    Nebraska Advance Sheets
862	290 NEBRASKA REPORTS



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 prosecu-
     tor 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
                           Nebraska Advance Sheets
	                                 STATE v. JOHNSON	863
	                                 Cite as 290 Neb. 862

       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 discrimina-
       tion. 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 pros-
       ecutor 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 appel-
       late court reviews de novo the facial validity of an attorney’s race-neutral expla-
       nation 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 peremp-
       tory 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 suf-
       ficient if the reason is not inherently discriminatory.
 7.	   ____: ____: ____. Whether a prosecutor’s explanation for using a peremp-
       tory 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 per-
       son’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 out-
       weighs 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
    Nebraska Advance Sheets
864	290 NEBRASKA REPORTS


       tendency to make the existence of any fact that is of consequence to the deter-
       mination 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 sub-
       stantially 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 poten-
       tial 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 suffi-
       ciently 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 sig-
       nificance 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 defend­
       ant 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 reason-
       able 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 ren-
       dered, 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.
                        Nebraska Advance Sheets
	                             STATE v. JOHNSON	865
	                             Cite as 290 Neb. 862

  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) admit-
ting evidence of inconclusive DNA testing results; (2) over-
ruling 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 hus-
band, 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).
    Nebraska Advance Sheets
866	290 NEBRASKA REPORTS



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 chil-
dren went to visit April at her duplex. Robert Gray, April’s
nephew, said that Johnson was drinking beer and was unusu-
ally 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 pre-
vious fights between April and Johnson when they had tried
to intervene. A neighbor in the adjacent duplex said that the
                  Nebraska Advance Sheets
	                      STATE v. JOHNSON	867
	                      Cite as 290 Neb. 862

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 build-
ing, 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 posi-
tion. 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 secu-
rity 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 eventu-
ally 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
    Nebraska Advance Sheets
868	290 NEBRASKA REPORTS



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 vehi-
cle, 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 pho-
tographs did not show any injuries. But when they attempted
to scrape his right-hand fingernails, Johnson became confron-
tational 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
                  Nebraska Advance Sheets
	                       STATE v. JOHNSON	869
	                       Cite as 290 Neb. 862

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 chal-
lenged 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 phar-
macy 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 pros-
ecutor 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 strik-
ing her. The court overruled the objection.

         2. Evidence P resented of the Crime Scene
                     and A pril’s I njuries
  The investigators found blood in the main bedroom, bath-
room, 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
    Nebraska Advance Sheets
870	290 NEBRASKA REPORTS



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 indi-
cated 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 scien-
tist 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 admit-
ted, 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 objec-
tion, three photographs of blood found in the duplex. But
Johnson objected to the State’s offer of eight more photo-
graphs of April’s body and the crime scene as cumulative and
                  Nebraska Advance Sheets
	                      STATE v. JOHNSON	871
	                      Cite as 290 Neb. 862

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 investiga-
tors 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 hydro-
codone 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 contribut-
ing cause of multiple drug toxicity.
   The State’s DNA expert testified about her testing of bio-
logical 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
    Nebraska Advance Sheets
872	290 NEBRASKA REPORTS



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 proba-
tive value.
                         IV. ANALYSIS
       1. Johnson Has Not P reserved Error R egarding
            the Court’s A dmission of P hotographs
   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 P rosecutor’s P eremptory Challenge
                  Was Not Based on R ace
  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).
                        Nebraska Advance Sheets
	                              STATE v. JOHNSON	873
	                              Cite as 290 Neb. 862

to remove juror No. 8, the only prospective juror of African-
American 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 phar-
macy where April filled her prescriptions, whether she pos-
sessed 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 permit-
ted 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 prosecu-
tor 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 motiva-
      tion rests with, and never shifts from, the opponent of
      the strike.6
   [4,5] Once a prosecutor has offered a race-neutral explana-
tion for a peremptory challenge and the trial court has decided
the ultimate question of intentional discrimination, the pre-
liminary 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.
    Nebraska Advance Sheets
874	290 NEBRASKA REPORTS



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 determina-
tions whether an attorney’s race-neutral explanation is persua-
sive 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 peremp-
tory 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 peremp-
tory 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.
                        Nebraska Advance Sheets
	                              STATE v. JOHNSON	875
	                              Cite as 290 Neb. 862

   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 state-
ment, 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 pros-
ecutor 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 I nconclusive DNA Testing R esults

                       (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 PCR-
STR 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 indi-
vidual 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 combi-
nation 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 per-
son 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 objec-
tions 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.
                   Nebraska Advance Sheets
	                       STATE v. JOHNSON	877
	                       Cite as 290 Neb. 862

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 conclu-
sion 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 corre-
      spond 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 pos-
sible 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 unaccompa-
nied by any statistical significance. The State contends that
Glazebrook is distinguishable because it dealt with mitochon-
drial 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 evi-
dentiary question at issue to the discretion of the trial court,
we review the admissibility of evidence for an abuse of dis-
cretion.20 A trial court exercises its discretion in determin-
ing 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.
                       Nebraska Advance Sheets
	                            STATE v. JOHNSON	879
	                            Cite as 290 Neb. 862

                           (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 pro-
bativeness 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 perpetra-
tor 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 statisti-
      cal 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 inadmis-
      sible because it would not aid the trier of fact. We have
      specifically held that DNA evidence is inadmissible with-
      out 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 mur-
der 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.
                         Nebraska Advance Sheets
	                              STATE v. JOHNSON	881
	                              Cite as 290 Neb. 862

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 arriv-
ing 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 dis-
tinguishable 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 com-
mon 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 exclu-
sions 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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882	290 NEBRASKA REPORTS



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 rele-
vance 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 defend­
ant’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 opin-
ion 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).
                         Nebraska Advance Sheets
	                              STATE v. JOHNSON	883
	                              Cite as 290 Neb. 862

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 testi-
mony 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 tes-
tify 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 con-
clusion was false.
   It is no answer to argue, as the State does, that the presen-
tation 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 possibil-
ity. More important, the State creates the speculation by intro-
ducing 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 con-
clusion 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 test-
ing 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 R easonable Doubt
   [21,22] An error in admitting or excluding evidence in a
criminal trial, whether of constitutional magnitude or other-
wise, 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 ver-
dict 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 over-
whelming 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.
                   Nebraska Advance Sheets
	                       STATE v. JOHNSON	885
	                       Cite as 290 Neb. 862

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 peremp-
tory 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 statisti-
cal 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 rel-
evant perpetrators.”8
   And as reflected in the majority opinion, evidence that a
person may be included, but not excluded, must be accompa-
nied by testimony explaining the statistical relevance of the
nonexclusion results.9 Without reliable accompanying evi-
dence 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).
                       Nebraska Advance Sheets
	                            STATE v. JOHNSON	887
	                            Cite as 290 Neb. 862

other individuals in a given population, the jury has no way
to evaluate the meaning of the result.10 Admitting such evi-
dence 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 can-
not 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 recov-
ered 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 demon-
strate that tests were performed and results (even if inconclu-
sive) 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.
