- 503 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

State of Nebraska, appellee, v. 

Randall R. Robbins, appellant.

___ N.W.2d ___

Filed August 18, 2017. No. S-16-155.

1. DNA Testing: Appeal and Error. A motion for DNA testing is addressed 

to the discretion of the trial court, and unless an abuse of discretion is 

shown, the trial court’s determination will not be disturbed.

2. Motions to Vacate: Motions for New Trial: DNA Testing: Appeal and 

Error. Under the DNA Testing Act, an appellate court will not reverse a 

trial court’s order determining a motion to vacate a judgment of conviction or grant a new trial absent an abuse of the trial court’s discretion.

3. DNA Testing: Appeal and Error. Under the DNA Testing Act, an 

appellate court will uphold a trial court’s findings of fact unless such 

findings are clearly erroneous.

4. Statutes: Appeal and Error. Statutory interpretation is a question of 

law that an appellate court resolves independently of the trial court.

5. Appeal and Error. Absent plain error, assignments of error not discussed in the briefs will not be addressed by an appellate court.

6. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

7. Statutes: Legislature: Intent: Appeal and Error. In construing a statute, an appellate court should consider the statute’s plain meaning in 

pari materia and from its language as a whole to determine the intent of 

the Legislature.

8. ____: ____: ____: ____. In construing a statute, an appellate court’s 

objective is to determine and give effect to the legislative intent of 

the enactment.

9. Appeal and Error. Plain error may be asserted for the first time on 

appeal or be noted by an appellate court on its own motion.

Nebraska Supreme Court Online Library

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

09/29/2017 12:11 AM CDT
- 504 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

10. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to the appellant before the order 

from which he or she is appealing.

Appeal from the District Court for Lancaster County: 

Steven D. Burns, Judge. Reversed and remanded with directions to dismiss.

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Heavican, C.J.

I. INTRODUCTION

In 2003, Randall R. Robbins was sentenced to a period of 

40 to 60 years’ incarceration for second degree murder for the 

strangulation death of his girlfriend, Brittany Eurek.

On September 4, 2012, Robbins filed a motion in the district court requesting (1) postconviction relief pursuant to Neb. 

Rev. Stat. § 29-3001 et seq. (Reissue 2016), (2) a new trial 

based on newly discovered evidence pursuant to Neb. Rev. 

Stat. § 29-2101(5) (Reissue 2016), and (3) a new trial based on 

DNA testing pursuant to § 29-2101(6). The district court denied 

Robbins’ request for postconviction relief as time barred and 

denied Robbins’ request for a new trial under § 29-2101(5), 

because it was filed more than 3 years after Robbins’ conviction. The district court granted Robbins’ request for DNA testing. Robbins received pharmacogenetic testing, via a buccal 

swab, which indicated that he was an “intermediate metabolizer” of prescription drugs.

Based on these results, Robbins asserted that while the 

dosage of the Zoloft medication he was taking at the time 
- 505 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

of the murder was the recommended amount for the average metabolizer, the dosage was too high for his body to 

properly metabolize. Robbins claims that this resulted in his 

experiencing a side effect, which caused him to be violent 

and homicidal.

Robbins therefore argued that he was entitled to relief 

under the DNA Testing Act (Act), Neb. Rev. Stat. § 29-4116 

et seq. (Reissue 2008), because new scientific evidence could 

contribute to and establish defenses at trial of an inability to 

formulate intent, intoxication, or insanity. Following an evidentiary hearing, the district court denied Robbins’ motion 

for new trial or new sentencing hearing based on the pharmacogenetic testing results. Robbins appeals. We hold that 

the district court committed plain error in granting Robbins’ 

motion for DNA testing. We reverse, and remand with directions to dismiss.

II. BACKGROUND

1. Factual Background

(a) Zoloft Prescription

On March 26, 2002, Dr. Richard Wurtz, a family practitioner, gave Robbins a standard trial dosage of Zoloft, 50 

mg per day (14 pills), for Robbins’ anxiety and told Robbins 

to follow up with him in 2 weeks. The trial dosage included 

product information. Wurtz testified that he did not give 

Robbins a prescription for Zoloft and that 50 mg is a standard 

starting dosage.

There is no evidence that Robbins followed up with Wurtz 

or that Robbins ever filled a Zoloft prescription written by 

Wurtz. However, Robbins testified that at the time of the homicide, he was routinely taking one 50-mg tablet of Zoloft each 

day. The record is not clear as to how Robbins received the 

Zoloft without a prescription. Robbins testified that he did not 

take Zoloft the day of the homicide because he did not take 

Zoloft when he drank alcohol, and he was planning to drink 

alcohol that day.
- 506 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

(b) Strangulation of Eurek

On June 1, 2002, Robbins, a 17-year-old just shy of his 18th 

birthday, was watching a movie at his residence with Eurek, 

with whom he had a 6-month old child. Shortly thereafter, 

they had sexual intercourse in Robbins’ bedroom. During intercourse, Eurek told Robbins that she wanted to have another 

child. Robbins said he did not want to have another child with 

her. Eurek became angry with Robbins and said that she did 

not want to have sex with him. They stopped having sex, and 

Eurek began accusing Robbins of cheating on her.

Robbins “grabbed her by her throat and told her to stop,” and 

Eurek punched Robbins in the face. Robbins came from behind 

Eurek, again grabbed her by the throat, and began to strangle 

her with his hands. Eurek then passed out on the floor. Robbins 

retrieved a belt from his dresser and put it around Eurek’s 

neck, “pulled it up,” and “just sat there.” About 5 minutes later, 

he “pulled [Eurek] over and tied her to the rail that goes downstairs.” Eurek “was like turning purple,” and Robbins stated 

he tied her to the stair rail “to make sure that she was dead.” 

Robbins later stated that the belt he used was the belt he had 

used a couple of weeks earlier to attempt suicide.

Robbins then drove Eurek’s vehicle to his mother’s residence and told his mother that he killed Eurek. Robbins’ 

mother arrived at Robbins’ residence, found Eurek’s body, and 

called the 911 emergency dispatch service.

Robbins admitted to the deputies at the scene that he killed 

Eurek. Following his arrest, Robbins recounted the events in 

a statement to an investigator. During Robbins’ confession 

to the investigator, he stated that the marks on his neck were 

scratches from when Eurek was “reaching back trying to make 

me stop.” Robbins also expressed concern that he did not take 

Zoloft that day. When asked by the investigator whether taking 

his Zoloft made him feel bad, he answered:

I don’t feel right I can tell you that much since I’ve 

been taking it today I don’t feel like I should. Usually 

I feel like I got . . . I don’t know I don’t know if it’s a 
- 507 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

problem or what I always have things on my mind causing things on my mind.

(c) Robbins’ Behavior on Zoloft

Following his arrest, Robbins continued to take Zoloft while 

at the juvenile detention center. There was evidence that while 

at the juvenile detention center, Robbins’ dose was doubled 

without any ill effects. Also while at the juvenile detention 

center, a psychiatrist hired by Robbins’ trial counsel evaluated 

Robbins and concluded that Robbins was competent to stand 

trial and was not insane at the time of the homicide.

In a deposition taken July 21, 2015, Robbins testified that 

when he started taking Zoloft, he felt like he had to be moving all the time, which “progressed into agitation.” Robbins 

also testified that his agitation and aggression increased about 

3 or 4 weeks after starting Zoloft. Robbins indicated that his 

mother called Wurtz about the changes in his behavior prior to 

the homicide. Wurtz testified that there was no record of a call 

from Robbins’ mother.

Trial counsel was deposed. In the deposition, counsel testified contrary to Robbins’ assertions regarding Zoloft’s causing 

agitation. Trial counsel indicated that Robbins described Zoloft 

as calming him down and wondered whether not taking Zoloft 

on the day of the homicide caused Robbins to be more agitated. In a July 2, 2002, transcribed statement to trial counsel, 

Robbins told him that Zoloft improved his mental state and that 

he “was never upset and never sad or down” but that when he 

did not take Zoloft, he was “more emotional” and would “get 

all upset.”

Robbins also alleges two suicidal episodes. One episode 

occurred a couple of years before Robbins was placed on 

Zoloft; the other occurred a couple of weeks prior to the 

homicide while Robbins was taking Zoloft. In addition to the 

alleged suicide attempts, there were two other episodes of 

physical aggression by Robbins, which the district court found 

occurred when he was not taking Zoloft.
- 508 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

(d) Robbins’ Pharmacogenetic 

Testing Results

Pharmacogenetic testing to determine the ability of a particular person to metabolize a medication was approved by 

the Food and Drug Administration for commercial use in 

December 2004. The test was administered to Robbins via a 

buccal swab, and the swab was sent to an accredited DNA 

parentage testing group. It is unclear from the record who 

administered the test. The district court used the terms “genetic 

testing,” “DNA testing,” and “pharmacogenetic testing” interchangeably in reference to the test given to Robbins pursuant 

to its order.

According to Dr. Daniel Hilleman, a pharmacist, there are 

four main categories of metabolizing Zoloft: extensive metabolizer, intermediate metabolizer, poor metabolizer, and “ultrarapid” metabolizer. According to the testing group’s document 

explaining the categories, for an individual who tests as an 

intermediate metabolizer, “[t]his means that you have only one 

of two operating pathways, and will need a lower than normal 

dosage and need to carefully monitor medication.”

Robbins’ pharmacogenetic test results showed that he was an 

intermediate metabolizer. The test results stated that this had a 

“[m]ajor” clinical impact and that a prescriber should “consider 

less than standard dosage to prevent adverse effects” in an 

intermediate metabolizer.

Hilleman testified that Zoloft was one of the drugs affected 

by the enzyme measured in the test. Hilleman explained that 

the reduced ability to metabolize in an intermediate metabolizer meant that “the amount of drug in the body would be 

increased because the amount of drug that’s being detoxified 

would be relatively less than someone that had full metabolic 

capacity.” Hilleman also stated that according to the FDAapproved labeling, the side effects of Zoloft in major depressive disorders that occurred with rates greater than 10 percent 

included “dry mouth, somnolence, dizziness, diarrhea, nausea, 

[and] insomnia.”
- 509 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

(e) Zoloft Black Box Warning

Hilleman testified that a “black box warning” is “an insert 

within the formal prescribing information that the Food and 

Drug Administration mandates be included when a significant 

risk with a particular drug exists” and that such warnings were 

not available to treating physicians, psychiatrists, or pharmacologists prior to 2004.

The black box warning for Zoloft states in relevant part: 

“Antidepressants increased the risk compared to placebo of 

suicidal thinking and behavior (suicidality) in children, adolescents, and young adults in short-term studies of major 

depressive disorder (MDD) and other psychiatric disorders. . 

. . Depression and certain other psychiatric disorders are themselves associated with increases in the risk of suicide.”

The black box warning states that suicidal thoughts and 

behavior were adverse reactions most common in children, 

adolescents, and young adults. Hilleman stated that he agreed 

with the black box warning, and he also connected Zoloft with 

violent behavior, because “there are some additional independent reports in the medical literature that have documented 

an association between the use of antidepressants and violent 

behavior.” Hilleman also testified that “most of the adverse 

reaction reports were suicide attempts” but that there were 

also reports of homicide attempts. Hilleman explained that 

the inability to metabolize Zoloft could result in such adverse 

reactions because

[t]he abnormality in the functioning of the CYP2C19 

enzyme could have led to higher amounts of drug in a 

patient, and then a greater effect in that patient in terms of 

adverse reactions of which one is suicidal ideation and/or 

behavior, and according to the report that I cited from [a 

research journal article] which associates reports of violence towards others, with antidepressants, could have led 

to an increase in violent tendency towards others.

Walter Duffy, a psychiatrist who evaluated Robbins due to 

truancy and alcohol and cannabis dependence in early 2002, 
- 510 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

was an expert for the State and testified by deposition that 

pharmacogenetic testing “is a tool. It is not a bull’s eye.” Duffy 

testified that in his practice, he more often evaluates the results 

and side effects experienced by the patient and adjusts the 

medicine or dosage accordingly, rather than resort to pharmacogenetic testing.

Robbins’ trial counsel testified that knowledge of the DNA 

results “might very well have affected what I did at sentencing or how I negotiated with the county attorney, what 

information I provided to the county attorney.” The district 

court found that “neither Dr. Hilleman nor Dr. Duffy made a 

causal connection between [Robbins’] being an intermediate 

metabolizer of Zoloft and suicidal or homicidal side effects.” 

In addition, the court found that neither doctor observed any 

side effects experienced by Robbins or made a causal link 

between consumption of Zoloft and the homicide committed 

by Robbins.

The district court further found that according to Hilleman, 

“[o]ne of the effects of higher amounts of the drug reaching 

the brain is a greater potential for adverse side effects such as 

suicidal ideation . . . .” However, the court found that “no studies were identified by the experts that differentiated between 

the four categories of metabolizers regarding whether one 

category is more likely to have suicidal ideation or homicidal 

thoughts compared to the others.”

2. Procedural Background

Robbins was initially charged with first degree murder. He 

subsequently entered a plea of guilty to a reduced charge of 

second degree murder. On April 24, 2003, Robbins was sentenced to a period of 40 to 60 years’ incarceration. Robbins 

appealed from his conviction and sentencing. The Nebraska 

Court of Appeals affirmed Robbins’ conviction and sentence.1

On May 20, 2011, Robbins, acting pro se, filed a motion to 

compel the Nebraska Department of Correctional Services to 

1 See State v. Robbins, 12 Neb. App. xxxix (No. A-03-500, Sept. 15, 2003).
- 511 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

allow him to take a DNA drug reaction profile test. On May 23, 

the district court overruled Robbins’ motion to compel because 

there was no pending postconviction proceeding.

On September 4, 2012, Robbins, still acting pro se, filed a 

motion in the district court requesting (1) postconviction relief 

pursuant to § 29-3001 et seq., (2) a new trial based on newly 

discovered evidence pursuant to § 29-2101(5), and (3) a new 

trial based on DNA testing pursuant to § 29-2101(6).

On September 24, 2012, the State filed a motion to dismiss Robbins’ motion for postconviction relief. On November 

21, following a hearing, the court filed an order (1) denying 

Robbins’ request for postconviction relief as time barred, (2) 

denying Robbins’ request for a new trial under § 29-2101(5), 

and (3) granting Robbins’ request for DNA testing under 

§ 29-4120(5).

The court found that Robbins’ allegation met the standard 

set forth in § 29-4120(5), that DNA testing may be relevant to 

the claim that a person was wrongfully convicted or sentenced. 

Pursuant to § 29-4122, the court appointed counsel to represent 

Robbins’ claim under the Act. On January 14, 2013, Robbins’ 

court-appointed attorney was allowed to withdraw and the 

Nebraska Commission on Public Advocacy was appointed. 

Robbins apparently separately appealed from the denial of 

postconviction relief, and the Court of Appeals affirmed the 

district court’s judgment, finding that Robbins’ motion was 

untimely filed.2

On January 28, 2016, following a hearing, the district 

court overruled and dismissed Robbins’ motion for DNA testing. The court held that (1) the DNA evidence did not show 

a complete lack of evidence to establish any element of the 

crime charged, thus Robbins was not entitled to a finding of 

complete exoneration; (2) the absence of DNA evidence did 

not affect a substantial right of Robbins, nor would it probably 

have produced a substantially different result, thus Robbins 

2 See State v. Robbins, 21 Neb. App. xxv (No. A-12-1158, Sept. 10, 2013), 

and State v. Robbins, 20 Neb. App. lxii (No. A-13-261, May 15, 2013).
- 512 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

was not entitled to a new trial based on this evidence; and 

(3) it was not unfair to Robbins that he was sentenced without 

the court’s knowing of his less-than-average metabolization of 

Zoloft, thus the DNA evidence was not exculpatory, nor did 

it have any relevance to a claim that Robbins was wrongfully 

sentenced or convicted.

Shortly after oral arguments, we directed the parties to 

submit supplemental briefs addressing (1) whether the DNA 

test utilized by Robbins met the requirements set forth in 

§ 29-4120(1)(b), (2) whether the Act allows testing of this 

type, and (3) whether the evidence regarding Robbins’ status 

as an intermediate metabolizer is “exculpatory evidence” under 

§§ 29-4119, 29-4120, and 29-4123.

III. ASSIGNMENTS OF ERROR

Robbins assigns, restated, that the district court erred in 

(1) denying a new sentencing and (2) overruling his motion 

new trial.

IV. STANDARD OF REVIEW

[1-3] A motion for DNA testing is addressed to the discretion of the trial court, and unless an abuse of discretion is 

shown, the trial court’s determination will not be disturbed.3

Under the Act, an appellate court will not reverse a trial court’s 

order determining a motion to vacate a judgment of conviction or grant a new trial absent an abuse of the trial court’s 

discretion.4 Under the Act, an appellate court will uphold a 

trial court’s findings of fact unless such findings are clearly 

erroneous.5

[4] Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court.6

3 State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007).

4 State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012).

5 Id.

6 State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).
- 513 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

[5,6] Absent plain error, assignments of error not discussed 

in the briefs will not be addressed by an appellate court.7

Plain error exists where there is an error, plainly evident from 

the record but not complained of at trial, which prejudicially 

affects a substantial right of a litigant and is of such a nature 

that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness 

of the judicial process.8

V. ANALYSIS

Before addressing Robbins’ argument that he was entitled 

to relief under the Act, we must determine whether the Act is 

applicable and allows the testing sought in this case. Finding 

that it does not, we must reverse, and remand with directions 

to dismiss.

In his supplemental brief, Robbins contended that the Act 

applies to testing of this type because (1) he was in custody at 

the time the sample for DNA testing was taken from his cheek 

and has remained in custody since that time, (2) his DNA profile is not subject to change, and (3) the Act does not expressly 

limit how evidence may be used and, in the alternative, if it 

may only be used for purposes of determining identity, “[a] 

person suffering from an involuntary and adverse reaction to 

medication is a different person.”9

1. Interpretation of Act

[7] We first turn to whether the DNA testing sought by 

Robbins is the type of DNA testing intended under the Act. 

In construing a statute, an appellate court should consider the 

statute’s plain meaning in pari materia and from its language 

as a whole to determine the intent of the Legislature.10

7 State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).

8 In re Estate of Morse, 248 Neb. 896, 540 N.W.2d 131 (1995).

9 Supplemental brief for appellant at 10.

10 State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
- 514 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

Section 29-4120(1)(b) provides guidance. Under 

§ 29-4120(1)(b), a person in custody may request DNA testing 

of biological material only if the biological material “[i]s in the 

actual or constructive possession or control of the state or is in 

the possession or control of others under circumstances likely 

to safeguard the integrity of the biological material’s original 

physical composition[.]”

Section 29-4120(5) provides further explanation as to the 

circumstances under which a court may order DNA testing. 

That section states that the defendant has the burden of providing the district court with affidavits or evidence at a hearing 

establishing the three required factual determinations for the 

district court.11 Subsection (5) also includes a requirement 

that “the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition.”

In State v. Pratt,

12 we explained the “integrity” language in 

§ 29-4120(1)(b) and (5), and we stated:

The integrity at issue under § 29-4120(5) is that of the 

“original physical composition” of “the biological material.” Since this is a DNA testing statute, the relevant 

“biological material[s]” are, fundamentally, the DNA. 

The question under the physical integrity prong thus 

is whether the evidence has been retained in a manner 

“likely” to avoid impairment of the original physical 

integrity of any DNA deposited during the crime or otherwise relevant to the crime.

We further explained:

No other state or federal DNA statute utilizes this 

“integrity” language. Most statutes do, however, require 

a finding that the evidence was subjected to a “chain 

of custody” sufficient to establish that it has not been 

“substituted, tampered with, replaced or altered in any 

11 See State v. Young, 287 Neb. 749, 844 N.W.2d 304 (2014).

12 State v. Pratt, 287 Neb. 455, 469, 842 N.W.2d 800, 810 (2014).
- 515 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

material aspect.” Some statutes and cases describe this 

absence of substituting, tampering, replacing, or altering, 

as the overall “integrity” of the evidence. We find that to 

be an apt characterization of the meaning of “integrity” in 

the context of DNA evidence.”13

In addition, § 29-4120(4) states that after a motion seeking forensic DNA testing has been filed, the State is required 

to file “an inventory of all evidence that was secured by the 

State or a political subdivision in connection with the case.” 

This further implies the nature of the material to be subjected 

to DNA testing under the Act must be something which can 

be “inventor[ied]” and “secured by the state or a political 

subdivision.”14

[8] To further explain the “integrity” requirement of the 

Act, we look to its legislative history. In construing a statute, 

an appellate court’s objective is to determine and give effect 

to the legislative intent of the enactment.15 According to the 

legislative history of the Act, the Legislature intended for a 

defendant to

be required to present a claim that establishes . . . that the 

identity of the defendant was a material issue at the trial 

and that resulted in his or her conviction; that the evidence to be tested must be in a chain of custody sufficient 

to establish that it has not been substituted, tampered 

with, replaced, or altered in any material aspect; and that 

the results of such testing would be material to the issue 

of identity.

16

Here, the DNA was acquired from a buccal swab of 

Robbins’ cheek 11 years after the crime to determine how he 

metabolized pharmaceutical medicines. Unlike the language 

13 Id. at 469-70, 842 N.W.2d at 810.

14 § 29-4120(4).

15 State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).

16 Judiciary Committee Hearing, L.B. 659, 97th Leg., 1st Sess. 57 (Feb. 23, 

2001) (remarks of Senator Kermit Brashear) (emphasis supplied).
- 516 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

suggested in Pratt and set forth in the legislative hearings, a 

defendant’s ability to metabolize pharmaceutical drugs does 

not have an “original physical composition” that can be in a 

“chain of custody” or “in the actual or constructive possession 

or control of the state . . . likely to safeguard [its] integrity.”17

A logical reading of the Act does not allow for a court to 

grant DNA testing in the form of a buccal swab to determine a 

defendant’s metabolism of pharmaceutical medicines.

2. Robbins’ DNA Evidence as

Exculpatory Evidence

Next, we turn to whether the evidence regarding Robbins’ 

status as an intermediate metabolizer of pharmaceutical drugs 

is “exculpatory evidence” under §§ 29-4119, 29-4120, and 

29-4123. We have held that “the only statutory inquiry upon a 

motion to vacate or for new trial under the Act is whether the 

DNA evidence ‘exonerate[s]’ or ‘exculpate[s]’ the inmate.”18

Robbins argues that a person’s genetic capacity to metabolize prescription drugs is exculpatory evidence under the Act, 

because it is favorable to Robbins and “material to the issue 

of guilt . . . or relevant to a claim that [Robbins] was wrongfully sentenced,” as he claims was established by Hilleman’s 

testimony.19

Section 29-4123 states that after the receipt of the results of 

the DNA testing, a party may request a hearing before the court 

“when such results exonerate or exculpate the person.” Section 

29-4119 defines exculpatory evidence as “evidence which is 

favorable to the person in custody and material to the issue of 

the guilt of the person in custody.”

In State v. Winslow,

20 this court reversed the district court’s 

denial of the defendant’s request for DNA testing and found 

that DNA testing of the samples of biological material found 

17 See § 29-4120(1)(b).

18 State v. Pratt, supra note 12, 287 Neb. at 472, 842 N.W.2d at 812.

19 Supplemental brief for appellant at 12.

20 State v. Winslow, supra note 3.
- 517 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

at the scene of the crime produced noncumulative, exculpatory evidence. In Winslow, the defendant was allegedly part 

of a group of individuals that broke into the victim’s house 

and raped and murdered her during the course of a failed burglary. This court found that DNA testing would “exclude . . . 

contributors to the semen sample” and “raise doubts regarding the veracity of the testimony” at the codefendant’s trial 

that “served as the factual basis for [the defendant’s] plea and 

would therefore be favorable” to the defendant.21 This court 

reasoned that

even if [the defendant] were placed at the scene of the 

crime, such evidence excluding [the defendant] as a contributor would also be relevant to a claim by [the defendant] that he was less culpable than the sentencing court 

had believed him to be and that therefore, he was wrongfully sentenced.22

The Act states that the Legislature finds that DNA testing 

is “the most reliable forensic technique for identifying persons

when biological material is found at a crime scene or transferred from the victim to the person responsible and transported from the crime scene.”23 Section 29-4117 states that it is 

“the intent of the Legislature that wrongfully convicted persons 

have an opportunity to establish their innocence.” Furthermore, 

in the legislative history of the Act, as stated above, the 

Legislature explained that its purpose in passing the Act was to 

allow defendants the opportunity to receive DNA testing that 

“would be material to the issue of identity.”24

Robbins concedes that “[t]he purpose of genetic testing 

in this case is not to establish that the results of such testing 

exonerates or exculpates [him].”25 Instead, Robbins argues 

21 Id. at 436, 740 N.W.2d at 801.

22 Id. at 437, 740 N.W.2d at 801.

23 § 29-4118(1) (emphasis supplied).

24 Judiciary Committee Hearing, supra note 16 at 57 (emphasis supplied).

25 Brief for appellant at 4-5.
- 518 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

that “[t]he issue is one of culpability viewed through the lense 

[sic] of sentencing mitigation and/or whether new scientific 

evidence would contribute to and establish defenses at trial 

of (a) an inability to formulate intent, (b) intoxication, or 

(c) insanity.”26

This case is distinguishable from Winslow. Unlike Winslow, 

the DNA testing that Robbins sought does not exclude him 

from being a contributor to DNA found during the investigation into the underlying homicide. Rather, Robbins admits that 

he killed Eurek and he does not contend that the DNA testing 

will exculpate or exonerate him as to his identity as the only 

contributor in her death. Because the evidence from the DNA 

testing cannot exclude Robbins as a contributor, the holding in 

Winslow does not control under the current facts.

We find no merit in Robbins’ argument that this case involves 

an issue of identity because he was a “different person” while 

on Zoloft.27 There is no issue of identity in this case, and as 

we established above, the DNA testing was not material to the 

issue of the guilt of the person in custody or that he was less 

culpable than the sentencing court had believed him to be and 

that therefore, he was wrongfully sentenced. Because the Act 

is intended to assist in proving the innocence of a convicted 

person through establishing the person’s identity, it cannot be 

said that evidence from the DNA testing probably would have 

produced a substantially different result at trial. As such, the 

evidence is not exculpatory under the Act.

As this is a question of statutory interpretation, we hold that 

the Act does not apply to DNA testing of the defendant’s person for the purpose of determining the defendant’s metabolism 

of prescription medication. Furthermore, new evidence concerning a defendant’s metabolism of prescription drugs, when 

such evidence has no bearing on identity, is not exculpatory 

under the Act.

26 Id. at 5.

27 Supplemental brief for appellant at 10.
- 519 -

Nebraska Supreme Court Advance Sheets

297 Nebraska Reports

STATE v. ROBBINS

Cite as 297 Neb. 503

[9,10] Absent plain error, assignments of error not discussed 

in the briefs will not be addressed by this court.28 Plain error 

exists where there is an error, plainly evident from the record 

but not complained of at trial, which prejudicially affects a 

substantial right of a litigant and is of such a nature that to 

leave it uncorrected would cause a miscarriage of justice or 

result in damage to the integrity, reputation, and fairness of 

the judicial process.29 Plain error may be asserted for the first 

time on appeal or be noted by an appellate court on its own 

motion.30 A substantial right is affected if an order affects the 

subject matter of the litigation, such as diminishing a claim 

or defense that was available to the appellant before the order 

from which he or she is appealing.31

We find that it was “plainly evident from the record” that 

the DNA testing Robbins sought in his motion for DNA testing was not within the purview of the Act. We further find 

that to apply the Act to a defendant’s metabolism of prescription drugs would extend the Act beyond its purpose set forth 

by the Legislature and, as such, “damage . . . the integrity, 

reputation, and fairness of the judicial process.”32 We hold that 

the district court committed plain error in granting Robbins’ 

motion for DNA testing.

VI. CONCLUSION

The district court committed plain error in granting Robbins’ 

motion for DNA testing. We reverse, and remand with directions to dismiss.

 Reversed and remanded with

directions to dismiss.

28 State v. Soukharith, supra note 7.

29 In re Estate of Morse, supra note 8.

30 Id.

31 Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010).

32 In re Estate of Morse, supra note 8, 248 Neb. at 897, 540 N.W.2d at 132.