- Associated Press - Friday, January 8, 2016

LINCOLN, Neb. (AP) - A prosecutor’s effort to amend an attempted sexual assault charge against a Lincoln man was rejected Friday by the Nebraska Supreme Court, which ruled that a jury has already cleared the man of some of the allegations.

The court issued its ruling in the case of Curtis H. Lavalleur, who was convicted of first-degree attempted sexual assault but acquitted of first-degree sexual assault. His conviction on the attempted sexual assault charge was overturned in 2014, and the high court ordered a new trial.

Prosecutors filed an amended charge against Lavalleur last year, alleging that he attempted to have sexual contact with her when he knew or should have known she was incapable of resisting.

Lavalleur’s attorney argued that a jury in his client’s earlier trial had already rejected the argument that Lavalleur knew or should have known his accuser was incapable of resisting. A district court judge rejected the defense argument.

Friday’s ruling overturned that district court decision and sent the case back to district court for further proceedings. The Nebraska Supreme Court said prosecutors can still retry the case as long as they don’t run afoul of the ruling.

“This issue - whether (the accuser) consented or was capable of consenting - is one of ultimate fact, which the jury decided in Lavalleur’s favor,” Chief Justice Michael Heavican said in the opinion. “This issue cannot be litigated again between the same parties.”

Court records show Lavalleur and the woman he’s accused of assaulting were co-workers who socialized outside of work as friends.

In August 2012, the woman called Lavalleur to say she had been locked out of her apartment, both testified. The two went to his residence, where they drank alcohol before the woman went to sleep in a bed in Lavalleur’s basement, asking him to stay in the basement with her because she didn’t want to be alone.

She testified that upon awaking the next morning, she was naked from the waist down, as was Lavalleur, who was lying next to her. She said she remembered nothing after getting in the bed.

Lavalleur testified that the woman was awake and had not dissuaded him when he removed her shorts, and that she had not tried to stop him when he fondled her, but that she told him “no” more than once when he attempted to have sex with her. Lavalleur testified that he had not had sexual intercourse with her, and a sexual assault test kit found no evidence of intercourse.

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