State v. Lavalleur, 292 Neb. 424

Curtis H. Lavalleur was tried on two related counts: Count I—first degree sexual assault (digital penetration) alleged to have occurred when the victim was unable to consent or without her consent; Count II—attempted first degree sexual assault (penile penetration) alleged to be without consent.
At the first trial the jury returned a general verdict: acquittal on Count I and conviction on Count II; this court later reversed the conviction on Count II and remanded for a new trial (Lavalleur I).
On remand the State sought to amend Count II to add the alternative theory that the victim was mentally or physically incapable of resisting or appraising the nature of the conduct (the same incapacity theory alleged in Count I).
Lavalleur filed a plea in bar asserting double jeopardy/collateral estoppel because the jury’s prior acquittal on Count I necessarily resolved the ultimate factual issue of the victim’s ability to consent in his favor.
The district court denied the plea in bar; Lavalleur appealed. The Nebraska Supreme Court reversed, holding the jury’s prior verdict necessarily decided the ultimate factual issue of consent/incapacity and that issue could not be relitigated on an amended attempt charge.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lavalleur)	Held
Whether amending the attempted-first-degree-sexual-assault information to add incapacity as an element violates double jeopardy/collateral estoppel after a prior acquittal on first-degree sexual assault	The jury’s prior acquittal did not plainly decide incapacity; the verdict was general and could have rested on other grounds, so amendment is permissible	The prior general acquittal necessarily found the victim consented and was capable of consenting; adding incapacity would relitigate an issue already decided and violate collateral estoppel	Reversed: collateral estoppel bars the amendment because the trial record shows a rational jury necessarily found consent/capability as to penetration and cannot be relitigated

Ashe v. Swenson, 397 U.S. 436 (U.S. 1970) (establishes criminal-law collateral estoppel analysis for general verdicts)
State v. Muhannad, 290 Neb. 59 (Neb. 2015) (standard of review for plea in bar issues)
State v. Bruckner, 287 Neb. 280 (Neb. 2014) (discusses collateral estoppel in criminal context)
State v. Huff, 282 Neb. 78 (Neb. 2011) (double jeopardy and collateral estoppel principles)
State v. Lavalleur, 289 Neb. 102 (Neb. 2014) (prior opinion reversing conviction and addressing admissibility and jury instructions)