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11/17/2017 09:13 AM CST




                                                        - 237 -
                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                                                STATE v. LAVALLEUR
                                                 Cite as 298 Neb. 237




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

                                        Filed November 17, 2017.   No. S-17-139.

                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.	 Evidence: Appeal and Error. The overruling of a motion in limine is
                    not a final ruling on the admissibility of evidence and does not present
                    a question for appellate review.
                4.	 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.
                5.	 Appeal and Error. Under the law-of-the-case doctrine, the holdings of
                    an appellate court on questions presented to it in reviewing proceedings
                    of the trial court become the law of the case; those holdings conclu-
                    sively settle, for purposes of that litigation, all matters ruled upon, either
                    expressly or by necessary implication.
                6.	 Actions: Appeal and Error. The law-of-the-case doctrine operates
                    to preclude a reconsideration of substantially similar, if not identical,
                    issues at successive stages of the same suit or prosecution. Matters pre-
                    viously addressed in an appellate court are not reconsidered unless the
                    petitioner presents materially and substantially different facts.

                  Appeal from the District Court for Lancaster County:
               A ndrew R. Jacobsen, Judge. Affirmed and remanded for fur-
               ther proceedings.
                                     - 238 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                             STATE v. LAVALLEUR
                              Cite as 298 Neb. 237

   Joseph D. Nigro, Lancaster County Public Defender, Webb
E. Bancroft, John C. Jorgensen, and Katherine Lesiak, Senior
Certified Law Student, for appellant.

  Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.

  Heavican, C.J., Miller-Lerman, Cassel, K elch, and
Funke, JJ.

      Cassel, J.
                        INTRODUCTION
   Curtis H. Lavalleur appeals from an order denying his sec-
ond plea in bar, asserting a double jeopardy violation. But
Lavalleur does not challenge the operative information; rather,
he seeks advance review of evidence that may be offered upon
retrial. Because there have been no final evidentiary rulings,
this issue lies outside of the scope of our jurisdiction over this
appeal. We affirm the district court’s denial of Lavalleur’s plea
in bar.

                        BACKGROUND
   This is the third time this case has been before this court
on appeal and the second time Lavalleur has entered a plea in
bar on double jeopardy grounds. Because a thorough factual
background is already chronicled in our 20141 and 20162 opin-
ions in this case, only those facts relevant to this appeal will
be repeated.
   The State originally charged Lavalleur with first degree
sexual assault (digital penetration) and attempted first degree
sexual assault (penile penetration). The attempted first degree
sexual assault charge alleged that Lavalleur “did attempt to
subject [the victim] to sexual penetration without her consent.”

 1	
      State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).
 2	
      State v. Lavalleur, 292 Neb. 424, 873 N.W.2d 155 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                              STATE v. LAVALLEUR
                               Cite as 298 Neb. 237

After a jury trial, Lavalleur was acquitted of first degree
sexual assault and convicted of attempted first degree sexual
assault. Lavalleur appealed this conviction, and we reversed
the judgment and remanded the cause for a new trial after
finding reversible error.3 The acquittal of first degree sexual
assault remained in full effect.
   On remand, the State sought and was granted leave to file
an amended information over Lavalleur’s objection. In its
amended information, the State again charged Lavalleur with
one count of attempted first degree sexual assault. However,
as well as alleging that Lavalleur attempted to subject the vic-
tim to penile penetration without her consent, the State alleged
in the alternative that the victim was mentally or physically
incapable of consenting. In response, Lavalleur entered his
first plea in bar on double jeopardy grounds. After the dis-
trict court denied it, Lavalleur timely appealed the matter to
this court.4
   In reviewing Lavalleur’s assignment of error on appeal,
we examined the record to find that the jury had already
addressed the victim’s capacity to consent. We reasoned that
where Lavalleur admitted to the alleged digital penetration at
issue in the first degree sexual assault charge, the jury must
have found that the victim consented to the digital penetration
to return a not guilty verdict on that charge. And, if the jury
found that the victim consented, it clearly had to find that the
victim was capable of consenting. Because we also determined
“on these facts it is not possible for [the victim] to be capable
of consenting to digital penetration but incapable of consenting
to penile penetration,” we concluded that capacity to consent
could not be relitigated as to the attempted first degree sexual
assault charge.5 Accordingly, we reversed, and remanded for
further proceedings.

 3	
      Lavalleur, supra note 1.
 4	
      Lavalleur, supra note 2.
 5	
      Id. at 432, 873 N.W.2d at 160.
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                        STATE v. LAVALLEUR
                         Cite as 298 Neb. 237

   On remand, the State filed a second amended information.
This time, the State alleged only that Lavalleur attempted to
subject the victim to penile penetration without her consent.
Lavalleur subsequently filed a motion in limine seeking to pro-
hibit testimony concerning “[a]ny claim or assertion of inca-
pacity, state of consciousness or intoxication,” on the grounds
that such matters were irrelevant and would subject him to the
risk of double jeopardy.
   A hearing was held on the motion at which the State
explained it intended to elicit testimony that the victim was
asleep before the incident, but awake when Lavalleur was
attempting to penetrate her with his penis. The State rea-
soned that the testimony would not be presented to support
a diminished capacity argument, but merely to provide con-
text for why the victim could not remember portions of the
evening. The court overruled the motion in limine to allow
the victim to testify that she fell asleep, with the following
admonishment:
      I’m not going to allow the State to say, well, were you
      too intoxicated and is that why you were asleep, was it
      the effects of marijuana or to argue . . . that . . . Lavalleur
      knew or should have known that she was mentally or
      physically incapable of resisting or appraising the nature
      of her conduct.
   Because Lavalleur maintained that such evidence concerned
capacity to consent, an issue of fact which the jury had previ-
ously decided in Lavalleur’s favor, he filed a second plea in bar
before trial. After the district court denied the plea, Lavalleur
brought this timely appeal.

                  ASSIGNMENTS OF ERROR
   Lavalleur assigns that the district court erred in denying
his plea in bar and permitting the introduction of evidence to
prove criminal allegations previously determined by the jury,
in violation of the Double Jeopardy Clauses of the federal and
state Constitutions.
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                             STATE v. LAVALLEUR
                              Cite as 298 Neb. 237

                   STANDARD OF REVIEW
    [1,2] Issues regarding the grant or denial of a plea in bar
are questions of law.6 On a question of law, an appellate court
reaches a conclusion independent of the court below.7

                            ANALYSIS
   Lavalleur frames the issue in this appeal as one of col-
lateral estoppel and attempts to challenge the district court’s
overruling of his motion in limine before trial. Specifically, he
asserts that “the District Court’s orders denying [his] Motion in
Limine and Plea in Bar are inconsistent with the United States
and the Nebraska State Constitutional protections against dou-
ble jeopardy.”8
   [3] But the overruling of a motion in limine is not a final
ruling on the admissibility of evidence and does not present a
question for appellate review.9 In other words, it is outside the
scope of our review of Lavalleur’s plea in bar. Accordingly,
we must limit our analysis to whether the State’s second
amended information places Lavalleur at risk of double jeop-
ardy. At oral argument, Lavalleur essentially conceded that it
does not.
   [4] 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.10 In
this case, the State’s second amended information is identi-
cal to the attempted first degree sexual assault charge for
which Lavalleur was originally convicted. We reversed that

 6	
      State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).
 7	
      Id.
 8	
      Brief for appellant at 20.
 9	
      State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291 (2008).
10	
      State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015).
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                             STATE v. LAVALLEUR
                              Cite as 298 Neb. 237

conviction in his first appeal after finding prejudicial eviden-
tiary errors, and remanded the cause for a new trial. In doing
so, we held that the federal and state Double Jeopardy Clauses
did not forbid a retrial on the attempted first degree sexual
assault charge.11
   [5,6] Under the law-of-the-case doctrine, the holdings of an
appellate court on questions presented to it in reviewing pro-
ceedings of the trial court become the law of the case; those
holdings conclusively settle, for purposes of that litigation,
all matters ruled upon, either expressly or by necessary impli-
cation.12 The law-of-the-case doctrine operates to preclude a
reconsideration of substantially similar, if not identical, issues
at successive stages of the same suit or prosecution.13 Matters
previously addressed in an appellate court are not reconsidered
unless the petitioner presents materially and substantially dif-
ferent facts.14
   Here, Lavalleur has presented no facts distinguishing the
second amended information from the attempted first degree
sexual assault charge in the original information. Because we
previously determined retrial on the attempted first degree sex-
ual assault charge of the original information did not implicate
double jeopardy, we necessarily conclude that double jeopardy
is not implicated with the second amended information.
   In our limited review of Lavalleur’s plea in bar at this stage
of the prosecution, the law of the case drives our decision that
the second amended information did not place Lavalleur at risk
of double jeopardy. As a result, the district court was correct in
denying his plea in bar.
   We unreservedly reject Lavalleur’s attempt, however artful,
to package future evidentiary rulings into a plea in bar. As we

11	
      Lavalleur, supra note 1.
12	
      State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
13	
      Id.
14	
      Id.
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           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                      STATE v. LAVALLEUR
                       Cite as 298 Neb. 237

have already explained, the evidence that may be offered at
trial remains to be determined. The parties have endeavored to
entice us into rendering an advisory opinion, but we decline
to do so.

                        CONCLUSION
   We affirm the order of the district court denying Lavalleur’s
plea in bar, and we remand the cause for further proceedings
consistent with this opinion.
	A ffirmed and remanded for
	                                further proceedings.
   Wright and Stacy, JJ., not participating.
