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Cite as 311 Neb. 304

State of Nebraska, appellee, v. 

Herman D. Buckman, appellant.

___ N.W.2d ___

Filed April 1, 2022. No. S-21-399.

1. Motions to Dismiss: DNA Testing: Appeal and Error. A motion to 

dismiss a proceeding under the DNA Testing Act after testing has been 

completed 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. DNA Testing: Appeal and Error. An appellate court will uphold a trial 

court’s findings of fact related to a motion for DNA testing unless such 

findings are clearly erroneous.

3. DNA Testing. Postconviction DNA evidence that does not falsify or 

discredit evidence that was necessary to prove an essential element of 

the crime does not exonerate the movant.

4. ____. When DNA test results are either inculpatory, inconclusive, or 

immaterial to the issue of the person’s guilt, the results will not entitle 

the person to relief under the DNA Testing Act.

5. ____. If DNA testing does not detect the presence of a prisoner’s DNA 

on an item of evidence, such result is at best inconclusive, especially 

when there is other credible evidence tying the defendant to the crime.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed.

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

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

for appellee.

Nebraska Supreme Court Online Library

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

05/20/2022 01:06 AM CDT
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Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Cassel, J.

I. INTRODUCTION

For a second time, Herman D. Buckman obtained testing on 

evidence under the DNA Testing Act. 1 After receiving results 

of the testing, the State moved to dismiss the proceeding. The 

court sustained the motion, and Buckman appeals. Because the 

test results did not exonerate or exculpate Buckman, we affirm 

the judgment of the district court.

II. BACKGROUND

1. General History

In 1988, law enforcement found Denise Stawkowski lying 

across the front seat of her car, dead from two gunshot wounds 

to her head. The State charged Buckman with first degree murder of Stawkowski and use of a weapon to commit that felony.

According to evidence at trial, Stawkowski sold drugs to a 

number of individuals, including Buckman and his girlfriend, 

Goldie Fisher. There was evidence that Buckman felt he had 

been cheated by Stawkowski on either the quantity or the quality of drugs he had been buying from her.

A few hours before Stawkowski’s murder, Buckman and 

Fisher tried to sell or trade a “.38 Special” gun to Stawkowski’s 

husband in return for drugs. The same caliber gun was used to 

kill Stawkowski. Evidence at trial established that Buckman 

often wore slippers in public. Investigators located two brown 

slippers near Stawkowski’s car. One slipper was discovered on 

the shoulder of the road south of the car’s location, and the 

other was found in a nearby field.

Stawkowski’s purse contained roughly $2,000 and three 

“eight-balls” of cocaine when she was with Fisher at approximately 1 a.m. on February 19, 1988. These items were not 

found with Stawkowski’s body. Later on February 19, Buckman 

1 Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).
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and Fisher spent large amounts of cash. A day earlier, they 

were trying to sell clothing in an effort to get money to pay 

Fisher’s babysitter. When Buckman was arrested, he had $656 

in cash in his possession and the clothing items he and Fisher 

had tried to sell were still in his car.

Hours before discovery of the murder, a witness picked up 

Fisher on a road near where Stawkowski’s body was found. 

Other evidence placed Fisher with Buckman in the hours 

before and after the murder. A cellmate of Buckman testified that Buckman bragged of killing Stawkowski in Fisher’s 

presence and using the money he stole from Stawkowski to 

pay debts.

As part of the original investigation of the murder, Dr. Reena 

Roy, a forensic serologist with the Nebraska State Patrol, 

tested bloodstains found on various items. Roy concluded that 

small amounts of blood on a jacket, a sweater, and jeans that 

Buckman was wearing at the time of arrest, on the brown slippers located in the area where Stawkowski’s car was found, 

and on the steering wheel cover and floormats of Buckman’s 

car contained blood group A and adenylate kinase enzyme 

(AK) of 2-1. That blood combination was consistent with 

Stawkowski’s genetic markers, but it excluded approximately 

96.5 percent of the Caucasian and 99.5 percent of the AfricanAmerican populations.

According to evidence at trial, Buckman smoked Kool cigarettes and opened his cigarette packages from the bottom. A 

Kool cigarette butt and a Camel cigarette butt were found on 

the rear floorboard in Stawkowski’s car. A package of Kool 

cigarettes, opened from the bottom, was located in a field near 

the car. Dr. Moses Schanfield tested the cigarette butts and 

concluded that Buckman could not be excluded as the person 

who smoked them. Schanfield stated that only 0.7 percent 

of the Caucasian population and 4.8 percent of the AfricanAmerican population could have been the donor of the saliva 

found on the Kool cigarette butt and that Buckman fell within 

that 4.8 percent.
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A jury convicted Buckman of first degree murder and use of 

a deadly weapon to commit a felony. 2 The trial court imposed 

sentences, including life in prison for the murder conviction.

On direct appeal, Buckman challenged the sufficiency of 

the evidence, in addition to several other issues. 3 We rejected 

all of the assigned errors and stated that a myriad of detailed 

evidence supported the convictions. 4

In 1998, Buckman moved for postconviction relief. The district court denied the motion without an evidentiary hearing. 5

We affirmed, finding no merit to Buckman’s claims of ineffective assistance of trial counsel.

Buckman subsequently sought testing of bloodstains and 

cigarette butts under the DNA Testing Act. The district court 

ordered testing, which the University of Nebraska Medical 

Center (UNMC) performed. UNMC tested Buckman’s jacket, 

sweater, and jeans, as well as cuttings from his jacket, for 

hemoglobin, but did not detect any blood. DNA testing on 

areas of Buckman’s jacket, sweater, and cap did not detect a 

DNA profile. UNMC tested cuttings from each slipper: one 

was negative for hemoglobin, and one was a weak positive for 

hemoglobin, but no DNA profile was found on the cuttings. 

UNMC attempted to extract DNA from the cigarette butts, and 

the results were inconclusive.

The district court denied Buckman’s motion to vacate and 

set aside his convictions after concluding that none of the 

evidence from UNMC’s testing exonerated Buckman, exculpated him, or proved Buckman’s innocence. The court denied 

Buckman’s motion for new trial after concluding that there 

was no reasonable possibility UNMC’s testing results, if 

2 See State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991).

3 See id.

4 See id.

5 See State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).
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presented at trial, would have produced a different result. 

We affirmed. 6

2. Instant Proceeding for DNA Testing

In 2016, Buckman filed a motion requesting DNA testing 

on Stawkowski’s panties. After the State filed an inventory, 

which included items that were unavailable at the time of 

Buckman’s previous proceeding for DNA testing, Buckman 

added a request that blood on the steering wheel cover and 

floormats of his car be tested. The court sustained Buckman’s 

request for DNA testing on those items and appointed counsel 

to represent him.

(a) Evidence Relating to Items Tested

The items tested—panties, steering wheel cover, and floormats—had been held in a semi-trailer truck. The trailer lacked 

temperature or humidity control. Mellissa Helligso, a forensic 

DNA analyst, performed DNA testing on the items. When 

asked if she found any evidence of heat damage with respect 

to the steering wheel cover or the floormats, Helligso answered 

that she was unable to tell the difference between degradation 

and low-level DNA. But extreme heat or cold did not affect her 

ability to test the panties. If there were concerns of heat, light, 

or moisture, the concerns would have exhibited themselves on 

the panties, and they did not.

As to the items, we set forth background information and 

evidence from trial and then evidence concerning Helligso’s 

testing.

(i) Steering Wheel Cover and Floormats

Prior to trial, the steering wheel cover and floormats were 

submitted to Roy for testing. She scraped the cover by using a 

scalpel to take blood off of four different areas and tested for 

blood group and AK. She also tested blood from both front 

floormats. The results were blood group A and AK 2-1.

6 See State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
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Helligso had concerns that the amount of DNA was so low 

that it was undetected with her quantification assay. She did 

not detect any blood on the steering wheel cover or the floormats. Helligso testified that the fact she did not detect any 

blood did not mean that there was not blood at the time of 

Roy’s initial testing.

(ii) Panties

During opening statements, counsel for both parties made 

reference to Stawkowski’s having engaged in sexual intercourse with someone other than her husband. The prosecutor stated:

You’ll also hear evidence during the autopsy Dr. [Daniel 

J.] Till found that there was semen in . . . Stawkowski’s 

vagina. The evidence will be that she and her husband 

had not had sexual intercourse that day. . . . There’s no 

indication that she had sexual intercourse with anyone 

else. There’s no indication that she had been sexually 

assaulted. When her body was found, her clothes were 

not in disarray. She was fully clothed. Again, there’s no 

indication that this has anything to do with this case, but 

you will hear that evidence.

Defense counsel stated that Stawkowski “had sex” with somebody other than her husband and that “[t]hat’s in dispute . . . 

and that’s important.”

Daniel J. Till, M.D., a pathologist, testified at trial that he 

performed a forensic autopsy on Stawkowski on February 19, 

1988. He testified that her body was clothed when found. Till 

opined that her death occurred sometime in the early morning hours of February 19, with a timeframe of 1 to 3:30 a.m., 

and that sperm found in Stawkowski’s vagina could have been 

there within 8 hours of her death.

Schanfield tested various items for immunoglobulin allotypes, ABO blood group substance, and Lewis blood group 

substance. Based on his results of the panties extract and 
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the vaginal swab extract, he was not able to draw any conclusions as to the allotypes and other genetic markers of the 

person responsible for the semen found in the panties and on 

the vaginal swab. He did not find anything that he would classify as a foreign marker; everything he found was consistent 

with Stawkowski.

Roy detected semen on the panties, jeans, and vaginal swab. 

She could not perform “DNA fingerprinting testing,” because 

there was not “enough high-molecular-weight DNA from the 

semen sample.” Roy performed testing in an effort to determine any blood group substances in the semen and found 

blood group substance A and H. Based on the results, Roy 

could not exclude Buckman as the semen donor. He fell within 

the 35 percent of the male population who could be the possible semen donor. Nor could Roy exclude Eric Beckwith, an 

individual arrested along with Buckman and Fisher. Through 

the testing, Roy was able to exclude Stawkowski’s husband 

and two acquaintances of Stawkowski as the semen donor. She 

estimated that the semen found on the vaginal swab could not 

have been there longer than 12 hours.

The State made no mention of semen in its initial closing 

argument. But the defense said that Till “also talks about an 

interesting point: that he found spermatozoa that was present 

in the findings from . . . Stawkowski, and he put a time frame 

on that of about eight hours prior to her death.” Then, in the 

State’s rebuttal, the prosecutor stated:

And there’s absolutely no evidence whatsoever linking 

. . . Beckwith to this crime, period. There is evidence that 

he may have been responsible for the semen, but so could 

35 percent of the black population and the white population. And so could [Buckman]. He’s also in that percentage of the population that could have been responsible 

for that semen. And somebody that’s cold enough to rob 

somebody and take a gun and shoot ’em twice in the head, 

are they cold enough to do something else, a last insult, a 

sexual assault? It’s certainly possible. I’m not suggesting 
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to you that that happened, but it certainly could have. We 

don’t know. But that’s not one of the mysteries of the case 

that we have to solve either.

In response to the motion for DNA testing, Helligso tested 

the panties and generated a profile of the sperm donor. Helligso 

did not have a concern about the level of quantity of the 

DNA present, and she was able to exclude Buckman as the 

major contributor of the DNA tested.

(b) State’s Motion to Dismiss

After receiving the test results, the State filed a motion to 

dismiss Buckman’s request for relief under the DNA Testing 

Act. The State asserted that the steering wheel cover and floormats did not satisfy the requirement of § 29-4120(l)(b) that the 

material was kept under circumstances likely to safeguard the 

integrity of the biological material’s original composition. The 

State highlighted that those items had been in storage for over 

30 years, 10 years of which they were kept in a semi-trailer 

truck parked outside with no climate control.

(c) District Court’s Decision

The court denied relief under the DNA Testing Act. With 

regard to the panties, the court stated that the prosecutor at 

trial admitted that the State did not know whether Buckman 

had sexual intercourse with Stawkowski and that it was not an 

essential element of the crimes charged. Although Buckman 

claimed that the lack of his semen on the panties would be 

exculpatory, Buckman was not charged with sexual assault. 

The court reasoned that the exclusion of Buckman as the 

semen donor did not contradict, falsify, or discredit any evidence presented at trial. The court stated: “The only thing the 

lack of [Buckman’s] semen proves is that the admission of 

expert testimony regarding the semen at trial was irrelevant. 

The admission of such irrelevant evidence has been found to 

be harmless error.” The court reasoned that it would be speculation to conclude that the absence of Buckman’s semen on 
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the panties would exclude him as the person who murdered 

Stawkowski and determined that “[a]t best, the lack of evidence is inconclusive and not exculpatory.”

As to the steering wheel cover and floormats, the court 

stated that the testing did not reveal any new or contradictory 

evidence. The court noted that DNA testing on those items 

generated only partial DNA profiles that were uninterpretable 

and could not be compared to any individuals because of the 

limited information in the partial profiles. The court determined that the absence of blood on these items was not exculpatory, that it did not significantly undermine Roy’s testimony 

at trial, and that it could be explained by the minimal amount 

of sample originally found on those items and by possible 

deterioration. The court also recognized Helligso’s testimony 

that just because she was unable to detect blood did not mean 

it was not present in 1988.

Ultimately, the court concluded that the results obtained 

did not produce exculpatory evidence or evidence that probably would have produced a substantially different result if it 

had been presented at Buckman’s trial. It sustained the State’s 

motion to dismiss and overruled Buckman’s request for relief 

through further testing or a new trial.

Buckman filed a timely appeal.

III. ASSIGNMENT OF ERROR

Buckman assigns that the district court erred by sustaining 

the State’s motion to dismiss and denying him relief under the 

DNA Testing Act.

IV. STANDARD OF REVIEW

[1] A motion to dismiss a proceeding under the DNA Testing 

Act after testing has been completed 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. 7

7 State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020).
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[2] An appellate court will uphold a trial court’s findings of 

fact related to a motion for DNA testing unless such findings 

are clearly erroneous. 8

V. ANALYSIS

Here, the district court ordered the DNA testing that 

Buckman requested, and the State does not argue in its brief 

that the court erred in doing so. We begin by recalling the process after such testing is ordered and results are received.

1. Procedure

In the appeal from Buckman’s first proceeding under the 

DNA Testing Act, we set forth the procedure applicable after 

a court orders DNA testing. 9 Subsequent amendments to the 

act have not altered the procedure. 10 After DNA testing results 

are obtained,

the question is whether the evidence obtained exonerates 

or exculpates the movant. Based on the test results, the 

movant may obtain relief in one of two ways, each of 

which requires a different quantum of proof. As previously noted, when the test results exonerate or exculpate the movant, the court may “vacate and set aside 

the judgment and release the person from custody.” 

§ 29-4123(2). However, if the court does not vacate and 

set aside the judgment, the movant may file a motion 

for new trial based upon “newly discovered exculpatory 

DNA or similar forensic testing obtained under the DNA 

Testing Act.” 11

We elaborated on when a court may vacate a conviction and 

release the person under § 29-4123(2) and when it may order a 

new trial under § 29-4123(3). 12 We explained:

8 Id.

9 State v. Buckman, supra note 6.

10 See, 2015 Neb. Laws, L.B. 245, § 3; 2007 Neb. Laws, L.B. 296, § 48.

11 State v. Buckman, supra note 6, 267 Neb. at 515, 675 N.W.2d at 381.

12 See State v. Buckman, supra note 6.
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[T]he court may vacate and set aside the judgment in 

circumstances where the DNA testing results are either 

completely exonerative or highly exculpatory—when 

the results, when considered with the evidence of the 

case which resulted in the underlying judgment, show a 

complete lack of evidence to establish an essential element of the crime charged. . . . This requires a finding 

that guilt cannot be sustained because the evidence is 

doubtful in character and completely lacking in probative 

value. . . . [I]n other circumstances where the evidence is 

merely exculpatory, the court may order a new trial if the 

newly discovered exculpatory DNA evidence is of such a 

nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially 

different result. 13

2. Whether Results Are Exonerative 

or Exculpatory

[3] With this understanding, we turn to consideration of 

whether the DNA testing results exonerated or exculpated 

Buckman. We recall that postconviction DNA evidence that 

does not falsify or discredit evidence that was necessary to 

prove an essential element of the crime does not exonerate the 

movant. 14 DNA testing results that are not incompatible with 

trial evidence of the movant’s guilt fail to exonerate the movant 

of guilt. 15 We are also mindful of the definition of exculpatory 

evidence contained in the DNA Testing Act: “[E]xculpatory 

evidence means evidence which is favorable to the person in 

custody and material to the issue of the guilt of the person 

in custody.” 16

13 Id. at 518, 675 N.W.2d at 383.

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

15 Id.

16 See § 29-4119.
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Buckman argues that the DNA testing results contradict the 

State’s theory at trial and create a reasonable doubt about guilt 

that would have produced a substantially different result at 

trial. Because the State presented evidence at trial that blood 

consistent with that of Stawkowski was on the steering wheel 

cover and floormats of Buckman’s car but subsequent DNA 

testing found no evidence of blood, he contends that the scientific evidence used by the State to place him at the scene of the 

crime has been discredited.

[4] The results of testing on the steering wheel cover and 

floormats is best regarded as inconclusive. When DNA test 

results are either inculpatory, inconclusive, or immaterial to the 

issue of the person’s guilt, the results will not entitle the person to relief under the DNA Testing Act. 17 Although Helligso 

was unable to detect any blood on the steering wheel cover or 

floormats, she testified that did not mean an expert who said 

there was blood present in 1988 was wrong.

Buckman also contends that the DNA testing yielded exculpatory evidence because it excluded him as the source of 

semen/sperm found on Stawkowski at the time of her death. 

We disagree that the result fits within the definition of exculpatory evidence. What is important is that evidence must be 

“material to the issue of the guilt of the person in custody” 

in order to be exculpatory. 18 Buckman was not charged with 

a sexual assault, and his exclusion as the source of the semen 

was not material to whether he was guilty of murder or using a 

weapon to commit a felony.

We also disagree with Buckman’s characterization of the 

evidence at trial regarding the semen. He called such evidence “exhaustive,” 19 “a great measure of evidence,” 20 and “a 

17 State v. Amaya, supra note 7.

18 See § 29-4119.

19 Brief for appellant at 41.

20 Id.
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spotlight [of] the prosecution.” 21 The bill of exceptions from 

the trial spanned over 1,600 pages; fewer than 40 of those 

pages referred to semen, sperm, or Stawkowski’s sexual activity. Forty-six witnesses testified; four of those witnesses provided testimony about semen and Stawkowski’s having sexual 

intercourse. Over 200 exhibits were offered; 5 exhibits related 

to either Stawkowski’s panties or swabs from her vagina 

and rectum.

The trial record shows that evidence concerning semen was 

a small part of the overall picture. To begin, the prosecution 

warned in its opening statement that there was “no indication 

that [Stawkowski] had been sexually assaulted” or that the 

semen discovery “has anything to do with this case.” Then, 

Stawkowski’s husband testified that he did not have knowledge 

of Stawkowski’s having sexual intercourse with anyone on 

the day in question. Next, Till, the pathologist, testified that 

Stawkowski’s body was fully clothed, that he found sperm in 

her vagina, and that the sperm could have been there within 8 

hours of her death. After that, Schanfield testified that following testing of the panties extract and vaginal swab extract—

which were among a number of items he tested—he was 

unable to draw any conclusions as to the genetic markers of the 

person responsible for the semen. Later, Roy offered her testimony about the numerous items of evidence she tested, which 

included testimony that Buckman was among the 35 percent 

of the male population who could be the possible semen donor 

and that the semen she found on the vaginal swab could not 

have been there longer than 12 hours. Moving to closing arguments, semen was first mentioned by the defense. Finally, in 

the State’s rebuttal argument, the prosecutor told the jury that 

whether the murderer also committed a sexual assault was “not 

one of the mysteries of the case that we have to solve.” The 

presence of semen from someone other than Stawkowski’s 

21 Id. at 42.
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husband seemed to be more of an unexplained happenstance 

than a focal point of the prosecution.

Buckman relies on State v. Parmar.

 22 There, a jury convicted 

LeRoy J. Parmar of first degree murder. Two eyewitnesses at 

trial testified that Parmar had physically assaulted the victim 

and that he was the only male present when the victim was 

robbed and killed. 23 Subsequent DNA testing on bloodstains 

found on the victim’s bedsheet excluded Parmar as a contributor. Two of the six samples contained mixed DNA from two 

male contributors—although the male victim was a contributor, 

Parmar was not. We agreed with the trial court that the DNA 

testing results did not exonerate Parmar; however, we determined that the court erred in denying Parmar a new trial. We 

noted that the testing results completely excluded Parmar as 

a contributor to the DNA samples found on the victim’s bedsheet, that the results established the presence of an unidentified male’s DNA, and that the results were contrary to the testimonies of two key eyewitnesses against Parmar. We concluded 

that the DNA testing results tended to create a reasonable doubt 

about Parmar’s guilt and that they were probative of a factual 

situation different from that testified to by the State’s two eyewitnesses against Parmar.

Parmar is distinguishable. There, the testimonies of the two 

eyewitnesses were the key evidence against Parmar and the 

DNA testing results were probative of a situation contrary to 

their version of the facts. In the instant case, there was no eyewitness to the murder. Nor was there evidence that Stawkowski 

had been sexually assaulted at the time of the murder. And as 

discussed next, a multitude of other circumstantial evidence 

tied Buckman to the murder.

[5] If DNA testing does not detect the presence of a prisoner’s DNA on an item of evidence, such result is at best 

inconclusive, especially when there is other credible evidence 

22 State v. Parmar, supra note 14.

23 See id.
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tying the defendant to the crime. 24 Evidence at trial established that Buckman was dissatisfied with either the quantity 

or the quality of drugs he was buying from Stawkowski and 

that he had threatened to steal drugs from Stawkowski. When 

Stawkowski’s body was found, her purse—which had contained cocaine—was missing. The day prior to the murder, 

Buckman was trying to sell clothing to get money needed 

to pay Fisher’s babysitter. After the murder, and after 

Stawkowski’s purse containing approximately $2,000 went 

missing, Buckman spent large amounts of money and still possessed over $600 at the time of his arrest. Hours before the 

murder, Buckman had a gun in his possession; the same caliber 

gun was used to shoot Stawkowski. A cellmate of Buckman 

testified that Buckman bragged of killing Stawkowski over 

drugs, taking “$4500 of drugs” from her, and using it to pay 

off debts.

Other evidence tied Buckman to the scene of the murder. 

Witnesses placed Buckman with Fisher in the hours before and 

after the murder, and Fisher was picked up on a road near the 

location of the murder at approximately 1:30 a.m. Buckman 

was known to wear slippers in public, and slippers were 

located near the murder scene. Buckman smoked Kool cigarettes and opened his cigarette packages from the bottom. A 

Kool cigarette butt was found in Stawkowski’s car and testing showed that Buckman fell within the 4.8 percent of the 

African-American population who could have smoked it. A 

package of Kool cigarettes, opened from the bottom, was 

located in a field near Stawkowski’s car. Stawkowski could not 

be excluded as the source of blood found on items of clothing 

that Buckman was wearing at the time of his arrest, on the slippers found near the murder scene, and on the steering wheel 

cover and floormats of Buckman’s car.

In sum, the evidence regarding blood on the steering 

wheel cover and floormats was inconclusive and the evidence 

24 State v. Amaya, supra note 7.
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excluding Buckman as the source of the semen was not material to the crimes charged. Given all of the other evidence 

linking Buckman to the crimes, the testing results were not of 

such a nature that they probably would have produced a substantially different result if offered at trial. We find no error in 

the district court’s findings of fact, and we conclude the court 

did not abuse its discretion in sustaining the State’s motion 

to dismiss.

VI. CONCLUSION

Because the district court’s factual findings were not clearly 

erroneous and it did not abuse its discretion in sustaining the 

State’s motion to dismiss, we affirm its judgment.

Affirmed.

Heavican, C.J., and Freudenberg, J., not participating.