State v. Parmar

V. CONCLUSION
The district court erred in addressing the constitutionality of
§§ 77-3442(2)(g) and 79-1073.01, because the issue was not
presented by the pleadings. We have jurisdiction and an obliga-
tion to decide the constitutional questions presented to us, as
they are not merely political questions. The statutory language,
the legislative history, and the record as a whole demonstrate
that a learning community’s common general fund levy under
§ 77-3442(2)(b) serves a predominantly local purpose, not a
state purpose. Because all members of a learning community
receive benefits from the taxes levied and the levy is uniform
throughout the community, no commutation occurs and there
is no violation of the uniformity clause. The judgment of the
district court is therefore reversed, and the cause is remanded
to that court with directions to dismiss.
R eveRsed and Remanded with
diRections to dismiss.
wRight, 	geRRaRd, 	and 	milleR-leRman, 	JJ., 	not
participating.
state of nebRaska , appellee , v.
le Roy J. paRmaR, appellant.
808 N.W.2d 623
Filed February 10, 2012. 	No. S-10-648.
1. Motions to Vacate: Motions for New Trial: DNA Testing: Appeal and Error.
Under the DNA Testing Act, an appellate court will not reverse a trial court’s
order determining a motion to vacate a judgment of conviction or grant a new
trial absent an abuse of the trial court’s discretion.
2. DNA Testing: Appeal and Error. Under the DNA Testing Act, an appellate
court will uphold a trial court’s findings of fact unless such findings are clearly
erroneous.
3. DNA Testing: Legislature: Intent. In enacting the DNA Testing Act, the
Legislature intended to provide (1) an extraordinary remedy—vacation of the
judgment—for the compelling circumstance in which actual innocence is conclu-
sively established by DNA testing and (2) an ordinary remedy—a new trial—for
circumstances in which newly discovered DNA evidence would have, if available
at the former trial, probably produced a substantially different result.
4. Motions to Vacate: DNA Testing: Proof. To warrant an order vacating a judg-
ment of conviction under the DNA Testing Act, the movant must present DNA
STATe v. pArmAr 	247
Cite as 283 Neb. 247
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

testing results that, when considered with the evidence presented at the trial
leading to conviction, show a complete lack of evidence to establish an essential
element of the crime charged.
5. Motions for New Trial: DNA Testing: Proof. To warrant an order for a new trial
under the DNA Testing Act, the movant must present DNA testing results that
probably would have produced a substantially different result if the evidence had
been offered and admitted at the movant’s trial.
6. DNA Testing. postconviction DNA evidence that does not falsify or discredit
evidence that was necessary to prove an essential element of the crime does not
exonerate the movant.
7. DNA Testing: Witnesses. postconviction DNA evidence probably would have
produced a substantially different result at trial if the evidence (1) tends to create
a reasonable doubt about the defendant’s guilt and (2) does not merely impeach
or contradict the key eyewitness’ testimony, but is probative of a factual situation
different from that to which the witness testified.
Appeal from the District Court for Douglas County: J Russell
deRR, Judge. reversed and remanded for a new trial.
James r. mowbray and robert W. Kortus, of Nebraska
Commission on public Advocacy, for appellant.
Jon Bruning, Attorney General, and George r. Love for
appellee.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
connolly, J.
I. SUmmArY
The appellant, Leroy J. parmar, appeals from the district
court’s order that overruled his motion to vacate his convic-
tion or receive a new trial. parmar brought his motion under
the DNA Testing Act.1 He based his motion on DNA testing of
blood samples found on a bedsheet at the murder scene. The
court determined that the DNA evidence was inconclusive and
did not exonerate parmar or show a complete lack of evidence
to establish an essential element of the crime. It also denied a
new trial because the evidence would not have produced a sub-
stantially different result.
1 Neb. rev. Stat. §§ 29-4116 to 29-4125 (reissue 2008).
248 	283 NeBrASKA repOrTS

We reverse. We agree that the DNA evidence did not exoner-
ate parmar of guilt. But the DNA evidence excluded parmar’s
DNA from a crucial piece of evidence and contradicted eyewit-
ness testimony crucial to the State’s conviction. Thus, we con-
clude that the DNA evidence probably would have produced a
substantially different result if it had been available at trial. We
remand the cause with directions for the court to grant parmar
a new trial.
II. BACKGrOUND
We note that the Legislature amended the DNA Testing Act
since parmar filed his motion for testing. But because none of
the amendments are relevant, we refer only to the current stat-
utes for convenience.
1. dna testing act
Under § 29-4120, a convicted person in custody may request
DNA testing of biological material that was related to the
investigation or prosecution that resulted in the judgment.
If the court authorizes testing, then under § 29-4123(2), any
party may request a hearing when the DNA testing exoner-
ates or exculpates the person in custody. If the court finds that
the testing exonerates or exculpates the person, § 29-4123(2)
authorizes the court to vacate the judgment and release the per-
son. If the court does not vacate the judgment and release the
person, then § 29-4123(3) permits any party to file a motion
for a new trial under Neb. rev. Stat. §§ 29-2101 to 29-2103
(reissue 2008).
Section 29-2101 permits a defendant to apply for a new
trial for specified reasons that materially affect the defend-
ant’s substantial rights. Under § 29-2101(6), a defendant may
seek a new trial for “newly discovered exculpatory DNA or
similar forensic testing evidence obtained under the DNA
Testing Act.”
2. undeRlying facts fRom
paRmaR’s diRect appeal
A jury convicted parmar of first degree murder for the 1987
killing of Frederick Cox, and the court sentenced him to a
term of life imprisonment. In 1989, we affirmed his conviction
STATe v. pArmAr 	249
Cite as 283 Neb. 247

in State v. Parmar (Parmar I).2 He later filed postconviction
motions, which involved issues that are unrelated to this pro-
ceeding.3 In deciding parmar’s motion for vacation of judgment
or a new trial, the district court relied on the facts in Parmar I.
Because the trial record is not part of the record for this pro-
ceeding, we also summarize the facts from his 1989 direct
appeal.
parmar lived with Lanetta Harrington in the same apartment
complex as Cox. Lanetta’s sister, Joyce Harrington, also lived
in the complex, in an apartment that she shared with Truman
Stevenson and michelle Carrigan.
Cox told several people that he had received a $1,000 prop-
erty settlement from his ex-wife. The day before he was found
dead, Cox was out drinking with friends and returned home
around 4:10 p.m. He continued to celebrate his good fortune
with people in his apartment. Carrigan and Lanetta were in his
apartment between 5 and 6 p.m. After Lanetta left, Carrigan
performed a sexual act with Cox. Cox paid her with cash from
underneath his mattress, and Carrigan saw that he had a large
sum of cash.
Carrigan reported this information to Stevenson, Joyce, and
Lanetta. Later that evening, parmar also learned about the
cash. parmar, Lanetta, and Carrigan devised a plan to rob Cox.
Carrigan was to knock on Cox’s door, and after he answered,
parmar and Lanetta would push Carrigan into Cox, tie Cox up,
and take his money. When Carrigan later went to parmar and
Lanetta’s apartment, Carrigan saw them with some extension
cord, rope, and pieces of cutoff panty hose. parmar, Lanetta, and
Carrigan carried out their plan at 2 a.m. As parmar and Lanetta
wrestled with Cox, another woman, Valerie Washington, came
out of the bedroom. Washington testified that she recognized
parmar and Lanetta despite the panty hose over their faces and
that parmar “‘pounded Fred Cox on the coffee table and to the
2 State v. Parmar, 231 Neb. 687, 437 N.W.2d 503 (1989), overruled on other
grounds, State v. Edmonson, 257 Neb. 468, 598 N.W.2d 450 (1999).
3 See, State v. Parmar, 263 Neb. 213, 639 N.W.2d 105 (2002); State v.
Parmar, 249 Neb. 462, 544 N.W.2d 102 (1996).
250 	283 NeBrASKA repOrTS

ground.’”4 Washington and Carrigan left Cox’s apartment, but
Carrigan later returned. She testified that she went into the bed-
room and saw Lanetta tying Cox’s legs and parmar “‘down by
the top of mr. Cox’ but the bed obstructed her view.”5
Cox’s friend came the next morning to pick him up for
work, but there was no answer when he knocked on Cox’s
door. Later that day, he and another friend entered Cox’s apart-
ment because Cox still had not responded to knocks. They dis-
covered his body by the bed. There was evidence of a struggle,
and Cox was face down on the carpet, wedged between the
bed and the wall. His arms and ankles were bound. An autopsy
revealed that he died of positional asphyxiation; i.e., because
he was intoxicated and bound face down in a confined area, he
was unable to move so that he could breathe.
At trial, both Carrigan and Washington testified that parmar
had physically assaulted Cox and was the only male pres-
ent when Cox was robbed and killed. The State also charged
Carrigan with first degree murder for Cox’s death; Washington
was an independent witness.6
3. paRmaR obtains couRt oRdeR
foR dna testing
In 2005, parmar moved to have DNA testing performed on
evidence used at trial. At the same time, he petitioned for an
inventory of the trial evidence. Shortly afterward, a deputy
county attorney for Douglas County submitted the Omaha
police Department’s property reports as an inventory. One
listed item was a sheet from the middle of Cox’s bed. The
police also found two other sheets inside the bedroom door and
a sheet and pillow in the front room. All of these items had
probable bloodstains.
In 2008, the court ordered the clerk of the Douglas County
District Court to inventory the evidence in its possession and
release all the trial exhibits to the University of Nebraska
medical Center for DNA testing. At the hearing on the motion,
4 Parmar I, supra note 2, 231 Neb. at 690, 437 N.W.2d at 506.
5 Id.
6 See Parmar I, supra note 2.
STATe v. pArmAr 	251
Cite as 283 Neb. 247

the court admitted an affidavit from the court reporter stating
that although she had diligently searched for the trial evidence,
she had found only one of two boxes containing the evidence.
The box that the court reporter found contained two sheets.
4. dna testing R esults
In 2009, the medical center’s Human DNA Identification
Laboratory issued a report on its DNA testing. The labora-
tory tested the two sheets that the court reporter had found. Its
report referenced the evidence numbers used for these items
in the police property reports. Those numbers indicate that
the laboratory tested the sheet found in the front room and the
sheet found on Cox’s bed. Stains on those sheets tested positive
for the presence of blood, and the laboratory analyzed them for
DNA profiles of any contributors to the samples.
In sum, the laboratory’s analysis of the DNA samples from
the sheet found in the front room produced a partial DNA pro-
file but was inconclusive about the profile of any contributors to
the samples. But its analysis of six bloodstains found on Cox’s
bedsheet excluded parmar as a contributor to the DNA found in
those samples. Two of the six samples contained mixed DNA
from two male contributors, but the analysis excluded parmar
as a contributor. For one of the mixed male samples, the analy-
sis produced a major and minor contributor profile. The major
profile matched Cox’s profile, so the analysis did not exclude
Cox as a contributor. But the analysis excluded parmar as the
minor contributor.
In his motion requesting the court to vacate his conviction or
grant him a new trial, parmar relied on the testing results of the
DNA samples found on the sheet from Cox’s bed. At the hear-
ing, parmar also submitted an affidavit from an investigator
for the Nebraska Commission on public Advocacy. The inves-
tigator stated that in 2006, a detective from the Omaha police
Department called him with the results of the department’s
search for evidence from parmar’s case. The detective informed
him that a county attorney had checked out some of the evi-
dence and did not return it. The investigator did not state the
date that the county attorney had checked out the evidence.
252 	283 NeBrASKA repOrTS

5. couRt’s oRdeR
In overruling parmar’s motion, the court concluded that
parmar was not entitled to have his conviction vacated because
the DNA testing did not conclusively establish his innocence.
The court stated that the test results showed only that one
sample contained Cox’s DNA mixed with the DNA from an
unidentified male. Because it was unknown when the uniden-
tified male’s DNA was deposited in the sample, the court
concluded that it was purely speculative whether the uniden-
tified male was present during the crime and responsible for
the murder.
The court also denied parmar’s motion for a new trial. The
court noted that two eyewitnesses at the crime scene testified
to parmar’s involvement and presence, and that circumstantial
evidence connected him to the crime. It concluded that because
of the eyewitness testimony and circumstantial evidence, the
DNA evidence was not of such a nature that if parmar had
offered it at trial, it probably would not have produced a sub-
stantially different result.
Finally, the court noted that parmar had argued that he was
entitled to a new trial because of the missing evidence. The
court concluded that parmar’s due process rights had not been
violated by the court’s loss of the evidence absent a showing of
the State’s bad faith.
III. ASSIGNmeNTS OF errOr
parmar assigns that the district court erred as follows:
(1) failing to conclude that the DNA testing exonerated him
within the meaning of the DNA Testing Act;
(2) failing to conclude that he was entitled to a new trial
under the DNA Testing Act;
(3) concluding that the DNA evidence would not have pro-
duced a different result if it had been admitted at trial;
(4) failing to grant a new trial because the court had failed
to preserve and make available evidence committed to its cus-
tody; and
(5) applying a “bad faith” standard to the court’s failure to
preserve evidence entrusted to it.
STATe v. pArmAr 	253
Cite as 283 Neb. 247

IV. STANDArD OF reVIeW
[1,2] Under the DNA Testing Act, an appellate court will
not reverse a trial court’s order determining a motion to vacate
a judgment of conviction or grant a new trial absent an abuse
of the trial court’s discretion.7 Under the DNA Testing Act, an
appellate court will uphold a trial court’s findings of fact unless
such findings are clearly erroneous.8
V. ANALYSIS
1. paRties’ contentions
parmar contends that the DNA evidence discredits and con-
tradicts the eyewitnesses’ testimony at his trial. He claims that
the State’s theory and presentation of the trial evidence cannot
be reconciled with DNA evidence that an unidentified male
participated in the crime. The State contends that the DNA test-
ing results do not warrant vacation of parmar’s conviction or a
new trial because overwhelming non-DNA evidence supported
his conviction. It argues that there was not a complete failure
of evidence to support his conviction. And the State argues that
a jury would have convicted parmar even if it had known at his
trial that an unknown male had donated a DNA specimen at an
unknown time.
2. movant’s buRden of pRoduction
[3] 	In 	enacting 	the 	DNA 	Testing Act, 	the 	Legislature
intended to provide (1) an extraordinary remedy—vacation
of the judgment—for the compelling circumstance in which
actual innocence is conclusively established by DNA testing
and (2) an ordinary remedy—a new trial—for circumstances in
which newly discovered DNA evidence would have, if avail-
able at the former trial, probably produced a substantially dif-
ferent result.9
[4,5] Thus, to warrant an order vacating a judgment of con-
viction under the DNA Testing Act, the movant must present
7 See, State v. Pratt, 277 Neb. 887, 766 N.W.2d 111 (2009); State v.
El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
8 See State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
9 See State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
254 	283 NeBrASKA repOrTS

DNA testing results that, when considered with the evidence
presented at the trial leading to conviction, show a complete
lack of evidence to establish an essential element of the crime
charged.10 But to warrant an order for a new trial under the
DNA Testing Act, the movant must present DNA testing results
that probably would have produced a substantially different
result if the evidence had been offered and admitted at the
movant’s trial.11
3. analysis
(a) motion to Vacate Judgment
[6] As noted, the court ruled that parmar was not entitled
to have his judgment vacated because the DNA testing did not
conclusively establish his innocence. DNA evidence is usually
relevant to a defendant’s identity as the perpetrator. For some
crimes, DNA testing that was not available at trial could poten-
tially exonerate a person of the crime.12 But postconviction
DNA evidence that does not falsify or discredit evidence that
was necessary to prove an essential element of the crime does
not exonerate the movant.13
For example, in State v. Buckman,14 the police seized some
of Herman Buckman’s clothing articles with blood samples
during the original murder investigation. Before his 1989 trial,
a state expert had consumed all or most of the blood samples
from these articles. She concluded that the blood could have
come from the victim but not Buckman. Later, the postconvic-
tion DNA testing failed to detect the presence of blood on the
clothing articles or failed to produce a DNA profile. But these
results were not inconsistent with other evidence of guilt pro-
duced at trial.
Similarly, another trial expert in Buckman had tested two cig-
arette butts found in the victim’s car. He testified that Buckman
10 See Pratt, supra note 7.
11 See id.
12 See, generally, 6 Wayne r. LaFave et al., Criminal procedure § 24.11(d)
(3d ed. 2007).
13 See Buckman, supra note 9.
14 Id.
STATe v. pArmAr 	255
Cite as 283 Neb. 247

could not be excluded as a contributor of the genetic material
found in either of the cigarettes. The brands were known, and
one cigarette was a brand that Buckman was known to smoke.
The expert testified that if only one person smoked Buckman’s
preferred cigarette, other suspects were excluded as contribu-
tors to the genetic material. But the trial evidence was not
properly stored. The cigarettes from the victim’s car were com-
mingled in the same bag with the control-group cigarettes, and
the brand for the cigarettes was no longer recognizable when
postconviction testing was performed.
The postconviction DNA testing showed only inconclusive,
partial DNA profiles for the material from two cigarette butts
and no DNA profiles for the others. One of the profiles con-
tained genetic material from more than one individual. The
expert’s final determination was that the results were incon-
clusive whether Buckman had been a contributor to the DNA
sample in one of the tested cigarettes. In short, the inconclusive
postconviction results did not exonerate Buckman of guilt or
require a new trial.
Similarly, in State v. Pratt,15 Juneal pratt had been convicted
of sodomy, rape, and robbery in 1975. postconviction DNA
testing of the victims’ clothing articles did not conclusively
exclude pratt as a contributor to the DNA samples found in
stains on the victims’ shirts. None of the stains were found to
be presumptively from semen. An analyst testified that pratt
was excluded as a contributor to one of the stains if it was not a
mixture of DNA from more than one individual. But the results
were inconclusive whether the sample was mixed. The testing
of another stain was inconclusive as to how many males con-
tributed DNA to the sample, but at least one male contributor
was not pratt. The testing did not exclude pratt as a contributor
to other mixed samples on one shirt.
Because the testing did not conclusively exclude pratt as a
contributor to the DNA samples, we held that the results were
neither exonerating nor exculpating. We further held that the
court was not clearly wrong in finding that the DNA material
from another male could have been deposited on the clothing
15 Pratt, supra note 7.
256 	283 NeBrASKA repOrTS

articles because of improper handling or improper storage
of the evidence. In contrast, the victims’ trial testimony had
strongly identified pratt as the perpetrator.
These 	cases 	illustrate 	that 	postconviction 	DNA 	testing
results that are not incompatible with trial evidence of the
movant’s guilt fail to exonerate the movant of guilt. In overrul-
ing parmar’s motion to vacate the judgment, the court reasoned
that because it was unknown when the unidentified male’s
DNA was deposited in the sample, concluding that another
male was present during the crime was too speculative. But we
believe that this reasoning is properly directed to whether the
evidence was sufficiently exculpatory to warrant a new trial. So
we do not address it here. We agree with the court, however,
that the DNA testing results did not exonerate parmar.
It is true that the presence of an unidentified male’s DNA
commingled with the victim’s DNA calls into question the
State’s evidence that parmar was the sole assailant. But it does
not prove that parmar did not participate in the crime. parmar
could have participated without leaving DNA evidence at the
scene. So we conclude that the trial court did not abuse its
discretion in denying parmar’s motion to vacate the judgment
and release him.
(b) motion for New Trial
As explained earlier, to warrant an order for a new trial
under the DNA Testing Act, the movant must present DNA
testing results that probably would have produced a substan-
tially different result if the evidence had been offered and
admitted at the movant’s trial. relying on our decision in State
v. El-Tabech,16 the court reasoned that a single DNA speci-
men that belongs to neither the defendant nor the victim is not
exculpatory evidence that would have produced a substantially
different result at trial. parmar argues that El-Tabech is distin-
guishable; the State contends that El-Tabech is controlling.
The State convicted mohamed el-Tabech of murdering his
wife by strangling her with a cloth bathrobe belt. A tuft of hair
was found in a knot tied in the belt. A state expert testified at
16 El-Tabech, supra note 7.
STATe v. pArmAr 	257
Cite as 283 Neb. 247

trial that seven hairs found in the tuft were consistent with the
victim’s hair. But she testified that another hair that had fallen
from the belt did not belong to the victim or el-Tabech. In
contrast, the postconviction DNA testing showed that the hair
that had fallen from the belt belonged to el-Tabech but that one
of the hairs in the knot belonged to neither el-Tabech nor the
victim. The district court concluded that because the unidenti-
fied hair was bound in the knot, it had been present before the
murder and was insignificant evidence of guilt.
On appeal, we stated that although the unidentified hair
was a different hair than the one the state expert had testified
about at trial, the jury had nonetheless been presented with evi-
dence that a hair belonging to neither the victim nor el-Tabech
was found at the scene. Because of other trial evidence of
el-Tabech’s guilt, we concluded that it could not be said that
the testing results probably would have produced a substan-
tially different result.
But the postconviction DNA testing in parmar’s case pro-
duced results that are distinguishable from the results in
El-Tabech and our other cases in two crucial respects. First, the
testing results here completely excluded parmar as a contribu-
tor to the DNA samples found on Cox’s sheet and established
the presence of an unidentified male’s DNA. Second, the results
were contrary to the testimonies of two key eyewitnesses
against parmar. We have previously addressed the significance
of similar DNA evidence in a case deciding whether a district
court should have ordered DNA testing. Our reasoning in that
case is applicable here.
In State v. White,17 Joseph White had been convicted of first
degree murder for his role in a 1985 robbery, rape, and mur-
der of a 68-year-old woman. An alleged accomplice, Thomas
Winslow, and four other alleged participants pleaded no contest
or guilty to lesser crimes. Three witnesses testified that White
and Winslow sexually assaulted the victim. One of these wit-
nesses allegedly suffocated the victim with a pillow. A witness
testified that White was present during the crime.
17 State v. White, 274 Neb. 419, 740 N.W.2d 801 (2007).
258 	283 NeBrASKA repOrTS

In 2006, the district court denied White’s motion for DNA
testing, concluding that even if the testing showed that the
biological samples did not belong to White, it would not
compel the conclusion that White was not present. The court
reasoned that White could have been convicted as a participant
in the felony robbery even if he had not sexually assaulted
the victim. The court determined that evidence showing that
the semen samples did not belong to White would not have
precluded the jury from finding him guilty of murder based on
other evidence.
We 	reversed 	the 	court’s 	denial 	of White’s 	request 	for
DNA testing.18
The heart of the State’s case was the testimony of
White’s codefendants, . . . who each testified that they
saw only White and Winslow sexually assault Wilson.
We agree with White that if DNA testing showed that the
semen samples belonged to neither White nor Winslow,
such evidence would raise questions regarding the iden-
tity of the person or persons who actually contributed to
the sample and who presumably committed the assault.
Such a favorable test result could cause jurors to question
the credibility of [the three codefendants.] evidence that
contradicted such witnesses’ testimony that White and
Winslow carried out the sexual assault could cause jurors
to question their testimony regarding other matters. . . .
. . . DNA test results that excluded both White and
Winslow could raise serious doubts regarding the testi-
mony of the main witnesses against White. Although there
was other evidence regarding White’s presence at the
crime scene and his involvement in planning the crime,
the testimonies of [the three codefendants] were critical to
the State’s case against White resulting in White’s convic-
tion for first degree murder.19
In White, we also rejected the district court’s reasoning
that even if the testing results would exclude White as a con-
tributor to the DNA samples, the evidence would be cumulative
18 See, also, State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007).
19 White, supra note 17, 274 Neb. at 425, 740 N.W.2d at 806.
STATe v. pArmAr 	259
Cite as 283 Neb. 247

because the trial evidence failed to show that the semen
samples belonged to White. We stated that a difference exists
“between forensic evidence that fails to identify a person and
DNA evidence that excludes the person.”20 We remanded the
cause to the district court to determine whether the biological
material had been retained under circumstances likely to safe-
guard its integrity.
[7] Other courts have similarly reasoned that DNA evidence
warrants a new trial when it compromises key evidence that
the prosecutor used against the defendant at trial.21 As relevant
here, we hold that postconviction DNA evidence probably
would have produced a substantially different result at trial
if the evidence (1) tends to create a reasonable doubt about
the defendant’s guilt and (2) “does not merely impeach or
contradict [the key eyewitness’] testimony, but is probative
of a factual situation different from that to which [the wit-
ness] testified.”22
Like the conviction in White, the State’s conviction of
parmar depended heavily upon the testimony of two eyewit-
nesses, one of whom was an accomplice. And the State’s
theory of the crime, as presented through these eyewitnesses,
was that only parmar assaulted Cox and that the only other
participants in the crime were two women. Carrigan testified to
seeing parmar “‘down by the top of mr. Cox.’”23 But the post-
conviction DNA testing results are clearly incompatible with
the eyewitnesses’ testimonies.
To recap, the testing showed that Cox’s bedsheet had blood
samples with DNA that matched Cox’s DNA profile, indicating
that he was on the bed at some point before his death. But the
20 Id. at 426, 740 N.W.2d at 806.
21 See, Arrington v. State, 411 md. 524, 983 A.2d 1071 (2009); People v.
Waters, 328 Ill. App. 3d 117, 764 N.e.2d 1194, 262 Ill. Dec. 77 (2002).
Compare, State v. Peterson, 364 N.J. Super. 387, 836 A.2d 821 (App. Div.
2003); People v. Wise, 194 misc. 2d 481, 752 N.Y.S.2d 837 (N.Y. Sup.
2002).
22 Waters, supra note 21, 328 Ill. App. 3d at 129, 764 N.e.2d at 1204, 262 Ill.
Dec. at 87.
23 Parmar I, supra note 2, 231 Neb. at 690, 437 N.W.2d at 506.
260 	283 NeBrASKA repOrTS

testing conclusively excluded parmar as one of the male con-
tributors to the mixed DNA found in two of those bloodstains.
One of those mixed DNA bloodstains produced major and
minor contributor profiles—and parmar was neither contribu-
tor. These results are distinguishable from the test results in
Pratt, which were inconclusive about the individual contribu-
tors’ profiles.
So while the results did not exonerate parmar, unlike our
earlier cases, his DNA testing results tend to create a reason-
able doubt that he was a participant. It is true that we cannot
know with absolute certainty that the unidentified male’s DNA
was deposited on Cox’s bedsheet when Cox was murdered.
But the district court erred in reasoning that the presence of
another male at the murder was too speculative to warrant a
new trial.
Obviously, if the other male was not present at the murder,
then his DNA was deposited on Cox’s bedsheet before or after
the murder. But the evidence at the hearing on parmar’s motion
for vacation of judgment or a new trial did not support a find-
ing that the other male’s DNA was deposited on the sheet after
the murder.
Unlike the facts presented in Pratt, the court reporter’s
affidavit stated that the trial evidence she found in a box was
stored in separate bags. And no expert testified that improper
handling of the evidence could have accounted for the lab-
oratory’s finding enough DNA from an unidentified male
contributor to produce a separate minor contributor profile.
“As a rule, a minor contributor to a mixture must provide
at least 5% of the DNA for the mixture to be recognized.”24
Without expert testimony showing how a handler’s DNA could
have contaminated the sample to such a high percentage, we
must assume that both contributors had left their DNA on
the sheet before the evidence was gathered. So we conclude
that the evidence at the hearing did not support a finding that
24 David H. Kaye & George F. Sensabaugh, Jr., Reference Guide on DNA
Evidence, in reference manual on Scientific evidence 485, 508 (Federal
Judicial Center 2d ed. 2000).
STATe v. pArmAr 	261
Cite as 283 Neb. 247

the other male’s DNA was deposited on the sheet because of
improper handling.
Conversely, concluding that the other male could have
deposited DNA on Cox’s bedsheet before the murder in
exactly the same spots where Cox’s blood would later be
found after he was murdered is more speculative than con-
cluding that another male was present during the crime. Such
a finding depends upon improbable coincidences. This is par-
ticularly true when the police found evidence of a struggle and
items with probable bloodstains in both the front room and
the bedroom.
In short, the DNA testing results here tend to create a
reasonable doubt about parmar’s guilt and were probative
of a factual situation different from that testified to by the
State’s two eyewitnesses against him. Both of these witnesses
testified that parmar was the only male present and the only
person who physically assaulted Cox. Had parmar presented
DNA evidence showing that two males contributed their
DNA to the bloodstains found on Cox’s bedsheet and that
neither of those males was parmar, the jurors certainly would
have questioned the factual account presented by the State’s
eyewitnesses.
moreover, even if evidence excluding parmar as a con-
tributor to the bloodstains cannot prove that the witnesses’
testimonies were false, it certainly makes their version of the
facts less probable.25 Our standard for evidence warranting
a new trial does not require a movant to show that the DNA
testing results undoubtedly would have produced an acquittal
at trial.
We conclude that because the testimonies of the State’s
eyewitnesses were the key evidence against parmar at trial,
DNA testing results that were probative of a factual situation
contrary to the eyewitnesses’ version of the facts and tended
to create a reasonable doubt about parmar’s guilt probably
would have produced a substantially different result if the
results had been available at trial. We therefore reverse the
25 See People v. Dodds, 344 Ill. App. 3d 513, 801 N.e.2d 63, 279 Ill. Dec.
771 (2003).
262 	283 NeBrASKA repOrTS

district court’s order and remand the cause with directions to
the district court to grant parmar a new trial. Because we have
instructed the court to grant parmar a new trial, we do not
address his argument that the State’s loss of evidence warrants
a new trial.
R eveRsed and Remanded foR a new tRial .
geRRaRd, J., not participating in the decision.
wRight, J., not participating.
HerITAGe BANK v. BrUHA 	263
Cite as 283 Neb. 263
heRitage bank , a state banking coRpoRation, appellee ,
v. JeRome J. bRuha , defendant and thiRd -paRty
plaintiff, appellant, and pRime tRading
company, inc., et al ., thiRd -paRty
defendants , appellees.
812 N.W.2d 260
Filed February 10, 2012. 	No. S-10-1219.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable inferences deducible
from the evidence.
3. Uniform Commercial Code: Interest. Although the Uniform Commercial Code
allows notes to have a variable interest rate, under Neb. U.C.C. § 3-104(a) (Cum.
Supp. 2010), the principal amount must be fixed.
4. Promissory Notes: Negotiable Instruments. A fixed principal amount is an
absolute requisite to negotiability.
5. ____: ____. To meet the fixed principal amount requirement, the fixed amount
generally must be determinable by reference to the instrument itself without any
reference to any outside source. If reference to a separate instrument or extrinsic
facts is needed to ascertain the principal due, the sum is not “certain” or fixed.
6. ____: ____. A note given to secure a line of credit under which the amount of the
obligation varies, depending on the extent to which the line of credit is used, is
not negotiable.
7. Negotiable Instruments. For a person to be a holder in due course, the instru-
ment must be negotiable.
8. Contracts: Fraud. Fraud in the execution goes to the very existence of the
contract, such as where a contract is misread to a party or where one paper is