State v. Lavalleur, 298 Neb. 237

Defendant Curtis H. Lavalleur was charged with first-degree sexual assault (digital penetration) and attempted first-degree sexual assault (penile penetration). A jury acquitted him of first-degree sexual assault and convicted him of attempted first-degree sexual assault.
On direct appeal the Nebraska Supreme Court reversed the conviction and remanded for a new trial based on prejudicial evidentiary error; the acquittal on the first-degree count remained intact.
On remand the State filed a second amended information charging attempted first-degree sexual assault (penile penetration only).
Lavalleur moved in limine to bar evidence about the victim’s incapacity, intoxication, or consciousness (arguing such evidence would relitigate capacity to consent and violate double jeopardy). The district court overruled the motion in limine but limited certain state argument.
Lavalleur filed a second plea in bar (double jeopardy) arguing the prosecution would seek to relitigate capacity to consent previously decided by the jury; the district court denied the plea and Lavalleur appealed.

Issue	Plaintiff's Argument (Lavalleur)	Defendant's Argument (State)	Held
Whether retrial or evidence at retrial would violate Double Jeopardy / collateral estoppel by relitigating victim's capacity to consent	Evidence about incapacity/intoxication would relitigate an issue the jury already decided (capacity to consent) and thus violate double jeopardy	Second amended information mirrors the overturned conviction and retrial is permitted; any evidentiary rulings are premature	Denied plea in bar; retrial and the information do not on their face violate double jeopardy; evidentiary disputes not ripe for appeal

State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014) (prior appeal reversing conviction and describing facts)
State v. Lavalleur, 292 Neb. 424, 873 N.W.2d 155 (2016) (held capacity-to-consent issue could not be relitigated and reversed/remanded)
State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017) (discusses standards for pleas in bar and related issues)
State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015) (explains protections of Double Jeopardy Clauses)
State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291 (2008) (motion in limine ruling is not a final evidentiary determination)
State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006) (law-of-the-case doctrine explained)