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                                           Nebraska A dvance Sheets
                                            292 Nebraska R eports
                                                STATE v. LAVALLEUR
                                                 Cite as 292 Neb. 424




                                        State of Nebraska, appellee, v.
                                        Curtis H. Lavalleur, appellant.
                                                    ___ N.W.2d ___

                                         Filed January 8, 2016.   No. S-15-481.

                1.	 Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
                     tions of law.
                2.	 Judgments: Appeal and Error. On a question of law, an appellate court
                     reaches a conclusion independent of the court below.
                3.	 Double Jeopardy. The Double Jeopardy Clauses of both the federal
                     and Nebraska Constitutions protect against three distinct abuses: (1) a
                     second prosecution for the same offense after acquittal, (2) a second
                     prosecution for the same offense after conviction, and (3) multiple pun-
                     ishments for the same offense.
                4.	 Collateral Estoppel: Words and Phrases. Collateral estoppel means
                     simply that when an issue of ultimate fact has once been determined by
                     a valid and final judgment, that issue cannot again be litigated between
                     the same parties in any future lawsuit.
                5.	 Criminal Law: Collateral Estoppel. Although first developed in
                     civil litigation, collateral estoppel is also an established rule of crimi-
                     nal law.
                 6.	 ____: ____. Where a previous judgment of acquittal was based upon a
                     general verdict, a court must examine the record of a prior proceeding,
                     taking into account the pleadings, evidence, charge, and other relevant
                     matter, and conclude whether a rational jury could have grounded its
                     verdict upon an issue other than that which the defendant seeks to fore-
                     close from consideration.

                  Appeal from the District Court for Lancaster County:
               A ndrew R. Jacobsen, Judge. Reversed and remanded for fur-
               ther proceedings.
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                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                             STATE v. LAVALLEUR
                              Cite as 292 Neb. 424

   Joseph D. Nigro, Lancaster County Public Defender, Webb
E. Bancroft, and Amy J. Peters, Senior Certified Law Student,
for appellant.
   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
  Heavican, C.J., Wright, Connolly, Miller-Lerman, and
Cassel, JJ.
      Heavican, C.J.
                      INTRODUCTION
   Curtis H. Lavalleur was previously acquitted of one count
of first degree sexual assault and convicted of one count of
attempted first degree sexual assault. This court reversed his
conviction and remanded the cause for a new trial. The State
then sought to file an amended information. Lavalleur’s plea
in bar on double jeopardy grounds was denied. He appeals.
We reverse.
                  FACTUAL BACKGROUND
   A more complete recitation of facts is found in our 2014
opinion in this case, State v. Lavalleur (Lavalleur I).1 Other
facts will be referenced as relevant to the issues presented by
this appeal.
   Lavalleur was originally charged with one count of first
degree sexual assault (digital penetration) and one count of
attempted first degree sexual assault (penile penetration).
Following a jury trial, he was acquitted of first degree
sexual assault and convicted of attempted first degree sexual
assault.2
   Lavalleur appealed. We reversed, concluding that evidence
that the victim was involved in an intimate relationship was not
inadmissible under Nebraska’s rape shield statute, Neb. Rev.

 1	
      State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).
 2	
      Id.
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                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                              STATE v. LAVALLEUR
                               Cite as 292 Neb. 424

Stat. § 27-412(1) (Cum. Supp. 2014), so long as the evidence
sought to be admitted did not touch upon the victim’s “‘sexual
behavior’” or “‘sexual predisposition.’”3 We concluded that
the evidence Lavalleur sought to admit was relevant and that
its exclusion was not harmless. We also held that the jury
was not properly instructed as to the charge of attempted first
degree sexual assault.
   We issued our opinion on September 19, 2014, and the cause
was remanded to the district court. On remand, discovery pro-
ceeded and the case was set for retrial during the April 6, 2015,
jury term.
   A hearing on the State’s motion to amend the information
was held on March 25, 2105. At that hearing, Lavalleur’s
counsel objected to the amendment of the information on
double jeopardy grounds. The State’s response was that “we
don’t know the reason why the jury found . . . Lavalleur not
guilty, whether it was consent or diminished capacity or a
combination or whatever.” At the conclusion of that hearing,
the district court sustained Lavalleur’s objection to the motion
to amend.
   But on April 8, 2015, several things happened, per the dis-
trict court’s journal entry:
      [Lavalleur] asks leave to withdraw plea, leave is granted.
      [Lavalleur] asks leave to file plea in bar. Leave is granted.
      Case set for jury trial 4-9-15 at 2:00. [Lavalleur] requests
      10 days to prepare for hearing on plea in bar. Request is
      granted. Hearing on plea in bar set for 4-20-15 at 2:30.
      [Lavalleur] is ordered to appear. State orally moves to
      amend count 2 of the information. State directed to file
      written motion. Motion for leave to file amended infor-
      mation set for 4-20-15 at 2:30. Trial continued.
   On April 15, 2015, a hearing was held on the State’s
motion to reconsider the court’s denial of the motion to
amend. At this hearing, Lavalleur again objected to the State’s

 3	
      Id. at 114, 853 N.W.2d at 214.
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                   Nebraska A dvance Sheets
                    292 Nebraska R eports
                       STATE v. LAVALLEUR
                        Cite as 292 Neb. 424

amendment of the information on double jeopardy grounds
and noted that leave to both withdraw Lavalleur’s not guilty
plea and file a plea in bar had been granted on April 8, appar-
ently based upon the assumption that the court had decided it
would grant the State’s motion to amend after all. And indeed,
the court did so. The court’s journal entry for April 15 noted
that the State’s
      [m]otion to reconsider motion to amend information is
      sustained. State given leave to file amended information.
      [Lavalleur] was arraigned and stood mute. Court entered
      plea of not guilty. After subsequent telephonic confer-
      ence with . . . counsel the plea entered by the court is
      vacated and withdrawn pending a preliminary hearing
      which is set for 4-20-15 at 2:30 . . . . [Lavalleur] given
      leave to file amended plea in bar which will be reset after
      the arraignment.
   At this hearing, the district court also gave an indication as
to how it would rule on the not-yet-heard plea in bar:
      I’m not sure on what basis [the jurors] found him guilty
      [sic]. Maybe they didn’t think that she was subjected to
      sexual penetration. Maybe they thought she didn’t con-
      sent. Maybe they thought she was mentally or physically
      incapable. But the jury verdict doesn’t set forth the spe-
      cific grounds for the reasons that they acquitted him on
      that charge.
   Count I of the original information charged Lavalleur with
first degree sexual assault. The information alleged that he
“subject[ed] M.J. to sexual penetration when he knew or
should have known that M.J. was mentally or physically
incapable of resisting or appraising the nature of his or her
conduct or without her consent.” But count II, attempted
first degree sexual assault in the original information, did
not allege that M.J was “mentally or physically incapable
of resisting or appraising the nature of his or her conduct.”
That charge alleged only that Lavalleur “did attempt to sub-
ject M.J. to sexual penetration without her consent.” Note
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                        Nebraska A dvance Sheets
                         292 Nebraska R eports
                             STATE v. LAVALLEUR
                              Cite as 292 Neb. 424

that these counts are not particularly specific with respect to
what penetration was alleged. However, the parties agree that
count I, first degree sexual assault, dealt with digital penetra-
tion, while count II, the attempt charge, dealt with penile
penetration. This court implicitly acknowledged this in its
opinion below.
    The amended information charged Lavalleur with attempted
first degree sexual assault. The allegation in the amended
information was that Lavalleur “did attempt to subject M.J.
to sexual penetration, to wit: penile/vaginal intercourse, when
he knew or should have known that M.J. was mentally or
physically incapable of resisting or appraising the nature
of his or her conduct or without M.J.’s consent.” (Emphasis
supplied.)
    Lavalleur’s plea in bar was heard on May 13, 2015. In that
filing, Lavalleur alleged that “he has before had a judgment of
acquittal of the same offense.” At the hearings on the State’s
motion to reconsider and Lavalleur’s plea in bar, Lavalleur
argued that “[a] jury has already found that the alleged victim
was not incapacitated to the extent that she could neither con-
sent or know whether consent was given or not.” The district
court denied the plea in bar on May 14.
    Lavalleur appeals.

                  ASSIGNMENT OF ERROR
   Lavalleur assigns that the district court erred in denying his
plea in bar.

                  STANDARD OF REVIEW
   [1,2] Issues regarding the grant or denial of a plea in bar
are questions of law.4 On a question of law, an appellate court
reaches a conclusion independent of the court below.5

 4	
      State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015).
 5	
      Id.
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                          Nebraska A dvance Sheets
                           292 Nebraska R eports
                              STATE v. LAVALLEUR
                               Cite as 292 Neb. 424

                           ANALYSIS
   [3] The Double Jeopardy Clauses of both the federal and
Nebraska Constitutions protect against three distinct abuses:
(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after convic-
tion, and (3) multiple punishments for the same offense.6
This case falls within the first category—a second prosecu-
tion after acquittal. But it is factually distinct from our usual
double jeopardy case law, because the State does not seek to
retry Lavalleur for first degree sexual assault. Instead, the
State seeks to amend the attempted first degree sexual assault
charge against Lavalleur to include an element of which
Lavalleur has arguably already been acquitted when he was
acquitted of first degree sexual assault.
   [4-6] This case, then, raises the basic principles of col-
lateral estoppel, which are embodied within the protections
of the Double Jeopardy Clause, and as discussed by the U.S.
Supreme Court in Asche v. Swenson7:
         “Collateral estoppel” is an awkward phrase, but it
      stands for an extremely important principle in our adver-
      sary system of justice. It means simply that when an issue
      of ultimate fact has once been determined by a valid
      and final judgment, that issue cannot again be litigated
      between the same parties in any future lawsuit. Although
      first developed in civil litigation, collateral estoppel has
      been an established rule of federal criminal law at least
      since [1916]. As Mr. Justice Holmes put the matter . . .
      “It cannot be that the safeguards of the person, so often
      and so rightly mentioned with solemn reverence, are less
      than those that protect from a liability in debt.” . . . As
      a rule of federal law, therefore, “[i]t is much too late to

 6	
      State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
 7	
      Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469
      (1970) (citation omitted). See, also, State v. Bruckner, 287 Neb. 280, 842
      N.W.2d 597 (2014).
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                          Nebraska A dvance Sheets
                           292 Nebraska R eports
                               STATE v. LAVALLEUR
                                Cite as 292 Neb. 424

      suggest that this principle is not fully applicable to a for-
      mer judgment in a criminal case, either because of lack
      of ‘mutuality’ or because the judgment may reflect only
      a belief that the Government had not met the higher bur-
      den of proof exacted in such cases for the Government’s
      evidence as a whole although not necessarily as to every
      link in the chain.”
The Court continued:
         The federal decisions have made clear that the rule of
      collateral estoppel in criminal cases is not to be applied
      with the hypertechnical and archaic approach of a 19th
      century pleading book, but with realism and rationality.
      Where a previous judgment of acquittal was based upon
      a general verdict, as is usually the case, this approach
      requires a court to “examine the record of a prior pro-
      ceeding, taking into account the pleadings, evidence,
      charge, and other relevant matter, and conclude whether
      a rational jury could have grounded its verdict upon an
      issue other than that which the defendant seeks to fore-
      close from consideration.” The inquiry “must be set in a
      practical frame and viewed with an eye to all the circum-
      stances of the proceedings.” . . . Any test more technically
      restrictive would, of course, simply amount to a rejection
      of the rule of collateral estoppel in criminal proceedings,
      at least in every case where the first judgment was based
      upon a general verdict of acquittal.8
   The specific issue in this case regards the State’s amended
information. The State originally charged Lavalleur with
two different counts: (1) first degree sexual assault, where
Lavalleur “knew or should have known that M.J. was men-
tally or physically incapable of resisting or appraising the
nature of his or her conduct or without M.J.’s consent,” and
(2) attempted first degree sexual assault, where Lavalleur

 8	
      Id., 397 U.S. at 444 (citation omitted).
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                   Nebraska A dvance Sheets
                    292 Nebraska R eports
                       STATE v. LAVALLEUR
                        Cite as 292 Neb. 424

allegedly “did attempt to subject M.J. to sexual penetration
without her consent.”
   In order to convict Lavalleur of first degree sexual assault,
the jury had to find that Lavalleur subjected the victim to
penetration, and that when he did so, he knew or should have
known that she “was mentally or physically incapable of resist-
ing or appraising the nature of his or her conduct,” or that she
did not consent. Thus, a jury had to find penetration and con-
sent, or inability to consent. Put another way, if a jury found
penetration and the lack of consent or the inability to consent,
it had to convict Lavalleur.
   The district court and the State both indicated that it was
unknown why the jury returned a verdict of acquittal on the
first degree sexual assault charge. The district court even noted
that it was possible that the jury found there was no penetra-
tion. But while the verdict of the jury was a general one, it is
possible to determine the basis of the jury’s acquittal.
   Ashe explains that because the prior judgment was based
upon a general verdict, a court may “‘examine the record of a
prior proceeding, taking into account the pleadings, evidence,
charge, and other relevant matter, and conclude whether a
rational jury could have grounded its verdict upon an issue
other than that which the defendant seeks to foreclose from
consideration.’”9
   So we examine that record. In this case, M.J. testified that
she did not remember anything that happened after she lay
down to go to sleep, and suggested that Lavalleur might have
drugged her. As such, M.J. had no testimony regarding digi-
tal penetration.
   But Lavalleur testified that he did digitally penetrate M.J.
The prosecutor noted in closing arguments that Lavalleur
admitted that he digitally penetrated M.J., that the State had
proved penetration, and as such, that “the only issue is did . . .
Lavalleur know or should he have known that [M.J.] was not

 9	
      Id.
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                   Nebraska A dvance Sheets
                    292 Nebraska R eports
                       STATE v. LAVALLEUR
                        Cite as 292 Neb. 424

in any condition to give consent to hi[s] digitally penetrating
her, or by her conduct, did she not consent to this.”
   By examining the trial record, we can safely conclude
that the jury found that Lavalleur penetrated M.J.; a ratio-
nal jury could not find otherwise where Lavalleur admitted
to the contact and the State argued that penetration was not
at issue. As such, the jury was left only with the issue of
whether M.J. consented or was unable to consent. Because a
jury would have been forced to convict if it concluded that
M.J. was unable to consent or did not consent, the jury must
have concluded that M.J. consented. Where penetration was
proved, only a conclusion that M.J. consented could support
Lavalleur’s acquittal.
   We must therefore conclude that the jury found that M.J.
was able to consent, and did in fact consent, to the penetration.
Because the jury found that M.J. did consent, the jury clearly
also had to find that M.J. was capable of consenting.
   The attempted first degree sexual assault charge in count
II was based on the same basic factual situation as the charge
in count I. Thus, any conclusion as to count I that M.J. was
capable of consenting would be equally applicable to count
II; on these facts it is not possible for M.J. to be capable of
consenting to digital penetration but incapable of consenting to
penile penetration.
   This issue—whether M.J. consented or was incapable of
consenting—is one of ultimate fact, which the jury decided in
Lavalleur’s favor. This issue cannot again be litigated between
the same parties. Although we may not have jurisdiction to
opine that the district court erred in allowing the amendment,
we clearly have jurisdiction to review the amendment’s effect
upon Lavalleur’s right to not be subject to double jeopardy.
And the operative information, after the amendment, violates
that right.
   The district court erred in denying Lavalleur’s plea in bar.
We reverse the district court’s denial and remand the cause for
further proceedings which may, at the State’s option, include
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                        Nebraska A dvance Sheets
                         292 Nebraska R eports
                            STATE v. LAVALLEUR
                             Cite as 292 Neb. 424

Lavalleur’s retrial on the attempted first degree sexual assault
charge, so long as that retrial is not inconsistent with either this
opinion or this court’s opinion in Lavalleur I.
   We observe, however, that in connection with our conclu-
sion that the jury instructions relating to the attempt charge
were incorrect in Lavalleur I, this court stated that the State
was required to prove that Lavalleur “intended to subject M.J.
to [sexual] penetration either without her consent or when
she was incapable of resisting or appraising the nature of
her conduct.”10 This was an incorrect statement, because, as
we have noted in our opinion today, the attempt charge in the
original information did not allege that M.J. was “incapable of
resisting or appraising the nature of her conduct.” As such, we
disapprove of that portion of Lavalleur I.
                      CONCLUSION
  The decision of the district court denying Lavalleur’s plea
in bar is reversed, and the cause is remanded for further
proceedings.
	R eversed and remanded for
	                               further proceedings.
  McCormack and Stacy, JJ., not participating.

10	
      State v. Lavalleur, supra note 1, 289 Neb. at 118, 853 N.W.2d at 216
      (emphasis supplied).
