.

II. STATEMENT OF FACTS

On October 26, 2015, Mendez-Osorio was charged by information with count I, terroristic threats under Neb. Rev. Stat. § 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 completeness, 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 "possession" 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 "possession" 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 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 children, "[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 protection 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 testified 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 nothing 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 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 barefoot, 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 Mendez-Osorio to "eighteen (18) months of post-release supervision 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 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 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 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...