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Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

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 questions 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 punishments 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 conclusively 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 previously 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: 

Andrew R. Jacobsen, Judge. Affirmed and remanded for further proceedings.

Nebraska Supreme Court Online Library

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

11/17/2017 09:13 AM CST
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Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

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, Kelch, and 

Funke, JJ.

Cassel, J.

INTRODUCTION

Curtis H. Lavalleur appeals from an order denying his second 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 opinions 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 Advance Sheets

298 Nebraska Reports

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 victim 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 district 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 Advance Sheets

298 Nebraska Reports

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 prohibit testimony concerning “[a]ny claim or assertion of incapacity, 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 reasoned that the testimony would not be presented to support 

a diminished capacity argument, but merely to provide context 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 previously 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 Advance Sheets

298 Nebraska Reports

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 collateral 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 double 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 jeopardy. 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 conviction, and (3) multiple punishments for the same offense.10 In 

this case, the State’s second amended information is identical 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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STATE v. LAVALLEUR

Cite as 298 Neb. 237

conviction in his first appeal after finding prejudicial evidentiary 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 proceedings 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 implication.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 different 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 sexual 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 Advance Sheets

298 Nebraska Reports

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.

 Affirmed and remanded for

further proceedings.

Wright and Stacy, JJ., not participating.