State v. Lavalleur, 298 Neb. 237

Curtis H. Lavalleur was originally charged with first-degree sexual assault (digital penetration) and attempted first-degree sexual assault (penile penetration); he was acquitted of the first-degree charge and convicted of the attempted charge.
This Court reversed the conviction and remanded for a new trial based on prejudicial evidentiary error, leaving the acquittal intact.
On remand the State filed amended informations changing theories of proof (initially adding an incapacity-to-consent allegation, later filing a second amended information alleging only attempted penile penetration without consent).
Lavalleur moved in limine to exclude testimony about the victim’s alleged incapacity, sleep, or intoxication as irrelevant and barred by double jeopardy; the district court overruled the motion in limine but limited the State from arguing incapacity based on intoxication.
Lavalleur filed a second plea in bar asserting double jeopardy/collateral estoppel because the jury had previously determined capacity to consent; the district court denied the plea and he appealed.

Issue	Plaintiff's Argument (Lavalleur)	Defendant's Argument (State)	Held
Whether retrial on the attempted first-degree sexual assault charge (with evidence the victim fell asleep/was intoxicated) violates Double Jeopardy/collateral estoppel	The jury’s prior not-guilty verdict on first-degree sexual assault conclusively decided the victim was capable of consenting; permitting evidence of incapacity or related testimony would relitigate that issue and violate double jeopardy	The second amended information mirrors the retried charge previously approved for retrial; permitted testimony about sleep/memory is contextual, not an attempt to relitigate capacity to consent	Denied: The second amended information does not implicate double jeopardy; overruling the motion in limine is not a final evidentiary ruling and the court will not issue an advisory opinion on future admissibility rulings

State v. Lavalleur, 289 Neb. 102 (Neb. 2014) (reversed conviction and remanded based on evidentiary error)
State v. Lavalleur, 292 Neb. 424 (Neb. 2016) (clarified that capacity-to-consent issues were resolved by prior acquittal and addressed scope of retrial)
State v. Combs, 297 Neb. 422 (Neb. 2017) (standard of review for plea in bar as question of law)
State v. Schmidt, 276 Neb. 723 (Neb. 2008) (motion in limine rulings are not final for appellate review)
State v. Ballew, 291 Neb. 577 (Neb. 2015) (double jeopardy protects against successive prosecutions after acquittal, after conviction, and multiple punishments)
State v. Davlin, 272 Neb. 139 (Neb. 2006) (explaining the law-of-the-case doctrine)