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court’s conclusion that the Social Security benefits paid to 

the children were a gratuity and that Kari should not be given 

a credit upon remand, and we affirm this decision; and (3) 

although the Court of Appeals correctly affirmed the district 

court’s decisions that a downward modification in Kari’s child 

support could be retroactive to the month after the filing of 

the application to modify, that the judgment against Elizabeth 

for $25,472.11 should be reversed, that a judgment against 

Elizabeth for $2,357.90 should be entered, and we affirm 

these decisions, it erred when it reasoned that upon remand, 

Kari could not receive credit for overpayments, if any, made 

during the pendency of the modification proceedings for the 

reason that Kari had continued to pay the $3,000-per-month 

child support ordered in the decree. To the contrary, the fact 

that Kari continued to pay what had been ordered does not 

preclude consideration of a potential credit after receipt of 

additional evidence upon remand pursuant to the exception in 

Griess v. Griess, 9 Neb. App. 105, 608 N.W.2d 217 (2000). 

Accordingly, we affirm in part, and in part reverse and remand 

with directions.

 Affirmed in part, and in part reversed

and remanded with directions.

State of Nebraska, appellee, v. Craig Anthony Johnson,

also known as Craig A. Johnson, appellant.

___ N.W.2d ___

Filed May 15, 2015. No. S-14-101.

1. Appeal and Error. For an appellate court to consider an alleged error, a party 

must specifically assign and argue it.

2. Juries: Discrimination: Equal Protection: Prosecuting Attorneys. A prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any 

reason at all, if that reason is related to his view concerning the outcome of the 

case. But under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 

69 (1986), a peremptory challenge to remove a prospective juror for a racially 

discriminatory reason violates the Equal Protection Clause.

3. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining whether a 

prosecutor impermissibly sought to remove a prospective juror based on race is 
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a three-step process: First, a defendant must make a prima facie showing that the 

prosecutor exercised a peremptory challenge because of race. Second, assuming 

the defendant made such a showing, the prosecutor must offer a race-neutral 

basis for striking the juror. And third, the trial court must then determine whether 

the defendant has carried his or her burden of proving purposeful discrimination. The third step requires the trial court to evaluate the persuasiveness of the 

justification proffered by the prosecutor. But the ultimate burden of persuasion 

regarding racial motivation rests with, and never shifts from, the opponent of 

the strike.

4. Juries: Discrimination: Prosecuting Attorneys: Moot Question. Once a prosecutor has offered a race-neutral explanation for a peremptory challenge and the 

trial court has decided the ultimate question of intentional discrimination, the 

preliminary issue of whether the defendant made a prima facie showing that the 

challenge was racially motivated is moot.

5. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. An appellate court reviews de novo the facial validity of an attorney’s race-neutral explanation for using a peremptory challenge as a question of law. It reviews for clear 

error a trial court’s factual determinations whether an attorney’s race-neutral 

explanation is persuasive and whether his or her use of a peremptory challenge 

was purposefully discriminatory.

6. Juries: Discrimination: Prosecuting Attorneys. Under the second step of an 

inquiry under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986), a prosecutor must present a comprehensible reason for using a peremptory strike against a prospective juror in response to a Batson challenge. But in 

determining whether the explanation is race-neutral, a court is not required to 

reject the explanation because it is not persuasive, or even plausible; it is sufficient if the reason is not inherently discriminatory.

7. ____: ____: ____. Whether a prosecutor’s explanation for using a peremptory strike against a prospective juror is pretextual falls within the trial court’s 

ultimate factual determination in the third step of the inquiry under Batson v. 

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

8. DNA Testing: Words and Phrases. In forensic analysis, a DNA profile is a person’s combination of alleles at each tested locus.

9. Rules of Evidence: Appeal and Error. When the Nebraska Evidence Rules 

commit the evidentiary question at issue to the discretion of the trial court, an 

appellate court reviews the admissibility of evidence for an abuse of discretion.

10. Trial: Rules of Evidence. A trial court exercises its discretion in determining 

whether evidence is relevant and whether its prejudicial effect substantially outweighs its probative value.

11. Judgments: Words and Phrases. An abuse of discretion occurs when a trial 

court’s decision is based upon reasons that are untenable or unreasonable or if its 

action is clearly against justice or conscience, reason, and evidence.

12. Rules of Evidence. Under Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 

2008), irrelevant evidence is inadmissible.

13. Rules of Evidence: Words and Phrases. Under Neb. Evid. R. 401, Neb. Rev. 

Stat. § 27-401 (Reissue 2008), relevant evidence means evidence having any 
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tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without 

the evidence.

14. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 

2008), even relevant evidence is properly excluded if its probative value is substantially outweighed by its potential for unfair prejudice.

15. DNA Testing: Evidence. The relevance of DNA evidence depends on whether it 

tends to include or exclude an individual as the source of a biological sample.

16. ____: ____. Nebraska case law generally requires that DNA testing results be 

accompanied by statistical evidence or a probability assessment that explains 

whether the results tend to include or exclude the individual as a potential source.

17. Expert Witnesses: Words and Phrases. An expert does not have to couch his 

or her opinion in the magic words of “reasonable certainty,” but it must be sufficiently definite and relevant to provide a basis for the fact finder’s determination 

of a material fact.

18. Expert Witnesses. A court should exclude an expert’s opinion when it gives rise 

to conflicting inferences of equal probability, so the choice between them is a 

matter of conjecture.

19. Expert Witnesses: Proof: Words and Phrases. An expert opinion which is 

equivocal and is based upon such words as “could,” “may,” or “possibly” lacks 

the certainty required to sustain the burden of proof of causation for which the 

opinion has been offered.

20. Trial: DNA Testing: Evidence. Unless the State presents the statistical significance of DNA testing results that shows a defendant cannot be excluded as 

a potential source in a biological sample, the results are irrelevant. They are 

irrelevant because they do not help the fact finder assess whether the defendant is or is not the source of the sample. And because of the significance that 

jurors will likely attach to DNA evidence, the value of inconclusive testing 

results is substantially outweighed by the danger that the evidence will mislead 

the jurors.

21. Criminal Law: Trial: Evidence: Appeal and Error. An error in admitting 

or excluding evidence in a criminal trial, whether of constitutional magnitude 

or otherwise, is prejudicial unless the error was harmless beyond a reasonable doubt.

22. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis 

on which the jury actually rested its verdict; the inquiry is not whether in a trial 

that occurred without the error, a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered was surely unattributable to 

the error.

Appeal from the District Court for Cheyenne County: Derek

C. Weimer, Judge. Affirmed.

James R. Mowbray and Kelly S. Breen, of Nebraska 

Commission on Public Advocacy, for appellant.
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Jon Bruning, Attorney General, and Erin E. Tangeman for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Connolly, J.

I. SUMMARY

A jury convicted the appellant, Craig Anthony Johnson, 

of first degree murder, use of a weapon to commit a felony, 

and possession of a deadly weapon by a prohibited person. 

The court sentenced him to prison terms of, respectively, 

life, 40 to 50 years, and 10 to 20 years, with all terms to be 

served consecutively.

On appeal, Johnson argues that the court erred in (1) admitting evidence of inconclusive DNA testing results; (2) overruling his Batson1

 challenge to the State’s use of a peremptory 

strike against the only African-American prospective juror; and 

(3) admitting cumulative, gruesome autopsy photographs.

We conclude that Johnson has waived any claimed error 

regarding the photographs and that the court did not err in 

overruling his Batson challenge. We conclude, however, 

that the court improperly admitted irrelevant DNA testing 

results. But because we also conclude that the evidentiary 

error was harmless beyond a reasonable doubt, we affirm 

Johnson’s convictions.

II. BACKGROUND

In the spring of 2011, April Smith separated from her husband, Edward Smith (Ed), and began dating Johnson. At some 

point, Johnson began working near Sidney, Nebraska, at a pipe 

distributor for oil rig operations. April managed a convenience 

store near the distributor and lived in a duplex within eyesight 

of the store. Johnson moved in with April about the end of the 

summer. But April continued to maintain a close relationship 

with Ed, and Ed continued to help her with some financial 

1 See, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986); State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).
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obligations and the maintenance of her white van, which they 

jointly owned.

For Thanksgiving 2011, April invited Ed to have dinner with 

herself, Johnson, and April’s nephew and his family. Just before 

Thanksgiving, Johnson told a coworker that he was upset that 

April had invited Ed and that he would kill her if she ever left 

him to go back to Ed. During the Thanksgiving gathering, Ed 

refused Johnson’s offer to repair April’s van.

On Saturday morning, December 10, 2011, Ed went to 

April’s duplex and took her van to repair the brakes. He 

returned it around noon. Ed was a truckdriver and left shortly 

after returning the van to go to Texas.

Johnson worked on Saturday morning. His supervisor said 

that Johnson asked to leave work early because he heard 

that Ed was going to April’s house. She said that Johnson 

frequently mentioned meetings between April and Ed and 

was upset and jealous about their relationship. On Saturday 

morning, he told his supervisor that if he ever caught them 

together, he would “beat the shit out of both of them.” His 

supervisor advised him to leave if he was unhappy, and he 

apologized for his remark. On Saturday afternoon, Johnson 

called a coworker and asked whether he could come over 

because he and April were fighting, but the coworker had 

plans to leave town.

Later that evening, April’s nephew, his wife, and their children went to visit April at her duplex. Robert Gray, April’s 

nephew, said that Johnson was drinking beer and was unusually quiet most of the evening. Robert and his wife both said 

that Johnson was upset about other men flirting with April at 

the convenience store and about Ed’s repairing the brakes on 

April’s van. Robert’s wife described Johnson’s demeanor as 

angry and said that his and April’s interactions were tense; 

they went into the kitchen to talk privately a couple of times 

during the evening. Just before Robert and his family left 

around midnight, April and Johnson had started to argue. 

April’s neighbors reported hearing loud voices and arguing 

around 1 or 2 a.m. They recognized Johnson’s voice from previous fights between April and Johnson when they had tried 

to intervene. A neighbor in the adjacent duplex said that the 
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arguing continued for 30 to 45 minutes and that she heard “a 

couple of thuds.”

On Sunday morning, December 11, 2011, April’s employer 

saw her white van in front of her duplex while he was at the 

convenience store. At about 11:50 a.m., a sheriff’s officer 

was at the convenience store to respond to an alarm that had 

gone off. While he was checking the outside of the building, Johnson pulled up in April’s van. Johnson said that his 

girlfriend was the manager and that they had received a call 

from the alarm company. He told the officer that his girlfriend 

was having back problems and preparing to resign her position. Johnson opened the door with a key and deactivated 

the alarm.

Meanwhile, Robert and his wife tried to call April about 

11 a.m. and noon on Sunday, but she did not answer or return 

their calls, which was unusual. They went to April’s duplex a 

couple of times that afternoon, but the van was gone, she did 

not respond to knocks, the blinds were closed, and the deadbolt 

was locked, which was also unusual. Johnson’s pickup was 

parked in front of the duplex. They returned to April’s duplex 

that night but could not see inside. About 8:45 p.m., a security camera filmed Johnson while he was purchasing gas for a 

white van in Chapman, Nebraska, which is about 3 hours 45 

minutes from Sidney.

On Monday morning, December 12, 2011, Robert and his 

wife contacted the sheriff’s department. April’s employer had 

also contacted the office when she did not show up for work. 

Johnson had requested time off in advance for a doctor’s 

appointment.

At about 8 a.m. on Monday, two officers went to the duplex 

to check on April. When she did not answer their knocks, 

the officers spoke to people who might know where she was 

and learned that Johnson had taken the day off. They eventually broke into the duplex and found April’s body lying face 

down in the living room. A chief deputy sheriff believed she 

had been dead for quite a while from the appearance of her 

body. The officers could see that her hands and feet were tied, 

and there was blood on the couch beside her and on her arms 

and legs. After determining that April was dead, the sheriff’s 
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officers secured the duplex until State Patrol investigators 

could help.

A witness testified that while he was at a gas station in 

Brooklyn, Iowa, on Tuesday, December 13, 2011, a driver 

in a white van—whom he identified as Johnson—asked him 

for money to pay for gas. The van had South Dakota plates 

on it, even though Johnson had said he was from Sterling, 

Nebraska. Johnson was emotional and told the witness that he 

was having relationship problems and trying to get to a job 

in Illinois.

Two days later, on December 15, 2011, a sheriff’s officer in 

Jackson County, Michigan, pulled over April’s white van with 

South Dakota license plates for a traffic violation. Johnson 

was driving the van. But when the officer got out of his vehicle, Johnson accelerated back into traffic. A high-speed chase 

ensued, which ended when other officers set up “stop sticks” to 

puncture the van’s tires. Johnson initially refused to get out, so 

the officers arrested and handcuffed him. The arresting officer 

found the van’s Nebraska license plates inside and learned that 

it was stolen from the scene of a homicide, but he did not say 

this to Johnson. The South Dakota plates did not match the 

van’s vehicle identification number. Later, while the officer 

was booking Johnson, he blurted out, “‘What do you want 

from me I’m wanted for murder.’”

When Nebraska investigators learned that Michigan officers 

had arrested Johnson, they went to Michigan to bring Johnson 

back to Nebraska. They also obtained a search warrant to 

photograph his body and obtain fingernail scrapings. The photographs did not show any injuries. But when they attempted 

to scrape his right-hand fingernails, Johnson became confrontational and began to dig at his right-hand nails, discarding the 

debris on the floor, until the officers could restrain him. The 

deputy sheriff could not obtain scrapings from his right hand. 

The scrapings he obtained from Johnson’s left hand tested 

negative for the presence of blood, and DNA testing showed 

nothing of evidentiary value.

During the return trip to Nebraska, Johnson told a Nebraska 

investigator that he had planned to see an old friend in 
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Michigan and then turn himself in. Later, he said that “dope 

would play a role in the investigation.”

When the Nebraska investigators searched the van, they 

found Johnson’s T-shirt and athletic shoes with dark stains that 

they believed to be blood. The stains on both the T-shirt and 

shoes tested positive for blood, and the DNA profile extracted 

from these stains matched April’s profile. The investigators 

traced the South Dakota license plates to a vehicle in a Sioux 

Falls, South Dakota, salvage yard.

1. Jury Selection

During jury selection, the State used one of its peremptory 

challenges to strike juror No. 8. In a juror questionnaire, she 

listed her race or ethnicity as African-American and Hispanic 

Latino. Johnson is African-American, and juror No. 8 was the 

only minority represented in the jury pool. The defense challenged the strike in a side bar.

During an in camera discussion, the prosecutor explained 

that the juror had indicated on her questionnaire that she was 

acquainted with April because April was a customer at a pharmacy where the juror worked. The prosecutor believed that the 

juror could have knowledge related to April’s use of drugs—

evidence that the prosecutor believed was irrelevant but knew 

that Johnson would use in his defense.

The defense responded that the State’s proffered reason was 

pretextual and irrational. The defense argued that the prosecutor had not questioned the juror about her knowledge, i.e., 

whether she had filled any of April’s prescriptions. The State 

responded that it did not want to highlight the reason for striking her. The court overruled the objection.

2. Evidence Presented of the Crime Scene

and April’s Injuries

The investigators found blood in the main bedroom, bathroom, a second bedroom, and the dining room. They found 

dark-colored vomit in a trash can by the bed, and blood 

smeared on and around the toilet, suggesting that April had 

vomited there too. They believed the evidence showed signs of 
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a struggle throughout the duplex or that April was moving from 

place to place in an effort to survive.

When they turned over April’s body, they saw a ligature 

abrasion on her neck, a hand wound, a facial wound, and a 

gaping wound in the left side of her abdomen about 2 inches 

long. They also found a clump of April’s hair by her body 

and in other parts of the duplex, and several of her acrylic 

fingernails.

Inside a kitchen trash can, investigators found a white trash 

bag, a cell phone, a black baseball cap, and two blue knit hats. 

The cell phone belonged to April. The trash bag had blood 

splattered on the end by the drawstring, and a V-shaped piece 

was ripped out of it. Investigators found the ripped-out piece 

beside April’s body. A Nebraska State Patrol investigator stated 

that the trash bag appeared to have an imprint in it where it 

had been stretched over something. He believed the imprint 

was of a human face. He opined that the blood pattern indicated that the blood had been aspirated or exhaled onto the 

bag. The pathologist who performed the autopsy concluded 

that the pinpoint hemorrhages found on April’s mouth could 

have been caused by strangulation or suffocation. The ligature 

abrasion on her neck indicated strangulation. A forensic scientist found a fingerprint on the trash bag that matched one of 

Johnson’s fingerprints. DNA testing of the blood on the bag 

and the ripped-out piece produced DNA profiles that matched 

April’s profile.

Investigators also found a couple of knives in the sink, one 

of which had an 8-inch blade and a red substance dried on it. 

No identifiable fingerprints were found on the knife. The knife 

tested positive for the presence of blood; DNA testing of the 

knife handle and blade produced DNA profiles from a single 

source that matched April’s profile and excluded Johnson.

During the deputy sheriff’s testimony, the court admitted, without objection, a photograph showing the position of 

April’s body face-down beside the couch. During the other 

investigators’ testimonies, the State submitted, without objection, three photographs of blood found in the duplex. But 

Johnson objected to the State’s offer of eight more photographs of April’s body and the crime scene as cumulative and 
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an attempt to inflame the jurors’ passions. The State argued 

that photographs gave the jurors a perspective of the body’s 

location in the house and the violent scene that investigators encountered. The court overruled Johnson’s objections. 

After this ruling, the court admitted two more photographs 

from the crime scene, without objection, showing April’s 

bound hands—including the wound in her palm and the 

ligature abrasions around her wrists—and the stab wound to 

her abdomen.

The evidence showed that April had been prescribed hydrocodone pills for back problems, and investigators found three 

prescription bottles with these pills in her bedroom: one on 

the floor, one on her bed, and one in a plastic bag with other 

prescription bottles. But the State presented witnesses who 

testified that April had not abused her prescription drugs 

and was not involved in drug dealing. The pathologist stated 

that the toxicology report showed April had a toxic level of 

hydrocodone in her body, sufficient to cause death, and also 

some amount of a barbiturate. He stated that this evidence did 

not show that April had abused the drugs. But the evidence 

did show that she had taken the drugs close to the time of 

her death.

In addition to the stab wound and ligature abrasions, April 

had multiple bruises and abrasions on her face and body. The 

hand wound could have been a defensive wound. The stab 

wound in her abdomen was 71⁄2 inches deep and punctured her 

small intestine in a couple of places. It would not have caused 

immediate death, but it would have caused vomiting. The 

pathologist believed that April was alive after sustaining the 

stab wound to her abdomen because an inflammatory response 

had started in her body. The State submitted, without objection, 

several autopsy photographs of the injuries to April’s body. The 

pathologist opined that her death was a homicide caused by the 

stab wound to her abdomen and suffocation, with a contributing cause of multiple drug toxicity.

The State’s DNA expert testified about her testing of biological samples that investigators took from the crime scene. 

The court overruled Johnson’s continuing objections to three 

of the expert’s inconclusive testing results and her testimony 
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about them. Johnson objected that under Neb. Evid. R. 402 and 

403,2 the evidence was irrelevant and its potential for unfair 

prejudice outweighed its probative value.

III. ASSIGNMENTS OF ERROR

Johnson assigns, reordered, that the court erred as follows: 

(1) admitting cumulative, gruesome autopsy photographs that 

depicted the same injuries and thus allowing the prosecutor to 

inflame the jurors’ passions; (2) denying his Batson challenge 

based on an irrational and pretextual justification; and (3) 

admitting testimony and exhibits that Johnson’s DNA profile 

contained certain alleles that matched alleles found in a mixed 

blood sample, because such evidence lacked sufficient probative value.

IV. ANALYSIS

1. Johnson Has Not Preserved Error Regarding

the Court’s Admission of Photographs

Johnson assigns that the court erred in admitting gruesome 

autopsy photographs of April’s injuries. But he did not object 

to the admission of the photographs at trial. And in his brief, he 

argues that the court erred in admitting cumulative photographs 

taken at the crime scene—not autopsy photographs.

[1] For an appellate court to consider an alleged error, a 

party must specifically assign and argue it.3 Johnson has not 

assigned that the court erred in admitting cumulative crime 

scene photographs, and he has not argued his assignment that 

the court erred in admitting gruesome autopsy photographs. 

So we do not address whether the court erred in admitting 

any photographs.

2. The Court Was Not Clearly Wrong in Determining

That the Prosecutor’s Peremptory Challenge

Was Not Based on Race

Johnson assigns that the court erred in overruling his Batson 

challenge to the prosecutor’s use of a peremptory challenge 

2 See Neb. Rev. Stat. §§ 27-402 and 27-403 (Reissue 2008).

3 See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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to remove juror No. 8, the only prospective juror of AfricanAmerican descent. He contends that the prosecutor’s proffered 

reason for the challenge was pretextual. He argues that the 

prosecutor did not ask juror No. 8, who worked at the pharmacy where April filled her prescriptions, whether she possessed any special knowledge about April. Johnson also points 

out that the juror had stated that she could be impartial on her 

questionnaire. He contends that these facts raised an inference 

that the prosecutor sought her removal because of her race. 

We disagree.

[2,3] A prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, if that reason 

is related to his view concerning the outcome of the case.4 But 

under Batson v. Kentucky, a peremptory challenge to remove a 

prospective juror for a racially discriminatory reason violates 

the Equal Protection Clause.5 Determining whether a prosecutor impermissibly sought to remove a prospective juror based 

on race is a three-step process:

First, a defendant must make a prima facie showing that 

the prosecutor exercised a peremptory challenge because 

of race. Second, assuming the defendant made such a 

showing, the prosecutor must offer a race-neutral basis 

for striking the juror. And third, the trial court must then 

determine whether the defendant has carried his or her 

burden of proving purposeful discrimination. The third 

step requires the trial court to evaluate the persuasiveness 

of the justification proffered by the prosecutor. But the 

ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of 

the strike.6

[4,5] Once a prosecutor has offered a race-neutral explanation for a peremptory challenge and the trial court has decided 

the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie 

4 See Nave, supra note 1, citing Batson, supra note 1.

5 See, id.; State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).

6 Nave, supra note 1, 284 Neb. at 485, 821 N.W.2d at 730-31.
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showing that the challenge was racially motivated is moot.7

So we determine only whether the prosecutor’s reasons were 

race neutral and whether the trial court’s final determination 

regarding purposeful discrimination was clearly erroneous. We 

review de novo the facial validity of an attorney’s race-neutral 

explanation for using a peremptory challenge as a question of 

law.8 We review for clear error a trial court’s factual determinations whether an attorney’s race-neutral explanation is persuasive and whether his or her use of a peremptory challenge was 

purposefully discriminatory.9

[6] Under the second step of a Batson inquiry, a prosecutor 

must present a comprehensible reason for using a peremptory strike against a prospective juror in response to a Batson 

challenge. But in determining whether the explanation is 

race-neutral, a court is not required to reject the explanation 

because it is not persuasive, or even plausible; it is sufficient 

if the reason is not inherently discriminatory.10 Under our de 

novo review of the prosecutor’s proffered explanation for the 

peremptory challenge, we conclude that his explanation was 

not inherently discriminatory.

[7] Whether a prosecutor’s explanation for using a peremptory strike against a prospective juror is pretextual falls 

within the trial court’s ultimate factual determination in the 

third step of the Batson inquiry: “[W]hether an attorney’s 

race-neutral explanation for a peremptory challenge should 

be believed presents a question of fact.”11 A trial court’s 

determination that the explanation was race-neutral frequently 

involves its evaluation of a prosecutor’s credibility, which 

requires deference to the court’s findings absent exceptional 

circumstances.12

7 See Nave, supra note 1.

8 Id.

9 Id.

10 See id.

11 State v. Thorpe, 280 Neb. 11, 17, 783 N.W.2d 749, 757 (2010).

12 See Nave, supra note 1.
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Here, the prosecutor explained that he did not want to ask 

juror No. 8 whether she had knowledge of April’s drug use 

because the questioning would have emphasized his reason 

for seeking her removal. The record supports his belief that 

such questions could have raised concerns in the jurors’ minds 

about the validity of Johnson’s defense. In his opening statement, Johnson suggested that the evidence would show April 

was probably addicted to hydrocodone and could have been 

involved with dangerous individuals who killed her. Because 

the prosecutor explained that he knew Johnson would rely on 

April’s drug use as a defense, his decision to not question juror 

No. 8 about her knowledge of April’s drug use did not show 

that his proffered reason was pretextual. Moreover, the prosecutor denied that race was a factor in his decision and argued 

that if not for juror No. 8’s potential knowledge about the case, 

he would have “like[d] her” as a juror. He noted that she had 

recently served on a jury that had found the defendant guilty. 

The court was not clearly wrong in finding that this testimony 

was credible.

3. The Court Erred in Admitting Evidence

of Inconclusive DNA Testing Results

(a) Additional Facts

The State’s DNA expert, Melissa Kreikemeier, is a forensic 

scientist from the Nebraska State Patrol Crime Laboratory. She 

tested biological samples from the crime scene with the PCRSTR testing method.13 Using this method, she tried to detect 

genetic variations that are known to exist at specific segments 

in the DNA molecule.14 Kreikemeier explained that the individual variations are the number of times that a small sequence 

in the DNA molecule is repeated at a particular segment. The 

13 See State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004).

14 See State v. Carter, 246 Neb. 953, 967-69, 524 N.W.2d 763 (1994), 

overruled in part on other grounds, State v. Freeman, 253 Neb. 385, 571 

N.W.2d 276 (1997).
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segments are called loci, and the individual variations are 

called alleles.15

[8] In forensic analysis, a DNA profile is a person’s combination of alleles at each tested locus.16 Kreikemeier stated that 

the combination of alleles found at 15 designated loci produces 

a profile that is very rare and that she had never heard of two 

people having the same profile unless they were identical 

twins. She tested for alleles at these 15 loci, plus a locus that 

is tested to determine the sex of the contributor. Kreikemeier 

recorded the alleles she detected at each of the 15 designated 

loci as a number that represents the number of times a DNA 

sequence is repeated there. She used the known DNA profiles 

for April, Ed, and Johnson to compare against the alleles that 

she found in samples from unknown sources.

Kreikemeier explained that because individuals inherit an 

allele from each parent at every locus (which may be the 

same allele), if she detected more than two alleles at a locus, 

her testing showed the sample contained a mixture of DNA 

from more than one person.17 She said that for mixed-source 

samples, an analyst can sometimes (1) determine that one person contributed the majority of the DNA in the sample and (2) 

assign separate profiles to the major and minor contributors. 

But she explained that DNA testing can be affected by the 

quantity of the DNA present in a sample and whether it has 

been degraded.18

As stated, the court overruled Johnson’s continuing objections under evidence rules 402 and 403 to three of Kreikemeier’s 

inconclusive testing results and her testimony about them. She 

obtained the inconclusive results from testing the underside of 

15 See, e.g., State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012), citing 

David H. Kaye & George F. Sensabaugh, Jr., Reference Guide on DNA 

Identification Evidence, in Reference Manual on Scientific Evidence 129 

(Federal Judicial Center 3d ed. 2011).

16 See Kaye & Sensabaugh, supra note 15 at 139.

17 See id. at 183.

18 See id. at 151. See, also, Kofoed, supra note 15.
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two acrylic nails found in the duplex and the rope tied around 

April’s ankles where it was knotted at her feet.

Regarding the first acrylic nail, Kreikemeier determined 

that the sample contained mixed DNA and she produced 

profiles for major and minor contributors. The full major 

contributor profile matched April’s profile. But she obtained 

only a partial DNA profile for a minor contributor. In total, 

Kreikemeier recorded 12 alleles for a minor profile at the 15 

designated loci and none for the locus used to determine the 

contributor’s sex. Ten of these matched alleles in Johnson’s 

known profile, which showed 30 total alleles at the same 15 

loci, and two did not. Each recorded allele in the minor profile 

had an asterisk beside it. Kreikemeier stated that the asterisks 

meant “the data that we are seeing his [sic] lower, it’s kind 

of a low-level sample for the minor contributor.” Despite the 

weakness of the sample, she excluded April and Ed as the 

minor contributors. But she said she could not draw a conclusion about Johnson:

That means when I was doing my comparisons I was 

unable to include him because there was not a lot of DNA 

present but the DNA that I was saying [sic] did correspond with his so that way I could not exclude him. So 

I could neither include nor exclude so I could make no 

conclusions.

Upon Johnson’s questioning, Kreikemeier admitted that she 

could not even determine the sex of the minor contributor.

Regarding the second acrylic nail, Kreikemeier stated that 

the sample she took of it showed a “possible mixture” with a 

minor contributor’s DNA. The DNA profile she produced from 

the second nail exactly matched April’s profile and excluded 

Johnson. But beside one of the recorded alleles, Kreikemeier 

wrote a “+” sign. She stated that this sign indicated “a possible allele” but that she could not determine if this was “a true 

allele or not.”

Regarding her testing of the rope segment, Kreikemeier 

stated that she determined it also contained mixed DNA from 

major and minor contributors. The major profile matched 

April’s profile and excluded Johnson. She stated that she could 
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not draw any conclusions about the minor profile because she 

did not have enough information. The testing results show 

that Kreikemeier recorded three alleles in the minor profile, 

which were also marked by asterisks. Two of these alleles 

were recorded for the same locus and did not match either of 

Johnson’s known alleles at the same locus.

When discussing the minor profile for the first acrylic nail 

and the rope, Kreikemeier did not state the number of alleles 

that matched alleles in Johnson’s profile. Nor did she explain 

the frequency at which the possible matches occurred in the 

general population or the probability that an unknown random 

person could have the same combination.

(b) Parties’ Contentions

Relying on State v. Glazebrook,

19 Johnson assigns that the 

court erred in admitting DNA evidence that was unaccompanied by any statistical significance. The State contends that 

Glazebrook is distinguishable because it dealt with mitochondrial DNA (mtDNA), which cannot identify the source of an 

unknown biological sample. Alternatively, the State contends 

that a prosecutor needs to inform the jurors about the testing 

results, even if inconclusive, so they do not speculate that a 

sample contained DNA from a third person.

(c) Standard of Review

[9-11] When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

we review the admissibility of evidence for an abuse of discretion.20 A trial court exercises its discretion in determining whether evidence is relevant and whether its prejudicial 

effect substantially outweighs its probative value.21 An abuse 

of discretion occurs when a trial court’s decision is based upon 

reasons that are untenable or unreasonable or if its action is 

clearly against justice or conscience, reason, and evidence.22

19 State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).

20 State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014).

21 See State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).

22 Henderson, supra note 20.
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(d) Analysis

[12-14] Under evidence rule 402, irrelevant evidence is 

inadmissible.23 Under Neb. Evid. R. 401,24 relevant evidence 

means evidence having any tendency to make the existence 

of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without 

the evidence.25 Relevancy requires only that the degree of probativeness be something more than nothing.26 Under evidence 

rule 403, even relevant evidence is properly excluded if its 

probative value is substantially outweighed by its potential for 

unfair prejudice.27

[15,16] It is true, as the State argues, that DNA evidence 

is normally used to identify a defendant as the perpetrator of 

a crime. But this argument only states a purpose for which 

the State may present the evidence. DNA evidence can also 

contradict the State’s theory that a defendant was the perpetrator of a crime.28 But the relevance of DNA evidence depends 

on whether it tends to include or exclude an individual as the 

source of a biological sample. This does not mean that the test 

results must show that no other individual could be source. But 

our case law generally requires that DNA testing results be 

accompanied by statistical evidence or a probability assessment 

that explains whether the results tend to include or exclude the 

individual as a potential source.

For example, in State v. Bauldwin,

29 we stated that if a DNA 

profile from a mixed-source sample matches an individual’s 

known DNA profile, the analyst calculates the probability 

that someone other than the individual in question could have 

contributed DNA to the sample. In rejecting the defendant’s 

23 See State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013).

24 See Neb. Rev. Stat. § 27-401 (Reissue 2008).

25 State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014).

26 State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).

27 See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).

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

White, 274 Neb. 419, 740 N.W.2d 801 (2007).

29 Bauldwin, supra note 21.
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argument that these probabilities confuse jurors, we stated 

the following:

This is essentially a claim that a jury is not smart 

enough to understand and give weight to the statistical analysis that accompanies DNA evidence. Bauldwin 

offers no authority for this argument, and we reject it out 

of hand—juries are asked to analyze complex topics and 

evidence in many cases, and that is what the jury was 

asked to do here. Furthermore, DNA evidence without the 

accompanying probability assessment would be inadmissible because it would not aid the trier of fact. We have 

specifically held that DNA evidence is inadmissible without the probability assessment for that very reason. We 

are not persuaded to reconsider that position today.30

Other courts have reached the same conclusion.31

In Glazebrook, we considered testing results that could not 

exclude a defendant as the source of a hair found on the murder victim’s nightgown.32 There, we reversed the defendant’s 

conviction because of the trial court’s improper admission of 

his criminal history and remanded the cause for a new trial. 

In concluding that the error was not harmless, we noted that 

the mtDNA evidence had shown the defendant could not be 

excluded as the source of the hair. But we concluded that this 

evidence was not compelling because mtDNA evidence can 

only exclude individuals as a source and cannot identify a 

person as the source. We then considered whether the mtDNA 

evidence would be admissible on remand.

The defendant argued that the evidence was irrelevant 

absent evidence that the hair did not belong to any of the 

10 persons investigating at the crime scene. We rejected that 

argument. But we concluded that when courts have upheld the 

admission of mtDNA evidence, “the evidence has included 

expert testimony regarding the statistical significance of the 

30 Id. at 703, 811 N.W.2d at 288, citing Carter, supra note 14.

31 See, e.g., Peters v. State, 18 P.3d 1224 (Alaska App. 2001); Nelson v. 

State, 628 A.2d 69 (Del. 1993); People v. Coy, 243 Mich. App. 283, 620 

N.W.2d 888 (2000).

32 Glazebrook, supra note 19.
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fact that the defendant could not be excluded as the donor.”33

We cited an example of a case in which an expert testified 

that most of the general population could be excluded. But in 

Glazebrook, the database recording the number of people with 

the hair’s genetic variation was small and the State’s expert 

testified only about the number of times that the variation had 

been found in different populations. We emphasized that the 

record did not show the significance of the “raw data in arriving at a statistical probability analysis to establish relevancy.”34

We held that on remand, “the statistical significance of the fact 

that a particular individual cannot be excluded as the donor of 

mtDNA is an important factor in determining the relevancy of 

mtDNA evidence.”35

Contrary to the State’s argument, Glazebrook is not distinguishable solely because it dealt with mtDNA evidence. 

We reasoned that the relevance of genetic testing evidence 

that shows a defendant cannot be excluded as the potential 

source of a crime scene sample depends upon the statistical 

significance of that result. The same reasoning applies here. 

Obviously, if an allele, or a combination of alleles, is so common that a majority of people in the relevant population could 

not be excluded, then not excluding the defendant is weak 

evidence that he or she is the source. But without knowing 

that statistical probability, jurors cannot be expected to assess 

information that a defendant cannot be excluded.

Here, the evidence was even weaker and more difficult to 

assess. Kreikemeier testified that the partial minor profile she 

produced from the first acrylic nail was from a weak sample, 

suggesting that she could not even state with certainty that 

the alleles she recorded were accurate. Yet, her data was 

apparently strong enough for her to exclude April and Ed 

as the minor contributors. So based on Kreikemeier’s exclusions of two known profiles and her testimony that she could 

not exclude Johnson as the minor contributor because of the 

33 Id. at 434, 803 N.W.2d at 785.

34 Id. at 435, 803 N.W.2d at 786.

35 Id.
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consistencies she saw with his profile, a juror could rationally 

conclude that her inability to exclude Johnson was significant. 

Presenting this evidence without offering any statistical relevance of the matching alleles she found, or the probability that 

the minor profile would exclude a random person, suggested 

to the jury that Johnson was linked to the evidence and that 

the proof would be even stronger if investigators had found 

more DNA. That is, decoupling inconclusive results from their 

statistical relevance allows the State to suggest that the defendant’s DNA is present in a sample even if, in reality, its expert 

could exclude no one as a potential contributor.36

Similarly, the State presented irrelevant testimony that (1) 

Kreikemeier could not draw any conclusions about the minor 

profile found on the rope because she did not have enough 

information and (2) her testing of the second acrylic nail 

showed a “possible mixture” with a minor contributor.

[17-19] An expert does not have to couch his or her opinion in the magic words of “reasonable certainty,” but it must 

be sufficiently definite and relevant to provide a basis for the 

fact finder’s determination of a material fact.37 A court should 

exclude an expert’s opinion when it gives rise to conflicting 

inferences of equal probability, so the choice between them is a 

matter of conjecture.38 “An [expert] opinion which is equivocal 

and is based upon such words as ‘could,’ ‘may,’ or ‘possibly’ 

lacks the certainty required to sustain the burden of proof of 

causation for which the opinion has been offered.”39

Kreikemeier’s testimony that there may have been a minor 

contributor’s DNA on the second nail was not probative of 

the source of the DNA. And her testimony that she could not 

draw any conclusions about the partial minor profile she found 

from the rope sample followed her earlier testimony that her 

inconclusive testing results from the first acrylic nail meant 

36 See, Com. v. Nesbitt, 452 Mass. 236, 892 N.E.2d 299 (2008); Deloney v. 

State, 938 N.E.2d 724 (Ind. App. 2010); State v. Tester, 185 Vt. 241, 968 

A.2d 895 (2009).

37 See State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).

38 See id.

39 State v. Kuehn, 273 Neb. 219, 226, 728 N.W.2d 589, 598 (2007).
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she could neither include nor exclude Johnson as the minor 

contributor. Nor did she explain why the partial minor profile 

from the rope did not exclude Johnson, despite contradictions 

with his profile. And if this court cannot say with certainty 

whether Johnson should have been excluded or included, we 

assume that the jurors could have concluded from her testimony that Johnson was a possible source. So her testimony 

was either irrelevant or improperly suggested that the DNA 

evidence was stronger than it actually was.

“Because the potential precision of DNA testing is so well 

known, a jury might assume that any DNA profile match is 

extremely unlikely and therefore extremely probative”—even 

when this is not true.40 By permitting Kreikemeier to testify that a minor contributor’s DNA was found on the rope, 

without providing any statistical relevance for the alleles 

she detected, the court allowed the jurors to speculate that 

Johnson’s DNA was detected even if the State knew that conclusion was false.

It is no answer to argue, as the State does, that the presentation of inconclusive testing results is necessary to prevent 

jurors from speculating that a sample contains DNA from a 

third person. Inconclusive results cannot dispel that possibility. More important, the State creates the speculation by introducing the inconclusive testing results. During an in camera 

conference to discuss Johnson’s objections, the prosecutor 

specifically argued that presenting the testing results allows the 

jurors to draw their own conclusions about the significance of 

an unknown person’s DNA in a sample. But without knowing 

the statistical significance of DNA testing results, any conclusion that a juror draws from such evidence will likely be 

pure speculation.

[20] Consistent with our decision in Glazebrook, we hold 

that unless the State presents the statistical significance of 

DNA testing results that shows a defendant cannot be excluded 

as a potential source in a biological sample, the results are 

irrelevant. They are irrelevant because they do not help the 

fact finder assess whether the defendant is or is not the source 

40 See Peters, supra note 31, 18 P.3d at 1227.
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of the sample. And because of the significance that jurors will 

likely attach to DNA evidence, the value of inconclusive testing results is substantially outweighed by the danger that the 

evidence will mislead the jurors. We conclude that the court 

erred in admitting evidence of the inconclusive DNA testing 

results from the two acrylic nails and the rope segment.

4. The Court’s Error Was Harmless

Beyond a Reasonable Doubt

[21,22] An error in admitting or excluding evidence in a 

criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless the error was harmless beyond a 

reasonable doubt.41 Harmless error review looks to the basis 

on which the jury actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the actual 

guilty verdict rendered was surely unattributable to the error.42

Although DNA testing results can be potent evidence, that is 

not true here. Kreikemeier admitted that her DNA sample from 

the first acrylic nail was weak and that she could not include 

Johnson as a potential source of the minor contributor’s DNA. 

She admitted that she could not draw any conclusion about the 

rope segment and that she was not even sure that there was a 

minor contributor’s DNA on the second acrylic nail. It is true 

that through Kreikemeier’s testimony and reports, the State 

allowed the jurors to speculate about the significance of her 

testing results. But when considered in the context of the overwhelming evidence of guilt, we conclude that the verdict was 

surely unattributable to speculation.

April’s nephew and his wife testified that April and Johnson 

were arguing when they left on Saturday night shortly before 

midnight. April’s neighbor in the adjacent duplex testified 

that she heard “a couple of thuds” and loud arguing for 30 

41 State v. Matthews, 289 Neb. 184, 854 N.W.2d 576 (2014); State v. Faust, 

265 Neb. 845, 660 N.W.2d 844 (2003), disapproved in part on other 

grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007); State 

v. Lenz, 227 Neb. 692, 419 N.W.2d 670 (1988).

42 See, Matthews, supra note 41; Faust, supra note 41.
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to 45 minutes around 1 to 2 a.m. on Sunday. April did not 

respond to calls on Sunday morning, and by that evening, 

Johnson had fled in her van. When officers found April on 

Monday morning, she had been dead for quite a while. After 

Michigan officers arrested Johnson, he told one of them that 

he was wanted for murder, and he resisted efforts to scrap 

his fingernails for DNA evidence. On the return trip, he told 

Nebraska investigators that he had planned to turn himself in 

and that drugs would play a role in the investigation.

This evidence proved his consciousness of guilt. But even 

more damning was the DNA evidence showing that April’s 

blood was on his shirt and shoes that were found in the van. 

And investigators found his fingerprint on the trash bag that 

was used to suffocate or strangle April. We reject Johnson’s 

argument that a single white hair, from an unidentified female, 

which was found in April’s hand, is sufficient to undermine 

confidence in the verdict. Officers found April face down on 

carpet, and they believed that she had moved throughout the 

house before she was killed. Any visitor to the duplex could 

have left a hair behind. We conclude that the verdict was surely 

unattributable to the court’s error in admitting inconclusive 

DNA testing results.

V. CONCLUSION

We conclude that under our briefing rules, Johnson has 

waived any error related to the court’s admission of autopsy 

or crime scene photographs. We conclude that the court was 

not clearly wrong in determining that the prosecutor’s peremptory challenge to juror No. 8 was not racially motivated. We 

conclude that the court erred in admitting inconclusive DNA 

evidence without accompanying evidence showing the statistical relevance of the testing results. But we conclude that the 

error was harmless beyond a reasonable doubt because the 

jury’s guilty verdicts were surely unattributable to the error. We 

therefore affirm Johnson’s convictions.

Affirmed.

Cassel, J., concurring.

I write separately for two reasons. First, it is important to 

distinguish between inconclusive results and testimony that 
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a subject can be included, but not excluded, as the source of 

DNA evidence. Second, while inconclusive DNA results are 

normally not admissible, there are circumstances where they 

may become admissible. I have no quarrel with the majority’s 

abuse of discretion standard of review.

Inconclusive results arise when the DNA test provides no 

information to include or exclude a person, because of an 

insufficient sample or some other reason.1 Truly inconclusive 

results, in failing to either include or exclude the defendant, 

are wholly neutral.2 Thus, such results are not relevant, because 

they do not have a tendency to prove any particular fact that 

would be material to an issue in the case.3 In the normal case, 

inconclusive results should not be admitted.4 But if admitted, 

the admission is harmless error.5

However, “[w]hether or not DNA test results fail to exclude 

a person as a potential contributor to sample material poses 

a wholly different question from whether the test results are 

inconclusive[.]”6 Evidence that a subject may be included, 

but not excluded, as the source of DNA evidence is probative 

evidence.7 It may serve “to corroborate other evidence and 

support the Government’s case as to the identity of the relevant perpetrators.”8

And as reflected in the majority opinion, evidence that a 

person may be included, but not excluded, must be accompanied by testimony explaining the statistical relevance of the 

nonexclusion results.9 Without reliable accompanying evidence as to the likelihood that the test could not exclude 

1 Com. v. Almonte, 465 Mass. 224, 988 N.E.2d 415 (2013).

2 See Com. v. Cavitt, 460 Mass. 617, 953 N.E.2d 216 (2011).

3 See id.

4 See id.

5 See, Clark v. State, 96 A.3d 901 (Md. Spec. App. 2014); Cavitt, supra 

note 2.

6 Almonte, supra note 1, 465 Mass. at 239-40, 988 N.E.2d at 427.

7 See U.S. v. Morrow, 374 F. Supp. 2d 51 (D.D.C. 2005).

8 Id. at 65.

9 See Com. v. Mattei, 455 Mass. 840, 920 N.E.2d 845 (2010).
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other individuals in a given population, the jury has no way 

to evaluate the meaning of the result.10 Admitting such evidence without proper interpretation creates a greater risk of 

misleading the jury and unfairly prejudicing the defendant.11

Thus, trial courts confronted by testimony that a subject cannot be excluded must insist that the evidence be accompanied 

by evidence of its statistical relevance.

In the case before us, the results were truly inconclusive. 

Kreikemeier testified that she could neither include nor exclude 

Johnson as a source of the minor profile recovered from the 

first acrylic nail. And her testimony as to the minor profiles 

on the second acrylic nail and the rope segment were similarly 

inconclusive. Thus, as to Johnson, Kreikemeier’s testimony 

was wholly neutral and irrelevant. It did not tend to establish 

that Johnson was the contributor of the minor profiles recovered from any of the samples. I agree with the majority that its 

improper admission was harmless error.

But I wish to make clear that while inconclusive DNA 

results are normally not admissible, there are circumstances 

where they may become admissible. Inconclusive results may 

properly be admitted to rebut an attack on the sufficiency of 

a police investigation.12 “When faced with such a suggestion, 

the prosecutor is entitled to introduce testimony to demonstrate that tests were performed and results (even if inconclusive) were obtained.”13 Thus, I emphasize that in another case 

and under different circumstances, inconclusive DNA testing 

results may be admissible.

Heavican, C.J., joins in this concurrence.

10 See id.

11 See id.

12 See, Clark, supra note 5; Com. v. Mathews, 450 Mass. 858, 882 N.E.2d 

833 (2008).

13 Mathews, supra note 12, 450 Mass. at 872, 882 N.E.2d at 844.