Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
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. McCORMACK and STACY, JJ., not participating.
[292 Neb. 425] Heavican, C.J.
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.
A more complete recitation of facts is found in our 2014 opinion in this case, State v. Lavalleur ( Lavalleur I ). 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.
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. Stat. § 27-412(1) [292 Neb. 426] (Cum. Supp. 2014), so long as the evidence sought to be admitted did not touch upon the victim's " 'sexual behavior'"
or " 'sexual predisposition.'"  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 proceeded 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 district 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 ...