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State of Nebraska, appellee, v. 

Steven Jacob, appellant.

___ N.W.2d ___

Filed June 4, 2021. No. S-20-584.

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. ____: ____. 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. ____: ____. Decisions regarding appointment of counsel under the DNA 

Testing Act are reviewed for an abuse of discretion.

4. Judgments: Appeal and Error. An appellate court reviews a denial of 

a motion to alter or amend the judgment for an abuse of discretion.

5. DNA Testing. Nebraska’s DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to establish 

innocence after a conviction.

6. ____. If the criteria set forth in Neb. Rev. Stat. § 29-4120(1) (Reissue 

2016) are met and if the court further determines that the requirements 

of § 29-4120(5) have been met, then the court must order testing.

7. DNA Testing: Evidence. The requirement that the requested DNA 

testing produce noncumulative exculpatory evidence is relatively undemanding for a movant seeking DNA testing and will generally preclude 

testing only where the evidence at issue would have no bearing on the 

guilt or culpability of the movant.

8. DNA Testing. The nonpresence of an individual’s DNA profile in a 

biological sample does not preclude that individual from having been 

present or in possession of the item tested.

9. ____. The nonpresence of an individual’s DNA profile in a biological 

sample merely shows the individual’s DNA was not present in the specific biological sample tested.

Nebraska Supreme Court Online Library

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

07/02/2021 01:08 AM CDT
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10. DNA Testing: Evidence. DNA evidence is not a videotape of a crime, 

and testing only shows whether the biological sample in question 

belonged to the person tested against.

Appeal from the District Court for Lancaster County: Darla 

S. Ideus, Judge. Affirmed.

Steven Jacob, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Miller-Lerman, Cassel, Funke, and Papik, JJ.

Funke, J.

Steven Jacob appeals the district court’s denial of his motion 

for testing under Nebraska’s DNA Testing Act 1 and his motion 

for the appointment of counsel. Jacob argues the district court 

erred in denying his motion by determining the requested testing would not exonerate Jacob nor would it prove that he was 

not the shooter. We affirm.

BACKGROUND

Jacob was convicted of murder in both the first and second degrees and of using a firearm to commit those crimes in 

connection with the 1989 shooting deaths of Melody Hopper 

and James Etherton. 2 In 1988, Jacob was dating Hopper. 

However, after the relationship deteriorated, Hopper began dating Etherton and moved into Etherton’s house. On August 1, 

1989, Hopper advised her work supervisor that before leaving 

her house that morning, Hopper heard the door handle rattle 

and the doorbell ring. When Hopper opened the door, Jacob 

entered the house uninvited and stated that he wanted to talk 

about getting back together. When Hopper told Jacob that she 

1 Neb. Rev. Stat. § 29-4116 et seq. (Reissue 2016).

2 See State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998), abrogated on 

other grounds, State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
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was not interested, Jacob told her that he at least wanted to 

talk and that if she would not do that, he might do something 

drastic. Hopper had to physically shove Jacob out of the house 

to get him to leave.

John Ingram was a coworker of Etherton and rented a 

basement bedroom from him. On August 2, 1989, at approximately 3:45 a.m., Ingram woke up to use the bathroom. As 

he walked out of his bedroom, he saw glass on the floor by 

the back door and heard the floor above him creak. He realized someone was in the house, so he retrieved his .22-caliber 

pistol. When he returned to the basement stairway, he heard 

three gunshots, a woman scream twice, then three or four 

more gunshots. After the last gunshot, Ingram heard a shell 

casing roll around upstairs and a thump on the floor above 

him. Fearing someone had been shot, Ingram ran out the back 

door and down the block. He went to a house he believed 

was owned by a fire marshal. When the door was answered, 

Ingram stated that someone had been shot and “they had emptied a clip on them.”

At approximately 4 a.m., two officers arrived at Etherton’s 

house. They discovered that the back, basement screen door 

had been propped open with a rock and that the glass on the 

inner door was broken. One of the officers also observed a 

storm window on the ground that had been removed, which 

was later found to contain Jacob’s fingerprints. In a hallway 

near the upstairs bedroom, the officers found Etherton’s body 

with three gunshot wounds in it. The officers then heard a faint 

cry from the bedroom, where they found Hopper suffering 

from two gunshot wounds. Hopper died several days later.

Upon further investigation, the officers found six shell casings and one live round in the house. All casings were from 

fired 9-mm bullets and fired from the same weapon. The live 

round was also a 9-mm cartridge. Jacob’s father testified that 

Jacob owned a 9-mm pistol. Additionally, Jacob testified that 

he had owned a 9-mm Llama pistol. However, the pistol was 

never recovered. A four-page letter written by Jacob to Etherton 
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was also found in the bedroom. Jacob testified that the letter, 

dated July 9, 1989, was written to explain a comment he made 

about Etherton’s being responsible for Hopper. Jacob ended the 

letter by stating that he hoped Etherton would “be happy and 

more successful [with Hopper] than [he had] been.”

At trial, Ingram testified that while waiting for police, he 

saw a light-colored car drive by. He described the driver as 

having a receding hairline, glasses, a mustache, and dark hair. 

When he saw a picture of Jacob on the news the next day, he 

recognized Jacob as the driver of the car and identified him to 

the police the following day.

Jacob claimed that he left for a vacation on August 1, 1989, 

and drove to Minnesota, South Dakota, North Dakota, and then 

to Canada. Evidence showed that on August 9, Jacob bought a 

plane ticket from Canada to England. However, due to various 

unforeseen events, Jacob ended up in Maine and bought a plane 

ticket to Boston. Jacob was arrested on August 10 in Maine, 

when he attempted to sell his van at a used-car dealership.

Jake Faulkerson, who shared a cellblock with Jacob for a 

brief time in September 1989, testified that Jacob told him that 

he “was not going to end up doing a minute on his time . . . 

because he didn’t leave any witnesses.” Jacob also allegedly 

told Faulkerson, “I shot him first so the bitch could see what 

she had coming.”

Jacob was convicted for the double homicide. However, on 

appeal, this court determined that the district court erroneously 

admitted into evidence statements Hopper made in the hospital declaring Jacob to be her assailant, and it reversed, and 

remanded for a new trial. 3 Upon retrial, Jacob was convicted 

for the double homicide and sentenced to two terms of life 

imprisonment and two terms of not less than 6 years 8 months 

nor more than 20 years’ imprisonment, all to be served consecutively. On appeal, Jacob’s convictions and sentences were 

affirmed by this court.

3 See State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).
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Motion for DNA Testing

In 2019, Jacob filed a motion for DNA testing on two types 

of evidence found at the crime scene: (1) the six shell casings 

and one unfired cartridge and (2) potential biological evidence 

recovered from the living room. In 1989, four “slugs” were 

sent for DNA testing. There was no blood detected on the slug 

found in the hallway next to Etherton’s body. Additionally, 

although there was blood present on three other slugs found on 

the bed, under the bed, and behind the headboard, there were 

insufficient amounts of blood on each slug for DNA testing. 

Jacob argued that with current methods of retrieving DNA 

from shell casings, the DNA on the slugs could “identify who 

took and loaded the firearm from [his] office” and is exculpatory because it “shows the Llama 9mm handgun used in the 

shooting was NOT in [his possession] at the time of and preceeding [sic] the shooting.”

According to Jacob, it was Hopper alone, or Hopper and 

Etherton together, who took Jacob’s gun and car that night. 

Jacob argues that although his gun could hold up to eight cartridges, he only kept four cartridges in the clip while it was 

“being stored for a long time.” Therefore, Jacob contended, 

because the police found six spent cartridges and one unfired 

cartridge at the crime scene, whoever took the handgun would 

have had to load more cartridges into it. Thus, according to 

Jacob, that person’s DNA could be present on the slugs found 

by the police.

A gauze sample from a “‘spot in [the] living room’” was 

also sent for DNA testing in 1989. However, no blood was 

found on the gauze. Referencing the testimony of Etherton’s 

son, the testimony of Ingram, and the “‘Nurse’s Notes’” from 

Hopper’s stay in the hospital, Jacob developed a theory that the 

stain found on the living room carpet was present prior to the 

shooting. Jacob claimed Hopper and Etherton were having sexual intercourse while Hopper was menstruating, which would 

explain why Hopper’s and Etherton’s DNA would be on the 

floor. Jacob also argued Etherton was a “violently jealous man” 
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who forced himself upon Hopper, giving Hopper a motive to 

shoot Etherton.

The district court entered an order requiring the State to take 

such steps as necessary to ensure the items were secure and to 

prepare an inventory confirming the items were in the State’s 

possession. The State subsequently filed the inventory of evidence confirming the items Jacob wished to have tested were 

in the State’s possession.

On October 17, 2019, Jacob filed a motion to be appointed 

counsel and to proceed in forma pauperis. The court deferred 

ruling on the motion for counsel, deciding that the motion was 

premature. Then, on October 24, the State filed a motion to 

deny DNA testing. In its motion, the State alleged that Jacob 

failed to meet his burden under § 29-4120(5)(c), because the 

requested DNA testing would only produce cumulative evidence that is irrelevant to the claim that Jacob was wrongfully 

convicted or sentenced. This was followed by an objection 

filed by Jacob on November 4. In his objection, Jacob clarified his theory regarding what happened by asserting that after 

Hopper shot Etherton, Ingram took the gun from Hopper, shot 

Hopper, and then removed the gun from the house. Jacob 

further asserted it was Ingram who threw a rock through the 

window to make it look like a home invasion. On November 

7, a hearing was held on the State’s motion to deny DNA testing. At the hearing, counsel for the State referenced the bill of 

exceptions from Jacob’s second murder trial:

Judge, I did have the original Bill of Exceptions from the 

second trial brought in. I just reference those and those 

are not part of the record, I realize that. But in particular, 

I also had brought in the portion of the Bill of Exceptions 

from the first trial dealing with the exhibits that . . . Jacob 

wanted to have DNA tests run on; in particular, that would 

be the shell casings and the cartridge that was found. And 

the reason I brought that volume in, judge, and if I may, 

that is Volume VIII of the original trial of the first trial 
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involving . . . Jacob in this double homicide. And in that 

trial, they offered those items for the jury.

On March 11, 2020, the district court entered an order denying Jacob’s motion for DNA testing and granting the State’s 

motion to deny DNA testing. The court defined exculpatory 

evidence as “evidence favorable to the person in custody 

and material to the issue of the person’s guilt” and cited our 

decision in State v. Buckman,

 4 where we explained that “this 

requirement is relatively undemanding . . . and will generally 

preclude testing only where the evidence at issue would have 

no bearing on the guilt or culpability of the movant.” The court 

further explained that despite this low threshold, DNA testing 

is not required if such testing would not produce exculpatory evidence.

The district court compared the facts of Jacob’s case to 

similar fact patterns in State v. Myers,

 5 State v. Dean, 6 and 

State v. Lotter,

 7 and held that like those cases, the absence of 

Jacob’s DNA from the shell casings or live round would be, at 

best, inconclusive and not exculpatory. The court determined 

that such DNA testing would not prove that Jacob was not in 

possession of the gun at the time of the shooting. The court 

found that the presence of DNA from Hopper, Etherton, or 

Ingram would not be exculpatory, because all three individ

uals lived at the home where the crime was committed. The 

court concluded that even if it were to assume that Jacob’s 

DNA was absent from the items Jacob requested to be tested, 

or that the DNA of Hopper, Etherton, or Ingram were present 

on those items, it would be mere speculation to conclude that 

this would exonerate Jacob from being the person who fired 

the shots. The district court ultimately denied Jacob’s motion 

4 State v. Buckman, 267 Neb. 505, 515, 675 N.W.2d 372, 381 (2004).

5 State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020).

6 State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006).

7 State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
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for DNA testing and granted the State’s motion to deny DNA 

testing. As a result, the court also denied Jacob’s motion to 

proceed in forma pauperis and his motion for appointment 

of counsel.

Motion to Alter 

or Amend

On March 18, 2020, Jacob filed a motion to alter or amend 

the court’s March 11 order. Jacob argued that the court (1) 

misrepresented the claims contained in his motion for DNA 

testing and (2) applied an improper standard of law. Jacob 

reiterated his theories about the night of the murders. In 

regard to DNA testing on the slugs, Jacob reasserted his argument that because he only kept four cartridges loaded in the 

gun, and because the police found six shell casings and one 

unfired cartridge, the person who fired the gun would have 

had to insert more cartridges, meaning that the DNA of the 

shooter could be on the slugs found at the crime scene. In 

regard to DNA testing on the gauze, Jacob stated that the court 

ignored the fact that the stain could also contain “the DNA of 

gut bacteria (like E. Coli) found in human feces.” Jacob contended such DNA testing could be evidence of nonconsensual 

sexual intercourse, providing Hopper with a motive to shoot 

Etherton.

Jacob further argued that the proper legal standard is “the 

Court must GRANT DNA testing that MAY produce noncumulative exculpatory evidence relevant to the claim that [Jacob] 

was wrongfully convicted” and argued that the court erred by 

turning the standard into “the Court must DENY DNA testing 

that MAY NOT produce noncumulative exculpatory evidence 

relevant to the claim of wrongful conviction.”

Before the court could rule on his motion to alter or amend, 

Jacob filed a notice of appeal, intending to appeal the March 

11, 2020, order and the court’s ruling on his pending motion to 

alter or amend. We dismissed the appeal pursuant to Neb. Ct. 

R. App. P. § 2-107(B)(1) (rev. 2017). On July 31, Jacob filed 
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a “Request for Hearing or Ruling” seeking a hearing or ruling 

on his motion to alter or amend the court’s March 11 judgment. On August 3, the district court entered an order deeming 

Jacob’s motion to alter or amend as abandoned for failure to 

file a notice of hearing and certificate of service and, for purposes of appeal, denied the motion.

Appeal

On August 13, 2020, Jacob filed another notice of appeal, 

intending to appeal the March 11 order denying his motion for 

DNA testing and the August 3 order finding his motion to alter 

or amend abandoned and therefore denied. On the same day, 

Jacob filed a praecipe for a bill of exceptions. The praecipe 

stated the following:

Please prepare a Bill of Exceptions for the second 

appeal of this matter to include (some of which you have 

previously prepared for the first appeal):

1. The hearing held on November 7, 2019; please 

include all of the exhibits offered into evidence at that 

hearing (including the entire record of the two trials in 

this case; see, p.3., lines 9-18 from the first appeal’s Bill 

of Exceptions);

2. The hearing held on December 6, 2019; please 

include all of the exhibits offered into evidence at that 

hearing.

Please note that other than the request for the reference 

to the “entire record” in ¶1, above, as meaning the Bill 

of Exceptions the County Attorney refered [sic] to, this 

request is the same as you have previously prepared for 

the appeal of this matter.

On December 1, 2020, Jacob filed a “Motion for Order for 

Bill of Exceptions,” asking this court to order the district court 

and the court reporter to provide this court with the bill of 

exceptions to include a complete record of Jacob’s second trial. 

We overruled this motion on December 9, as the bill of exceptions was filed on December 8.
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On March 25, 2021, Jacob filed another motion for the bill 

of exceptions requesting the correct record. Jacob stated that 

the copy of the bill of exceptions he received listed exhibits 

735 to 753, even though the docket sheet showed the current 

bill of exceptions contained exhibits 735 to 752. Jacob argued 

the bill of exceptions was altered and requested a copy of the 

“new or altered Bill of Exceptions.” Though the cover page of 

the bill of exceptions lists exhibits 735 to 752, the actual content of the bill of exceptions includes exhibits 735 to 753. We 

overruled this motion on April 13.

ASSIGNMENTS OF ERROR

Jacob assigns, reordered and restated, that the district court 

(1) abused its discretion by denying his motion for DNA testing, (2) abused its discretion by refusing to appoint him counsel, (3) abused its discretion by denying his motion to alter or 

amend, and (4) failed to produce the correct bill of exceptions 

he requested for his appeal.

STANDARD OF REVIEW

[1,2] 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. 8 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. 9

[3] Decisions regarding appointment of counsel under the 

DNA Testing Act are reviewed for an abuse of discretion. 10

[4] An appellate court reviews a denial of a motion to alter 

or amend the judgment for an abuse of discretion. 11

8 Myers, supra note 5.

9 Id.

10 Id.

11 State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
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ANALYSIS

Denial of Jacob’s Motion 

for DNA Testing

[5,6] Nebraska’s DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order 

to establish innocence after a conviction. 12 Pursuant to the act, 

a person in custody takes the first step toward obtaining possible relief by filing a motion in the court that entered the judgment requesting forensic DNA testing of biological material. 13

Section 29-4120(1) provides the parameters for such motion 

and states:

Notwithstanding any other provision of law, a person 

in custody pursuant to the judgment of a court may, at 

any time after conviction, file a motion, with or without 

supporting affidavits, in the court that entered the judgment requesting forensic DNA testing of any biological 

material that:

(a) Is related to the investigation or prosecution that 

resulted in such judgment;

(b) Is 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; 

and

(c) Was not previously subjected to DNA testing or 

can be subjected to retesting with more current DNA 

techniques that provide a reasonable likelihood of more 

accurate and probative results.

We pause at this point to observe there is no dispute that 

Jacob met these required criteria for filing a § 29-4120(1) 

motion. If the above criteria are met and if the court further 

determines that the requirements of § 29-4120(5) have been 

12 Myers, supra note 5; State v. Betancourt-Garcia, 299 Neb. 775, 910 

N.W.2d 164 (2018). See § 29-4117.

13 Id.
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met, then the court must order testing. 14 Section 29-4120(5) 

provides:

Upon consideration of affidavits or after a hearing, the 

court shall order DNA testing pursuant to a motion filed 

under subsection (1) of this section upon a determination that (a)(i) the biological material was not previously 

subjected to DNA testing or (ii) the biological material 

was tested previously, but current technology could provide a reasonable likelihood of more accurate and probative results, (b) the biological material has been retained 

under circumstances likely to safeguard the integrity of its 

original physical composition, and (c) such testing may 

produce noncumulative, exculpatory evidence relevant 

to the claim that the person was wrongfully convicted 

or sentenced.

In the instant case, there is also no dispute that Jacob met the 

first two criteria for DNA testing under § 29-4120(5). However, 

the State argued, and the district court agreed, the third requirement, that such DNA testing “may produce noncumulative, 

exculpatory evidence relevant to the claim that the person was 

wrongfully convicted or sentenced,” had not been met.

[7] The Nebraska Legislature has defined the term “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. 15 This court has explained that “[t]his requirement is 

relatively undemanding . . . and will generally preclude testing 

only where the evidence at issue would have no bearing on the 

guilt or culpability of the movant.” 16 In other words, despite 

this low threshold, a court is not required to order postconviction DNA testing if such testing would not produce exculpatory evidence. 17

14 Myers, supra note 5.

15 § 29-4119.

16 Myers, supra note 5, 304 Neb. at 797, 937 N.W.2d at 187. Accord 

Buckman, supra note 4.

17 See State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019).
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Jacob claims the requested testing on the slugs would show 

other individuals’ DNA on the slugs, which would prove that 

he was not the shooter. Jacob also claims the requested testing 

on the gauze would show the presence of someone else’s DNA, 

ultimately giving Hopper a motive to perpetrate a murdersuicide. We agree with the district court’s conclusion that even 

if we were to assume that Jacob’s DNA was absent from the 

items, or that the DNA of Hopper, Etherton, or Ingram were 

present on those items, such results would not exonerate Jacob 

from being the person who fired the shots.

[8,9] In Myers, we addressed the denial of a request for 

DNA testing by a defendant convicted of murder. 18 In that 

case, the defendant requested DNA testing on several items 

of evidence, including bullet casings, taken from the crime 

scene and argued that if testing showed the presence of other 

male DNA, but failed to show the presence of his DNA, he 

would be proved innocent. We noted that even if the defend

ant’s DNA was not on the tested items, such a result would 

not prove that the defendant was not at the crime scene, nor 

would it prove that he did not commit the crimes. 19 Thus, the 

nonpresence of an individual’s DNA profile in a biological 

sample does not preclude that individual from having been 

present or in possession of the item tested. 20 Instead, such 

results would merely show the individual’s DNA was not present in the specific biological sample tested. 21 In affirming the 

district court’s denial, we explained that it would be speculation to prove the defendant did not commit the crime merely 

because the DNA testing would show the defendant’s DNA 

was not present on the items in the victim’s apartment, or on 

the gun and ammunition used in the crime. 22 We concluded 

18 Myers, supra note 5.

19 See id.

20 Id.

21 Id.

22 See id.
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this was so, particularly in view of the persuasive evidence of 

the defendant’s presence at the apartment and possession of 

the gun the night of the murder. 23

Likewise, in Dean, the defendant argued that the testing of 

a firearm and ammunition used in the commission of a murder 

would not produce any biological material associated with 

him. 24 The defendant then extrapolated that someone else’s 

DNA on the items would prove he was not the shooter. 25 We 

held that “even if [the defendant] is correct and DNA testing 

would not detect the presence of his DNA on the objects in 

question, the result would be at best inconclusive, and certainly 

not exculpatory.” 26 We concluded that in light of the other evidence offered at trial, the district court’s denial of DNA testing 

was not an abuse of discretion. 27

[10] Additionally, in Lotter, we affirmed the denial of the 

defendant’s request for DNA testing following his murder convictions. 28 In Lotter, the defendant claimed that blood spatter 

from the victims on an accomplice’s gloves, shoes, or clothing 

would establish that the accomplice was very close to the victims when they were shot and that the accomplice was not at 

the locations he described in his trial testimony. The defendant 

contended that such DNA test results would aid in establishing that the accomplice lied at trial and would prove that the 

accomplice shot all three victims. 29 We concluded that the 

accomplice’s testimony would not have been contradicted even 

if the defendant’s claims that testing would show the victims’ 

blood on the accomplice’s clothes were correct. 30 In Lotter, we 

23 Id.

24 Dean, supra note 6.

25 See id.

26 Id. at 976, 708 N.W.2d at 644.

27 See Dean, supra note 6.

28 Lotter, supra note 7.

29 See id.

30 See id.
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explained that DNA evidence is not a videotape of a crime and 

that testing only shows whether the blood in question belonged 

to the person tested against. Because other evidence received 

was consistent with the alleged presence of the victims’ blood 

on the accomplice’s clothes and because testing would have 

only established whether the blood belonged to one or more of 

the victims, not how it was deposited on each item, we found 

it would be mere speculation to conclude that blood was on the 

accomplice’s clothing because he was the shooter. 31 We held 

in Lotter that such testing could not establish noncumulative, 

exculpatory evidence relevant to the defendant’s claim that he 

was wrongfully convicted or sentenced.

Similar to the situations in Myers and Dean, the other evidence received during Jacob’s trial contradicts his underlying 

theory that he was not at the house and did not possess the gun 

used in the murders of Hopper and Etherton. 32 Hopper’s work 

supervisor testified that the day before the murders, Hopper 

told him that Jacob wanted to talk to her and that if she would 

not do that, he might do something drastic. When officers 

arrived at the crime scene, they discovered that the basement 

screen door had been propped open with a rock and that the 

glass on the inner door was broken out. They also observed 

that someone had removed a storm window from a window 

next to the basement door, which window was later found to 

contain Jacob’s fingerprints. Additionally, a firearms examiner 

testified that all the casings found at the crime scene were 

from 9-mm bullets fired from the same weapon. Both Jacob 

and Jacob’s father testified that Jacob owned a 9-mm pistol. 

Ingram testified that on the night of the murders, while he 

waited for police to arrive, he saw a car slowly drive by and 

described the driver as having a receding hairline, glasses, a 

mustache, and dark hair. He testified that he later recognized 

the driver as Jacob after seeing Jacob’s picture on the news the 

31 See id.

32 See, Myers, supra note 5; Dean, supra note 6.
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next day. At trial, Ingram identified Jacob as the driver of the 

vehicle. Faulkerson testified that while sharing a cellblock with 

Jacob, Jacob stated that he “was not going to end up doing a 

minute on his time . . . because he didn’t leave any witnesses.” 

Faulkerson also testified that Jacob told him, “I shot him first 

so the bitch could see what she had coming.” This other evidence of Jacob’s guilt is overwhelming.

Jacob’s argument that testing will produce results which 

contradict the evidence presented at trial and show he was not 

present at Etherton’s house is not persuasive. As we have said, 

DNA evidence is not a videotape of a crime, and the nonpresence of an individual’s DNA profile in a biological sample 

does not preclude that individual from having been present or 

in possession of the item tested. Instead, such results would 

merely show that Jacob’s DNA was not present in the specific 

biological sample tested. 33 It would be mere speculation to 

conclude that the presence of Etherton’s, Hopper’s, or Ingram’s 

DNA on the slugs or the stain found in the living room would 

exclude Jacob from having been at Etherton’s house the night 

of the shooting or from having been the shooter.

Because the requested testing would fail to lead to noncumulative exculpatory evidence as determined above, the district court did not err in finding his request for DNA testing did 

not meet the requirements of § 29-4120(5)(c) and in denying 

Jacob’s motion. This assignment of error is without merit.

Declining to Appoint Counsel

Under the DNA Testing Act, a court shall appoint counsel 

for an indigent person upon a showing that DNA testing may 

be relevant to the person’s claim of wrongful conviction. 34 In 

similar cases where we affirmed findings that the requested 

testing would not produce noncumulative exculpatory evidence, we applied that finding to determine the applicants 

33 See Myers, supra note 5.

34 § 29-4122.
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failed to show the DNA testing was relevant to the wrongful conviction claims. 35 Therefore, for the reasons discussed 

above, Jacob did not make the requisite showing that DNA 

testing may be relevant to his claim of wrongful conviction, 

and thus, the district court did not abuse its discretion in denying his request for appointment of counsel. This assignment of 

error is without merit.

Motion to Alter or Amend

Jacob argues the district court erred in denying his motion 

to alter or amend and in failing to consider the issues he raised 

in his motion. The court rule in the district court for Lancaster 

County, Nebraska, states:

When any motion requiring a hearing is filed, it shall be 

filed with a notice of hearing with a date, time, manner 

of hearing, and certificate of service with the Clerk of the 

District Court (Clerk) not less than 5 days prior to hearing, except by permission of the court. 36

In the instant matter, Jacob’s motion to alter or amend was 

filed without a notice of hearing with a date, time, and manner of hearing. Further, the district court’s order denying the 

motion clearly indicates the motion was deemed abandoned for 

failure to comply with the court’s rules and was denied.

Jacob argues that the court rule does not apply because 

his motion to alter or amend did not require a hearing. We 

have previously recognized that the description of a motion 

to alter or amend in Neb. Rev. Stat. § 25-1329 (Reissue 2016) 

does not include any requirement that the motion be accompanied simultaneously by a notice of hearing before the district court. 37 We have also cautioned that any applicable rules 

concerning motions should be followed. 38 In arguing that his 

35 See, Myers, supra note 5; Dean, supra note 6.

36 Rules of Dist. Ct. of Third Jud. Dist. 3-2(A) (rev. 2019).

37 See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).

38 See Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d 829 (2019).
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motion does not require a hearing, Jacob points out that the 

motion made legal arguments and that he did not offer new 

evidence. His motion asked the court to amend its order to 

require DNA testing.

Assuming, without deciding, that the district court erred 

in deeming the motion to be abandoned, Jacob has not been 

deprived of a substantial right. Contrary to the assertion in 

Jacob’s brief, he has not been deprived of his right to appeal. 

The district court’s ruling, though not on the merits, had the 

effect of denying Jacob’s motion to alter or amend—a motion 

that challenged the correctness of the denial of his motion for 

DNA testing. And as set forth above, we have concluded that 

the district court did not err in denying Jacob’s motion for 

DNA testing.

Bill of Exceptions

Jacob alleges the district court failed to produce and file the 

bill of exceptions he requested. Specifically, Jacob argues that 

had the bill of exceptions been filed, it would have shown that 

upon the State’s request, the district court took judicial notice 

of the entire record of the second trial without receiving it as 

an exhibit.

Our record, however, indicates that the bill of exceptions 

was filed on December 8, 2020. The filed bill of exceptions 

contained the transcript of the two hearings on Jacob’s motion 

for DNA testing and the exhibits offered at those hearings. 

Additionally, the record indicates that the State did not ask the 

court to take judicial notice of the records of Jacob’s previous 

trials, nor did the district court take judicial notice of those 

previous trials.

Despite Jacob’s erroneous arguments, we note that a bill 

of exceptions was prepared for both Jacob’s first and second 

trials and that both bills of exceptions were relied upon by this 

court on Jacob’s earlier appeals. As such, those records remain 

part of this case and remain available for future review. 39 As 

39 See State v. Myers, 301 Neb. 756, 919 N.W.2d 893 (2018).
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a result, Jacob’s praecipe for a bill of exceptions requesting 

preparation of the entire record of the second trial was unnecessary as were his motions for orders of bills of exceptions. 

This assignment of error is without merit.

CONCLUSION

The DNA testing requested by Jacob would not result in 

noncumulative exculpatory evidence relevant to his wrongful 

conviction claim. We therefore affirm the district court’s denial 

of Jacob’s motion for DNA testing, motion for appointment of 

counsel, and motion to alter or amend.

Affirmed.

Heavican, C.J., and Stacy and Freudenberg, JJ., not 

participating.