                         Nebraska Advance Sheets
	                                 STATE v. YOUNG	749
	                                Cite as 287 Neb. 749

                       CONCLUSION
    For the foregoing reasons, we affirm the judgment of
the district court granting summary judgment in favor of
the defendants.
                                               Affirmed.
   Wright and Stephan, JJ., not participating.



                      State of Nebraska, appellee, v.
                       Antoine D. Young, appellant.
                                    ___ N.W.2d ___

                        Filed March 21, 2014.     No. S-13-557.

 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.	 ____: ____. In an appeal from a proceeding under the DNA Testing Act, the
     trial court’s findings of fact will be upheld unless such findings are clearly
     erroneous.
 3.	 DNA Testing. The DNA Testing Act, passed in 2001, was created to allow
     wrongfully convicted persons an opportunity to establish their innocence through
     DNA testing.
 4.	 ____. A person in custody takes the first step toward obtaining possible relief
     under the DNA Testing Act by filing a motion requesting forensic DNA testing of
     biological material.
 5.	 DNA Testing: Evidence. After a proper motion seeking forensic DNA testing has
     been filed, the State is required by Neb. Rev. Stat. § 29-4120(4) (Reissue 2008)
     to file an inventory of all evidence that was secured by the State or a political
     subdivision in connection with the case.
 6.	 DNA Testing: Collateral Attack. An action under the DNA Testing Act is a col-
     lateral attack on a conviction and is civil in nature.
 7.	 DNA Testing: Proof. The burden of proof under the DNA Testing Act is upon
     the defendant.
 8.	 DNA Testing: Affidavits: Evidence. Under the DNA Testing Act, the defendant
     has the burden to provide the district court with affidavits or evidence at a hear-
     ing establishing the three required factual determinations for the district court
     under Neb. Rev. Stat. § 29-4120(5) (Reissue 2008).
 9.	 DNA Testing: Evidence. Under the DNA Testing Act, DNA evidence which was
     available at trial but not pursued is not considered to have been unavailable.

   Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Affirmed.
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750	287 NEBRASKA REPORTS



  Michael J. Wilson, of Schaefer Shapiro, L.L.P., and Tracy
Hightower-Henne, of Hightower Reff Law, for appellant.

  Jon Bruning, Attorney General, and J. Kirk Brown for
appellee.

  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.

  McCormack, J.
                       NATURE OF CASE
   Antoine D. Young appeals the order of the district court for
Douglas County which denied Young’s motion for DNA test-
ing filed under the DNA Testing Act. The district court deter-
mined that Young had failed to provide sufficient evidence
for the district court to make the three factual determinations
required under Neb. Rev. Stat. § 29-4120(5) (Reissue 2008).
We affirm.

                         BACKGROUND
   On the afternoon of August 25, 2007, Ray S. Webb was
fatally shot in Omaha, Nebraska. Two prosecution witnesses
testified that they observed Young approach Webb’s vehicle
and fire the fatal shots from a handgun. Another prosecution
witness testified that after hearing what he first thought were
fireworks, he turned and saw a bearded man dressed in black
standing at the driver’s side of Webb’s vehicle. Three defense
witnesses testified that they witnessed the shooting and that the
shooter was not Young. Young testified that he was not pres-
ent at the shooting because he spent the afternoon at a fam-
ily gathering.
   During the investigation of the shooting, officers recovered
a long-sleeved, black T-shirt from a grassy area near the shoot-
ing. Officers also found several shell casings. Neither the black
T-shirt nor the shell casings have been DNA tested.
   After a jury trial, Young was convicted of first degree mur-
der and use of a deadly weapon in the commission of a felony.
Young was sentenced to life imprisonment on the murder con-
viction and to 40 to 40 years’ imprisonment on the weapons
                        Nebraska Advance Sheets
	                               STATE v. YOUNG	751
	                              Cite as 287 Neb. 749

conviction, to be served consecutively. We affirmed his con­
victions and sentences on direct appeal.1
    On November 4, 2010, Young filed a pro se motion for DNA
testing and appointment of counsel. On January 10, 2011, he
filed a motion for leave to amend his pro se motion, as well as
an amended motion for DNA testing. Following a telephonic
hearing, the district court denied the motion for DNA testing.
Through counsel, Young appealed, and we remanded with a
mandate that the district court consider the issues raised in
Young’s amended motion.
    In his final amended motion, Young requested that the black
T-shirt be “tested for DNA evidence using mini STR-DNA,
touch DNA and Y-STR DNA testing.” Young asserted that
“[t]he foregoing DNA testing methodologies were not effec-
tively available at the time of [his] trial.” According to the
motion, “[m]ini STR, touch DNA and Y-STR testing methods
allow for DNA testing of extremely small amounts of bio-
logical material and enable conclusive results to be drawn
even from mixed DNA samples.” Young’s motion stated that
the DNA profiles could be uploaded to “CODIS” to find the
real shooter.
    Young also requested that the shell casings be tested. In his
motion, he alleged that a new forensic testing technique called
Cartridge Electrostatic Recovery and Analysis (CERA) can
lift a fingerprint from spent shell casings. The motion alleged
that fingerprints, which result from the deposit of body oils,
are “‘biological materials’” within the meaning of the DNA
Testing Act. According to the motion, this technology is being
developed in England and was not effectively available at the
time of the trial. Young alleged the fingerprints can be used to
find the real shooter.
    At a hearing held on December 13, 2012, Young presented
no evidence. After taking the matter under advisement, the
district court denied the request for DNA testing, because
Young had failed to provide sufficient evidence for the district
court to make the three factual determinations required under
§ 29-4120(5). Young now appeals.

 1	
      State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).
    Nebraska Advance Sheets
752	287 NEBRASKA REPORTS



                 ASSIGNMENT OF ERROR
   Young claims that the district court erred when it denied his
request for DNA testing of the black T-shirt and shell casings
found at the scene of the shooting.

                   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.2 The trial
court’s findings of fact will be upheld unless such findings are
clearly erroneous.3

                            ANALYSIS
   [3] The question presented on appeal is whether Young satis-
fied his evidentiary burdens under the DNA Testing Act. The
DNA Testing Act, passed in 2001, was created to allow wrong-
fully convicted persons an opportunity to establish their inno-
cence through DNA testing.4 The Legislature found that new
forensic DNA testing procedures make it possible to obtain
more informative and accurate results than the earlier DNA
testing could produce.5
   [4] A person in custody takes the first step toward obtaining
possible relief under the DNA Testing Act by filing a motion
requesting forensic DNA testing of biological material.6 Under
§ 29-4120(1), DNA testing is available for any biological mate-
rial 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 con-
trol of others under circumstances likely to safeguard the integ-
rity 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

 2	
      State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010).
 3	
      Id.
 4	
      Neb. Rev. Stat. § 29-4117 (Reissue 2008).
 5	
      Neb. Rev. Stat. § 29-4118 (Reissue 2008).
 6	
      § 29-4120.
                        Nebraska Advance Sheets
	                              STATE v. YOUNG	753
	                             Cite as 287 Neb. 749

provide a reasonable likelihood of more accurate and proba-
tive results.
   [5] After a proper motion seeking forensic DNA testing
has been filed, the State is required by § 29-4120(4) to file
an inventory of all evidence that was secured by the State
or a political subdivision in connection with the case. Then,
“[u]pon consideration of affidavits or after a hearing,” pursuant
to § 29-4120(5), the court “shall” order testing upon a determi-
nation that (1) such testing was effectively not available at the
time of trial, (2) the biological material has been retained under
circumstances likely to safeguard the integrity of its original
physical composition, and (3) such testing may produce non-
cumulative, exculpatory evidence relevant to the claim that the
person was wrongfully convicted or sentenced.
   [6-8] An action under the DNA Testing Act is a collateral
attack on a conviction and is civil in nature.7 Therefore, the
burden of proof is upon the defendant.8 Part of that burden is
to provide the district court with affidavits or evidence at a
hearing establishing the three required factual determinations
for the district court under § 29-4120(5).
   Here, Young was given an opportunity at the December 13,
2012, hearing to provide the district court with evidence con-
cerning the prior availability of the proposed DNA testing and
the ability of the proposed DNA testing to produce relevant
evidence. His failure to present even a modicum of evidence at
the hearing left the district court with little choice but to deny
the motion.
   For the proposed DNA test on the black T-shirt, Young
failed to provide evidence establishing any of the three deter-
minations required under § 29-4120(5). In particular, there
is no evidence that the mini STR-DNA, touch DNA, and
Y-STR DNA testing was effectively unavailable at the time of
Young’s trial. Young argues that DNA testing techniques are
continually evolving and that the requested tests were neces-
sarily not available at Young’s trial. But such an assertion is

 7	
      See State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006).
 8	
      See State v. Malcom, 12 Neb. App. 432, 675 N.W.2d 728 (2004).
    Nebraska Advance Sheets
754	287 NEBRASKA REPORTS



insufficient. At the time of Young’s trial in 2009, DNA testing
was widely available to defendants.9 The DNA tests available
at the time of trial were able to pull biological material from
clothing to isolate a DNA profile.10
    [9] The DNA Testing Act gives inmates access to evolv-
ing scientific technology, but it was not intended to allow an
inmate a second chance to perform DNA testing which was
available at trial.11 Evidence which was available but not pur-
sued is not considered to have been unavailable.12 The district
court did not abuse its discretion in denying the motion for
DNA testing on the black T-shirt, because Young failed to
pre­ent evidence establishing that the mini STR-DNA, touch
     s
DNA, and Y-STR DNA testing was effectively unavailable to
him at the time of his trial in 2009.
    The failure of proof problem also plagues Young’s CERA
testing request for the shell casings. Again, Young failed to
present any evidence. Young asserted in his motion that CERA
testing can lift fingerprints from shell casings and that the
lifted fingerprints are “biological materials” as contemplated
under the DNA Testing Act. To state the obvious, the DNA
Testing Act allows for testing of only DNA.13 There is no evi-
dence that the proposed CERA test is in fact a DNA test. The
amended motion describes it as simply “the ability to ‘lift’ a
fingerprint,” while the State and Young both make opposite
assertions, without evidence, as to whether it is a test for DNA.
Thus, there is no evidence explaining how this new forensic
technique will be able to produce meaningful DNA evidence
in this case. And finally, there is no evidence in the record
that the CERA testing was not effectively available at the time
of trial. The assertion that the test was recently developed is
not enough.

 9	
      See, State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004); State v.
      Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
10	
      See id.
11	
      See State v. Haas, supra note 2.
12	
      Id.
13	
      See § 29-4117.
                  Nebraska Advance Sheets
	                        STATE v. YOUNG	755
	                       Cite as 287 Neb. 749

   For the reasons stated, we hold that the district court did
not abuse its discretion in denying the motion for CERA
testing of the shell casings. Young failed to present evi-
dence establishing that CERA testing was a new DNA test
capable of producing noncumulative, exculpatory evidence
and that the test was effectively unavailable at the time of his
2009 trial.
                       CONCLUSION
  For the reasons stated herein, we affirm the district court’s
denial of Young’s amended motion for DNA testing.
                                                  Affirmed.
