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Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

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 questions 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 following 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/23/2018 09:13 AM CST
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Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

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, Kelch, 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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298 Nebraska Reports

STATE v. BEDOLLA

Cite as 298 Neb. 736

Bedolla had “put his hand underneath [her] skirt and underneath [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 graduation 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 testified 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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298 Nebraska Reports

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 during that time frame [Bedolla] subjected [C.Z-M.] to sexual 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 testified 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 following 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 information 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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298 Nebraska Reports

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 submitted, “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 instruction “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 appropriate remedy here is to retry the case,” and he stated that if 

the court did not grant a mistrial, he would “follow up immediately 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 Advance Sheets

298 Nebraska Reports

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 precedent 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 subsequent 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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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 jeopardy. 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 mistrial. 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 circumstances” 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 substantial 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 Advance Sheets

298 Nebraska Reports

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 jeopardy 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 prosecution’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 generally 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 provoked 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 “narrow 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 provided 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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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] provision 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 consistently 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 narrow exception under Oregon v. Kennedy beyond those circumstances 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 pursue mistrial rather than another remedy to correct a perceived 
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298 Nebraska Reports

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 district 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.

Affirmed.

Wright, J., not participating.