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01/19/2018 08:12 AM CST




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                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                                                 STATE v. BEDOLLA
                                                 Cite as 298 Neb. 736




                                        State of Nebraska, appellee, v.
                                           Luis Bedolla, appellant.
                                                    ___ N.W.2d ___

                                        Filed January 19, 2018.   No. S-16-1031.

                1.	 Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
                    tions of law.
                2.	 Evidence: Appeal and Error. On a question of law, an appellate court
                    reaches a conclusion independent of the court below.
                3.	 Motions for Mistrial: Pleadings: Prosecuting Attorneys: Intent:
                    Appeal and Error. While the denial of a plea in bar generally involves
                    a question of law, an appellate court reviews under a clearly erroneous
                    standard a finding concerning the presence or absence of prosecutorial
                    intent to provoke the defendant into moving for a mistrial.
                4.	 Pleadings: Final Orders: Double Jeopardy: Jurisdiction: Appeal and
                    Error. An order overruling a plea in bar is a final, appealable order that
                    an appellate court has jurisdiction to review. Such appellate jurisdiction
                    is based on the reasoning that under Neb. Rev. Stat. § 25-1902 (Reissue
                    2016), a plea in bar is a “special proceeding,” and an order overruling a
                    nonfrivolous double jeopardy claim affects a substantial right.
                5.	 Double Jeopardy: Pleadings. A plea in bar may be used to raise a
                    double jeopardy challenge to the State’s right to retry a defendant fol-
                    lowing a mistrial.
                6.	 Motions for Mistrial: Double Jeopardy. When a mistrial has been
                    declared upon the defendant’s motion, the Double Jeopardy Clause
                    generally does not bar retrial except when the conduct giving rise to the
                    successful motion for a mistrial was intended to provoke the defendant
                    into moving for a mistrial.
                7.	 Constitutional Law: Double Jeopardy. The Double Jeopardy Clause
                    of the Nebraska Constitution provides no greater protection than that of
                    the U.S. Constitution.

                 Appeal from the District Court for Hall County: Teresa K.
               Luther, Judge. Affirmed.
                              - 737 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. BEDOLLA
                        Cite as 298 Neb. 736

  Jim K. McGough, of McGough Law, P.C., L.L.O., for
appellant.
  Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
  Miller-Lerman, J.
                         NATURE OF CASE
   Luis Bedolla appeals the order of the district court for Hall
County which denied his plea in bar to charges of sexual
assault of a child. Although Bedolla had moved for a mistrial
in the first trial, he contends that a new trial would subject him
to double jeopardy because the State had created the need for
a mistrial when it moved to amend the information and a jury
instruction after the jury had begun deliberations. We conclude
that the district court did not err when it denied Bedolla’s plea
in bar.
                    STATEMENT OF FACTS
   On August 4, 2015, the State filed an information charging
Bedolla with seven counts of various degrees of sexual assault
of a child. The offenses involved three different victims and
were charged as having occurred on various dates ranging
from June 2002 through May 2015. One of the counts was
charged as first degree sexual assault of a child, in violation
of Neb. Rev. Stat. § 28-319.01 (Reissue 2016). With regard
to that charge, the information stated that the victim was a
person under 12 years of age identified as “C.Z-M.” and that
the offense occurred “[o]n or between February 17, 2009 and
February 17, 2011.”
   At Bedolla’s trial, C.Z-M., who was born in February 1999,
testified that “[o]ver the span of roughly 12 years, [she] was
abused by [Bedolla] in a sexual manner” and that the abuse
had been occurring “from as young as [she could] remember.”
She stated that in one of the first incidents she could remember,
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. BEDOLLA
                        Cite as 298 Neb. 736

Bedolla had “put his hand underneath [her] skirt and under-
neath [her] underwear and he stuck a finger inside of [her].”
When asked how old she was when this incident occurred, she
responded, “Maybe before elementary school, so very young.”
In a second incident that occurred when C.Z-M. “was older
. . . maybe in the fifth, sixth grade, so around 10, 11,” Bedolla
groped her breasts and he “went underneath [her] skirt, but not
underneath [her] underwear” and “poke[d] with his hand.” In
another incident, which occurred at C.Z-M.’s sister’s gradua-
tion party in May 2011, Bedolla “started grasping [her] breast
area and started touching [her].”
    C.Z-M. testified that the incidents she described were not
the only incidents and that she could not remember all the
occurrences, which she described as “a constant thing.” When
asked again regarding the first incident described above, she
stated that it occurred when she was “five or six.” She testi-
fied that she remembered “three incidents” that occurred when
she “was younger than 12” and that they were of “the same
nature” as the first incident described above. She testified that
one of these incidents occurred when she was “nine or ten” and
that Bedolla “slid his hand down [her] pants underneath [her]
underwear and he stuck a finger inside of [her].”
    On cross-examination, C.Z-M. admitted that in an interview
at a child advocacy center, she had stated that Bedolla’s abuse
of her had begun when she was “[f]our or five” and that it had
stopped when she was “seven or eight.” When asked whether
that was different from her testimony that he had abused her
consistently for 12 years, she acknowledged that it was but
she testified that the abuse “would stop and start and start and
stop” and that she “would call that consistent.” On redirect,
C.Z-M. testified that in the interview at the child advocacy
center, after she stated that the abuse had stopped when she
was 7 or 8, she disclosed to the interviewer “at least two more
incidents that happened after” that time.
    At the jury instruction conference, neither party objected to
the court’s proposed instruction regarding the crimes charged.
With respect to the charge of first degree sexual assault of a
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. BEDOLLA
                        Cite as 298 Neb. 736

child, the court instructed the jury that the State alleged that
Bedolla committed the assault “on or between February 17,
2009, and February 17, 2011.” This followed the language of
the charge in the information. In its closing argument, the State
said that with regard to the charge of first degree sexual assault
of a child, it needed to prove to the jury that
       between the dates of February 17, 2009, and February
       17, 2011, the defendant, . . . Bedolla, was an individual
       19 years of age or older, and that the victim, [C.Z-M.],
       was a person 12 years of age or younger, and that dur-
       ing that time frame [Bedolla] subjected [C.Z-M.] to sex-
       ual penetration.
In the closing argument for the defense, Bedolla’s counsel
argued that there was “no evidence of any penetration between
those dates, ’09 and 2011” and that, instead, C.Z-M. had testi-
fied regarding penetration that occurred when she was “four
or five.” He argued that given that C.Z-M. was born in 1999,
“these events happened in 2003 or 2004.” Bedolla’s counsel
further noted that C.Z-M. had testified that “it stopped when
she was seven or eight,” which was before 2009.
   After the closing arguments and the instructions noted
above, the jury began its deliberations. Approximately 1 hour
after it began its deliberations, the jury submitted the follow-
ing question to the court: “‘Is there a reason we’re looking at
a two-year period only for the sexual assault first degree on
a child?’” In response to the jury’s question, the court heard
arguments from the parties outside the presence of the jury
regarding how it should respond to the jury’s question. See
Neb. Rev. Stat. § 25-1116 (Reissue 2016). The State argued
that it should be allowed to amend both the information and
the jury instruction to conform to the evidence presented at
trial. The State therefore moved to amend both the informa-
tion and the jury instruction with regard to the timeframe
encompassed in the charge of first degree sexual assault of a
child “to change the date range that is charged . . . to February
17, 2003, to February 17, 2011.” In response, Bedolla argued
that there was no precedent for changing the jury instruction
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                         STATE v. BEDOLLA
                         Cite as 298 Neb. 736

with respect to a particular criminal charge after the case had
been submitted to the jury. Bedolla noted that the State had
not objected to the instruction that was given, and he argued
that “[i]f the shoe were on the other foot” and the defense had
asked to amend an instruction after the case had been submit-
ted, “everybody would be saying you waived any objection to
that by not objecting to the instruction.” He contended that it
was untimely to amend a jury instruction, “particularly when
the jury points out a problem with it.”
   The court thereafter sustained the State’s motions to amend
the information and to amend the jury instruction. The court
then called the jury into the courtroom and, over Bedolla’s
objection, responded to the jury’s question by stating: “Jury
instruction No. 2 (Elements) has been amended and the jury
will be reinstructed on it. The original jury instruction No.
2 should be disregarded.” The court then read an amended
instruction on first degree sexual assault of a child in which
the offense was charged as having occurred “on or between
February 17, 2003, and February 17, 2011.” The jury was
excused to resume deliberations.
   After the jury resumed deliberations, Bedolla moved the
court for a mistrial based on “the unusual procedure that’s been
employed here.” According to Bedolla’s comments, following
the court’s response to the jury’s question, the jury resumed
deliberations and soon reached a “quick verdict.” Bedolla’s
counsel asserted that the court’s decision to amend the instruc-
tion “tells the jury that part, if not all, of my closing arguments
should be disregarded without giving me an opportunity to
respond.” Bedolla argued in support of mistrial that “the appro-
priate remedy here is to retry the case,” and he stated that if
the court did not grant a mistrial, he would “follow up imme-
diately after verdict with a motion for new trial.” The court
sustained Bedolla’s motion and declared a mistrial.
   Bedolla thereafter filed a plea in bar in which he asserted
that “[b]ut for the actions of the State in asking to amend the
charge and the given instruction as to Count I, no mistrial
would have been granted,” and he argued that “continued
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. BEDOLLA
                        Cite as 298 Neb. 736

prosecution of this matter is a violation of the double jeopardy
clauses of both the United States and Nebraska Constitutions.”
   At a hearing on the plea in bar, Bedolla acknowledged prec-
edent to the effect that “where a mistrial has been granted at
the request of the defendant,” retrial generally does not violate
double jeopardy unless “the State did something to goad the
defendant into making that motion for mistrial.” Bedolla then
stated that he was “not making an argument that the State did
anything to goad [him] into requesting a mistrial” and that
instead, he was “asking for an expansion” to consider “this
very unique situation.” He argued that in this case, “[i]t was
the State’s actions that ultimately led to the grounds for the
mistrial” and that therefore, this case was “analogous” to a
case in which the State goaded the defendant to move for
a mistrial.
   In its response, the State emphasized that this case involved
a mistrial declared at the defendant’s urging and it argued that
Bedolla “cannot be first allowed to urge the Court to declare
a mistrial” and “then attempt to use the same issue to his
advantage later by claiming double jeopardy . . . in a subse-
quent trial.” The State asserted that it “did not seek to amend
the information in an attempt to goad [Bedolla] into seeking a
mistrial,” and it argued that because it did not goad Bedolla,
double jeopardy did not bar a subsequent prosecution. At the
conclusion of the hearing, the district court denied Bedolla’s
plea in bar.
   Bedolla appeals the denial of his plea in bar.
                 ASSIGNMENT OF ERROR
   Bedolla claims that the district court erred when it denied
his plea in bar.
                 STANDARDS OF REVIEW
  [1,2] Issues regarding the grant or denial of a plea in bar are
questions of law. State v. Lavalleur, ante p. 237, 903 N.W.2d
464 (2017). On a question of law, an appellate court reaches a
conclusion independent of the court below. Id.
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                       STATE v. BEDOLLA
                       Cite as 298 Neb. 736

   [3] While the denial of a plea in bar generally involves a
question of law, we review under a clearly erroneous standard
a finding concerning the presence or absence of prosecutorial
intent to provoke the defendant into moving for a mistrial.
State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015).
                          ANALYSIS
   Bedolla claims that the district court erred when it denied
his plea in bar because a new trial would violate double jeop-
ardy. He acknowledges our precedent to the effect that when
a defendant moves for a mistrial and a mistrial is declared,
double jeopardy does not prohibit a new trial unless the State
goaded, or provoked, the defendant into moving for a mis-
trial. Similar to his argument to the district court, on appeal,
Bedolla does not assert that the State goaded him into moving
for a mistrial but instead argues that the “exceptional circum-
stances” of this case require us to extend our precedent to
cover other cases wherein the State’s actions “prevent a . . .
verdict from being rendered.” Brief for appellant at 10. We
determine that the circumstances of this case do not convince
us to extend our jurisprudence, that Bedolla has not shown that
the State provoked him into moving for a mistrial, and that
double jeopardy does not prevent a new trial.
   [4] We note as an initial matter that we have held that an
order overruling a plea in bar is a final, appealable order that
we have jurisdiction to review. State v. Combs, 297 Neb. 422,
900 N.W.2d 473 (2017). Such appellate jurisdiction is based
on the reasoning that under Neb. Rev. Stat. § 25-1902 (Reissue
2016), a plea in bar is a “special proceeding,” and an order
overruling a nonfrivolous double jeopardy claim affects a sub-
stantial right. Id.
   [5] A plea in bar may be used to raise a double jeopardy
challenge to the State’s right to retry a defendant following a
mistrial. State v. Combs, supra. The Double Jeopardy Clause
of the Fifth Amendment to the U.S. Constitution provides, “No
person shall . . . be subject for the same offence to be twice
put in jeopardy of life or limb . . . .” The 5th Amendment’s
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. BEDOLLA
                        Cite as 298 Neb. 736

protection against double jeopardy applies to states through the
14th Amendment to the U.S. Constitution. Benton v. Maryland,
395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). This
provision prohibits a criminal defendant from being put in jeop-
ardy twice for the same offense and “unequivocally prohibits
a second trial following an acquittal.” Arizona v. Washington,
434 U.S. 497, 503, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). But
when the first trial ends in a mistrial, double jeopardy does not
automatically bar a retrial. See, Arizona v. Washington, supra;
State v. Combs, supra.
   [6] In cases where a mistrial has been declared at the pros-
ecution’s request over a defendant’s objection, the defendant
may be retried only if the prosecution can demonstrate a
“‘manifest necessity’” for the mistrial. Arizona v. Washington,
434 U.S. at 505. But when a mistrial has been declared upon
the defendant’s motion, the Double Jeopardy Clause gener-
ally does not bar retrial except in circumstances that the U.S.
Supreme Court in Oregon v. Kennedy, 456 U.S. 667, 673, 102
S. Ct. 2083, 72 L. Ed. 2d 416 (1982), described as a “narrow
exception to the rule that the Double Jeopardy Clause is no bar
to retrial.” That narrow exception, pursuant to which double
jeopardy bars a retrial, is “limited to those cases in which the
conduct giving rise to the successful motion for a mistrial was
intended to provoke the defendant into moving for a mistrial.”
Oregon v. Kennedy, 456 U.S. at 679.
   [7] In this case, Bedolla does not assert that the State pro-
voked or goaded him into moving for a mistrial. Instead, he
argues that because of the “exceptional circumstances” of this
case, we should expand the “narrow exception” of Oregon v.
Kennedy. In State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598
(2015), we rejected a similar invitation to broaden the “nar-
row exception” of Oregon v. Kennedy. We noted in State v.
Muhannad that in prior cases, we had consistently held that
the Double Jeopardy Clause of the Nebraska Constitution pro-
vided no greater protection than that of the U.S. Constitution,
and accordingly, we declined to extend the Oregon v. Kennedy
exception beyond situations where the prosecutor intended that
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. BEDOLLA
                        Cite as 298 Neb. 736

its conduct would provoke a mistrial. We noted that in Oregon
v. Kennedy, the U.S. Supreme Court had specifically rejected
a more generalized standard of bad faith conduct, harassment,
or overreaching as an exception to the defendant’s waiver of
his or her right to a determination by the first tribunal and had
stated that, consequently, “‘[p]rosecutorial conduct that might
be viewed as harassment or overreaching, even if sufficient to
justify a mistrial on [the] defendant’s motion, . . . does not bar
retrial absent intent on the part of the prosecutor to subvert the
protections afforded by the Double Jeopardy Clause.’” State
v. Muhannad, 290 Neb. at 65-66, 858 N.W.2d at 604 (quoting
Oregon v. Kennedy, supra).
   We are aware that after Oregon v. Kennedy, some state courts
“have adopted broader rules governing the consequences of
prosecutorial misconduct under the state [constitutional] provi-
sion providing double jeopardy protection.” People v. Griffith,
404 Ill. App. 3d 1072, 1083, 936 N.E.2d 1174, 1184, 344 Ill.
Dec. 417, 427 (2010) (citing cases decided by Supreme Courts
of Arizona, Hawaii, New Mexico, Oregon, and Pennsylvania,
but declining to expand Illinois’ rule beyond that set forth in
Oregon v. Kennedy). However, as noted above, we have con-
sistently held that the Double Jeopardy Clause of the Nebraska
Constitution provides no greater protection than that of the
U.S. Constitution, and we are not persuaded in this instance
to read our state Constitution as a source to expand the nar-
row exception under Oregon v. Kennedy beyond those circum-
stances where intent to provoke the defendant to move for a
mistrial has been shown.
   We read Oregon v. Kennedy as characterizing a defendant’s
decision to move for a mistrial as “the defendant’s waiver of
his or her right to a determination by the first tribunal.” State
v. Muhannad, 290 Neb. at 65, 858 N.W.2d at 604. We further
read the U.S. Supreme Court’s analysis in Oregon v. Kennedy
to the effect that double jeopardy generally does not bar retrial
when the defendant moved for a mistrial, as stemming from
the fact that the defendant made a knowing decision to pur-
sue mistrial rather than another remedy to correct a perceived
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. BEDOLLA
                        Cite as 298 Neb. 736

error in the first trial. In this case, when Bedolla moved for a
mistrial, he stated that if a mistrial was not granted, he would
move for a new trial after the jury’s verdict was entered.
Having chosen the remedy of a mistrial, Bedolla narrowed
the application of double jeopardy to those circumstances set
forth in Oregon v. Kennedy and this court’s precedent. We
find nothing regarding the circumstances of this case that
would justify straying from the narrow exception set forth in
our precedent.
   For completeness, we note that Bedolla claims that the dis-
trict court erred when it sustained the State’s motions to amend
the information and the jury instruction. However, because
Bedolla chose to address these alleged errors by requesting a
mistrial, the question whether the court erred in these rulings
is not presented to us. Instead, the question before us is the
propriety of the district court’s denial of Bedolla’s plea in bar
and, more specifically, whether double jeopardy prevents a new
trial following the declaration of a mistrial granted at Bedolla’s
request. Under the standards set forth in Oregon v. Kennedy,
456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), and
this court’s precedent, the relevant inquiry is whether the State
provoked Bedolla to move for a mistrial and not whether the
court’s rulings that motivated him to pursue a mistrial were
correct. We therefore make no comment on whether the district
court erred when it sustained the State’s motions to amend the
information and the jury instruction after the jury had begun
deliberations or when it gave the jury an amended instruction
in response to the jury’s question.
                         CONCLUSION
   We conclude that double jeopardy does not bar a new
trial following Bedolla’s successful motion for a mistrial. We
therefore affirm the order of the district court which denied
Bedolla’s plea in bar.
                                                   A ffirmed.
   Wright, J., not participating.
