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State of Nebraska, appellee, v.

Abel Mendez-Os

___ N.W.2d ___

Filed August 18, 2017. No. S-16-550.

1. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective 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 determine 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 elements 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 uncorrected, 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 ineffective performance which is known to the defendant or is apparent from 

the record.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/22/2017 01:10 AM CDT
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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 postconviction 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 deficient. In other words, counsel’s performance did not equal that of a lawyer 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 defendant’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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Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Inbody and Pirtle, Judges, on app

thereto from the District Court for Saline County, Vicky 

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,

Kelch, and Funke,

Miller-Lerman,

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. MendezOsorio 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. 
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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 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 MendezOsorio 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 MendezOsorio 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. SantosVelasquez 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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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 
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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. SantosVelasquez 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 
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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 MendezOsorio 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 SantosVelasquez 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 
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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 conviction 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 determined 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 necessary 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 convictions 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 evidence regarding his conviction for negligent child abuse. He 
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claims that the Court of Appeals erred when it rejected his ineffective 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 counsel 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 prejudiced 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, 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 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 unasserted 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, reputation, 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 ineffective assistance of counsel and affirmed his conviction for 
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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 commit a felony, is a Class II felony, see Neb. Rev. Stat. § 28-105(6) 

(Supp. 2015), and (2) in sentencing Mendez-Osorio to concurrent 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 

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.

[5,6] Mendez-Osorio is represented on direct appeal by different 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 necessarily mean that it can be resolved. Id. The determining factor is 

whether the record is sufficient to adequately review the question. 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 argument 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 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 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 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 deficient. 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 performance 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 spoken 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 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. 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 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. State v. Britt, 293 Neb. 381, 

881 N.W.2d 818 (2016).

We further note that both Officer Pucket and Amador testified live at trial; thus, Mendez-Osorio had the ability to crossexamine 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 MendezOsorio’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 Evide

Misdemeanor Neglig

Child Abus

A person commits child abuse if he or she knowingly, intentionally, 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, clothing, 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 situation 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 supported 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 further review.

(b) Endangerment

The Court of Appeals also determined that sufficient evidence of endangerment supported Mendez-Osorio’s conviction 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 MendezOsorio 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, intentionally, 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 construe 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 comparable 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 conviction 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 seventeen 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 produced by the defendant’s conduct. “Endangering the welfare 

of a child is not defined by specifically targeted acts or individuals, 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 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 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 presence 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 presence 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 violence 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 neurobiological 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 arguments 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 SantosVelasquez. 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 conviction 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 evidence 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 

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 MendezOsorio 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 MendezOsorio 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 sentenced 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 concurrent 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 commission of a felony be served consecutively to any other sentence 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 commit 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.

 Affirmed in part, and in part v

and remanded for resente