inline"> 185 Argued and submitted October 19, 2017, affirmed December 11, 2019, petition for review denied May 7, 2020 (366 Or 451

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   STEPHEN LEROY NEFSTAD,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                        870331733; A161053

456 P3d 294

Defendant appeals an order denying his motion for a new trial. Defendant
was found guilty of aggravated murder in 1987. Following his conviction, defendant obtained a court order directing police to conduct DNA testing of the jacket
and boots that were used as circumstantial evidence to convict him. According
to defendant, the DNA testing results were “exculpatory” in the sense that they
were “favorable” to his case, and he was therefore entitled to file a motion for a
new trial under ORS 138.696 (2013). The state disagrees, arguing that defendant
misinterprets the term “exculpatory” and that, even under defendant’s definition,
the results did not entitle him to a new trial. Held: The trial court did not err in
denying defendant’s motion for a new trial. Even assuming that “exculpatory”
means that the results are merely “favorable,” the results in this case did not
meet that threshold.
Affirmed.

Julie E. Frantz, Judge.
Lindsey Burrows, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services. Lindsey Burrows and O’Connor Weber
LLC filed the reply brief.
Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Mooney, Judge.*
______________
* Mooney, J., vice Garrett, J. pro tempore.
186 State v. Nefstad

ORTEGA, P. J.
Affirmed.
Cite as

301 Or App 185

 (2019)                                                  187

           ORTEGA, P. J.
         Defendant was found guilty of aggravated murder
in 1987. At his trial, a criminalist for the state testified,
based on chemical tests, that human blood was found on
defendant’s jacket and boots. The jacket was believed to be
the jacket that defendant was wearing when he left a tavern
with the victim. Defendant eventually sought and obtained
a court order directing police to conduct DNA testing of the
jacket and boots with methods that were not used at the
time of the trial. This appeal concerns the results of that
testing. According to defendant, the results were “exculpatory” in the sense that they were “favorable” to his case,
and he was therefore entitled to file a motion for a new trial
under ORS 138.696 (2013).1 The state disagrees, arguing
that defendant misinterprets the term “exculpatory” but
that, even under defendant’s definition, the results did not
entitle him to a new trial. For the reasons explained below,
we agree with the state’s latter argument: Even assuming
that “exculpatory” means that the results are merely “favorable,” the results in this case did not meet that threshold.
We therefore affirm the trial court’s order denying defendant’s motion for a new trial.
                       I. UNDERLYING TRIAL
        We begin by providing the historical facts from the
criminal trial, which are taken from State v. Nefstad,

309 Or 523

789 P2d 1326

(1990), and supplemented with undisputed facts from the record.
“Shortly after midnight on Friday, March 13, 1987,
defendant Stephen Leroy Nefstad and co-defendant Reyes
Miranda drove to the Acropolis Tavern in Portland. There
defendant struck up a conversation with the victim, Steven
A. Jackson. At about 1:45 a.m., Jackson told his companions ‘that he would be right back’ and then stepped outside the tavern with defendant and Miranda. Jackson was
never seen alive again.

1
The statutes governing post-conviction DNA testing were amended in 2015
and 2019. Or Laws 2015, ch 564; Or Laws 2019, ch 368. Because the 2015 amendments did not go into effect until January 1, 2016, all references to the post-conviction DNA statutes are to the version in effect at the time of the trial court’s
ruling in November 2015.
188 State v. Nefstad

“A few miles away from the tavern at 2:37 a.m.,
[co-defendant] Miranda used Jackson’s automatic teller
bank card to withdraw $200 from Jackson’s account.
Sometime during this period, Jackson was brutally murdered by repeated stab wounds to his chest, and his body
was left off of a dead-end street. The front passenger area
of Miranda’s vehicle was covered with blood; Miranda’s
clothes were soaked with blood, and defendant also had
blood on his clothes.

“Defendant stated to his friends that ‘something heavy
had gone down. That they [defendant and Miranda] had
to take this guy out. That he was history.’ Miranda admitted that after the stabbing, his car looked like ‘Psycho III.’
When the police took defendant in for questioning, defendant identified himself as ‘Johnson’ and gave a false dateof-birth. He told the police that ‘he didn’t know anything
about the homicide.’ Defendant told the officers an exculpatory story. The jury, however, found that he and Miranda
had killed Jackson.”

Nefstad,

309 Or at 525

 (second brackets in original).

         During the trial, there was no forensic evidence
connecting defendant to the car or murder. Some weeks
after the murder, the state seized, among other evidence,
defendant’s jean jacket and a pair of boots. A witness testified that defendant was wearing a jean jacket when he was
seen leaving the Acropolis Tavern with Jackson. Nefstad,

309 Or 555 n 20

. At trial, criminalist Beth Carpenter testified that she had identified a “small amount” of what testing
confirmed was human blood on the boots. Carpenter also
testified that there were several areas of what testing confirmed was human blood on the jacket. As relevant to this
appeal, Carpenter testified that one of those locations was
the “outside of the left arm, elbow area.” Carpenter testified
that she was unable to determine through chemical testing
whose blood was on defendant’s jacket or boots. Nefstad,

309 Or at 544

.

        Carpenter also testified that she was unable to
determine, “[f]rom a scientific point of view,” whether the
jacket was in the car at the time of the murder, but she
opined that,
Cite as

301 Or App 185

 (2019)                                 189

   “Assuming that this jacket was in the car when * * * Jackson
   was killed, I believe it was worn by an individual who had
   his arm, his left arm, around the neck of * * * Jackson, possibly and probably in the back seat.”

Id. at 544-45

 (brackets in original).
        Defendant was convicted of aggravated murder and
sentenced to death.

Id. at 525

. The Supreme Court affirmed
the conviction, but it reversed and remanded the case for
resentencing.

Id.

         II. MOTION FOR DNA TESTING AND
               MOTION FOR NEW TRIAL
          To provide context to the parties’ arguments, we
begin by discussing the applicable law. A person who is
incarcerated after a conviction for aggravated murder may
file a motion in the original criminal case requesting DNA
testing of certain evidence obtained at the time of the original prosecution that resulted in the conviction. ORS 138.690;
ORS 138.692. The person filing a motion under ORS 138.690
must also submit an affidavit that includes, among other
information, a statement that the person is “innocent of the
offense for which the person was convicted.” ORS 138.692
(A)(ii). The person requesting the testing “must present a
prima facie showing that the DNA testing of the specified
evidence would, assuming exculpatory results, establish
the actual innocence of the person[.]” ORS 138.692(1)(b). If
the court orders the specified evidence to be tested, ORS
138.696 allows the person to file a motion requesting a new
trial if the court concludes that the DNA results are “exculpatory.” Specifically, ORS 138.696 provides:
      “(1) If DNA (deoxyribonucleic acid) testing ordered
   under ORS 138.692 produces inconclusive evidence or
   evidence that is unfavorable to the person requesting the
   testing:
     “(a) The court shall forward the results to the State
   Board of Parole and Post-Prison Supervision; and
      “(b) The Department of State Police shall compare
   the evidence to DNA evidence from unsolved crimes in the
   Combined DNA Index System.
190                                                         State v. Nefstad

       “(2) If DNA testing ordered under ORS 138.692 produces exculpatory evidence, the person who requested the
    testing may file in the court that ordered the testing a
    motion for a new trial based on newly discovered evidence.”
          Turning back to the facts of this case, on December 11,
2001, the same year that the Oregon legislature passed the
state’s first DNA-post-conviction statute, defendant filed a
motion requesting that certain evidence seized at the time
of his prosecution be tested for DNA. For reasons not related
to this appeal, the hearing on defendant’s motion was not
held until July 2014.2
         At the hearing, defendant requested, as relevant to
this appeal, that the jean jacket and boots that Carpenter
tested at the time of his trial be tested for DNA. In determining whether to grant defendant’s motion and order the DNA
testing, one of the contested issues before the trial court
was the probative value of testing the jacket due to the risk
that the jacket had been contaminated. After defendant’s
trial, his jacket had been stored for over 20 years together
with Miranda’s and Jackson’s bloody clothing. Both parties
agreed that there was a risk of contamination. Ultimately,
the court granted defendant’s motion and ordered the testing of the jacket and boots.3
         Following the results of the DNA testing, the state
filed a “State’s Notice of DNA Testing Results and Motion
for Finding of ‘Unfavorable’ Evidence.” Defendant responded
by filing his objection to the state’s motion and subsequently
filed a motion for a new trial. The court held a hearing on
both motions.
        At this point, we give only a brief summary of the
results because we provide a more detailed account below.
The results from the boots identified the presence of blood in
    2
       For reasons also not relevant to this appeal, defendant ultimately filed a
total of five motions requesting a court order for DNA testing.
    3
       The trial court also ordered the testing of “[a]ny frozen blood swabs” taken
from defendant’s boots. Carpenter had created a liquid extract of blood taken
from defendant’s boot, which had been stored in a freezer following defendant’s
trial. There was no DNA profile obtained from the extract, which defendant concedes on appeal is an inconclusive test result. Because the testing results from
the extract do not form the basis of the issues raised on appeal, we focus our
discussion and analysis only on the testing results from the jacket and boots.
Cite as

301 Or App 185

(2019) 191

several areas. Additionally, DNA from at least two contributors, including defendant, was recovered from the boots.
However, partially due to the low levels of DNA recovered,
no conclusions could be drawn regarding the identity of the
contributors of the DNA. Similarly, the jacket tested positive for the presence of blood in multiple locations. However,
unlike the boots, Jackson’s DNA was located on the jacket.
And, although the testing showed that contamination of the
jacket was possible, evidence was presented that it was more
probable that Jackson’s DNA in one location of the jacket,
the left elbow area, was deposited at the time of the murder
and not the result of contamination.
The trial court issued a written order detailing its
factual findings and legal conclusions, which we also address
in more detail below. The trial court found that the results
from the boots were “inconclusive” because the testing of the
boots “did not generate useable DNA profile results.” The
court also found that, because Jackson’s DNA profile was
located on the jacket, including the left elbow area, which
was “consistent with the state’s theory [that defendant]
wrapped his left arm in that sleeve around the neck of * * *
Jackson to hold him in place while * * * Reyes repeatedly
stabbed * * * Jackson in the front seat,” the results “link
[defendant] to the crime scene” and were not exculpatory.
The court then denied defendant’s motion for a new trial
based on those findings.
III. ANALYSIS
On appeal, defendant argues that the court erred in
concluding that the DNA results were not exculpatory and
in denying his motion for a new trial. Defendant first begins
by arguing that the legislature intended the word “exculpatory” in ORS 138.696 to mean that the DNA results must
be “favorable.” Defendant contends that “ ‘exculpatory’ is a
legal term of art regularly applied to evidence in the context
of Brady v. Maryland,

373 US 83

83 S Ct 1194

10 L Ed 2d 215

 (1963).” And, under Brady, evidence is exculpatory if it
is “favorable to an accused.” Brady,

373 US at 87

. Defendant
argues that the dictionary definition supports that interpretation because it establishes that the plain meaning of “exculpatory” is “ ‘tending to exculpate,’ which, in turn, means ‘to
192 State v. Nefstad

clear from alleged fault or guilt.’ ” (Quoting Webster’s Third
New Int’l Dictionary 794 (unabridged ed 2002) (emphasis in
defendant’s brief)). Lastly, defendant argues that, in assessing whether the results are favorable, the legislative history
supports that the results must be viewed in light of the facts
of the case.
The state disputes defendant’s definition of “exculpatory.” The state argues that “exculpatory” for purposes
of ORS 138.696 requires DNA test results to demonstrate
defendant’s actual innocence. However, the state contends
that, even applying the “favorable” standard, defendant’s
arguments fail because defendant’s arguments are premised on factual assertions that the trial court rejected.
We agree with the state that we need not decide
whether defendant’s definition of “exculpatory” for purposes
of ORS 138.696 is correct because we conclude that, even
applying defendant’s definition, the DNA results from the
boots and the jacket are not favorable—that is, the results
do not tend to exculpate defendant. We discuss the results
from the jacket and the boots, in turn, below.
We review for errors of law the court’s legal conclusion that the DNA results were not “exculpatory” based on
its interpretation of ORS 138.696. See State v. Cadigan,

212 Or App 686, 690

159 P3d 348

, rev den,

343 Or 223

 (2007).
On review for errors of law, a trial court’s findings of fact
are binding on appeal if there is evidence in the record to
support them. Ball v. Gladen,

250 Or 485, 487

443 P2d 621

(1968).
A. DNA Results from the Jacket
         Because Jackson’s DNA was located on the jacket,
we begin there. Defendant’s argument that the results
from the jacket are exculpatory misstates the test results
and incorrectly concludes that they were favorable to him.
Chrystal Bell and Marla Kaplan, forensic scientists with
the Oregon State Police Forensic Services Division, testified at the hearing and explained the testing results. Bell
conducted preliminary testing of the jacket and boots to
determine the presumptive presence of blood. Kaplan subsequently performed the DNA testing. Bell explained that she
Cite as

301 Or App 185

(2019) 193

and Kaplan devised an analytical approach to test the jacket
to account for the risk of contamination. Their approach was
to test the locations of the jacket where Carpenter had previously located blood. Carpenter had cut squares from the
jacket and tested those individual squares for blood. Because
Carpenter’s original cuttings were either lost or destroyed,
Bell tested the areas immediately adjacent to those squares.
Carpenter had tested seven areas of the jacket, and
four of those areas tested positive for the presence of blood
using phenolphthalein, a chemical compound used to detect
blood. Carpenter had created two separate drawings to document her testing from the cuttings, one reflecting the front
of the jacket and the other reflecting the back. Carpenter
indicated that the four areas that had tested positive for
blood were all located on the front of the jacket. On the
back of the jacket, Carpenter noted the two areas that she
had tested were negative. Carpenter also tested the jacket
for the presence of blood using luminol, and the results
returned a void on the back of the jacket, indicating no blood
was detected.
As particularly relevant to this appeal, one of the
areas that Bell tested was the outer edge of Carpenter’s cutting on the left sleeve or elbow. Carpenter noted this area
as “A” on both her front and back sketches. On Carpenter’s
front sketch, she noted that area A returned a positive blood
result. On her back sketch, Carpenter omitted any positive
or negative notation next to A. Bell explained that
“[Area] A * * * on [Carpenter’s] sketches * * * is shown
on both the front and on her sketch on the back. Now, we
know that as a jacket or a shirt is worn, if you lay it down,
there’s a front side and a back side. But as worn, you can
have staining that’s extending onto both areas.”
Bell thus concluded that Carpenter’s notation of area A on
the front and back of her sketches appear to be “an extension of the same stain.” Kaplan agreed with Bell’s conclusion
that area A on the front and back of Carpenter’s sketches
were a “single stain” due to the three-dimensional nature of
the jacket.
Bell took a cutting, labelling it “Ex 1.1,” from the
threaded area where Carpenter’s cutting of area A had
194 State v. Nefstad

been. Bell’s notes indicated that the location of area A and
Ex 1.1 on the jacket was the “back left sleeve.” We provide an
appendix that includes a photo of the front and back of the
jacket taken by Bell.4 Bell testified that she took a cutting
immediately below Carpenter’s cutting, “from an extension
of the hole that * * * Carpenter had originally made.” Ex 1.1
came back presumptively positive for the presence of blood.
Bell also conducted a visual examination of the
jacket to attempt to identify possible blood stains. Bell
observed a “diffuse, light brown” stain in area A, but she
was unable to determine whether the stain was a primary
blood stain or blood deposited in another way, or some other
soiling. Bell could not determine from Carpenter’s notes
whether and the extent to which Carpenter had observed
blood staining.
Kaplan then conducted DNA testing by cutting
pieces from the centers of the cuttings that she had obtained
from Bell. Kaplan explained that she and Bell decided to
actually test the cotton fibers of the jacket for DNA as
opposed to just swabbing the surface because cotton fibers
are absorbent, and the goal was to capture the genetic material from the blood that may have been trapped within the
fibers in 1987.
Kaplan’s testing results from Ex 1.1 revealed the
partial DNA profile of a single person—Jackson. The estimated frequency of the DNA profile is less than 1 in 10 billion in the Caucasian, African American, and Hispanic populations. Kaplan explained that a “partial profile” means
that the DNA is not “fully resolved” at all 32 possible locations in which DNA can be found. Kaplan testified that partial DNA profiles produce interpretable results and are commonly relied on in the field of forensic science.5
4
The photo includes Bell’s notes indicating the areas on the jacket where
Carpenter had tested, including some areas not addressed in this opinion. We
focus only on the results from the jacket that are relevant to this appeal.
5
Jackson’s DNA was also located in two areas on the collar of the jacket.
Carpenter’s drawing noted that blood was detected in two areas on the collar,
areas B and G, in 1987. Bell labelled area B as “Ex 1.2,” and area G as “Ex 1.4.”
For area B, Ex 1.2, Bell was unable to locate exactly where Carpenter sampled
from, so her sample was taken from the “lower collar/placket.” For area G, Ex
1.4, Bell cut from the margin of the hole that Carpenter had previously cut. Both
Cite as

301 Or App 185

 (2019)                                               195

          Kaplan acknowledged that she obtained one-fifth
the optimum level of DNA from Ex 1.1, which is considered
a low-level result, but noted that such levels are “a very routine amount of DNA that is often tested * * * in criminal
cases,” are “not in any way unusual,” and are scientifically
reliable.
         Both Bell and Kaplan acknowledged that contamination—the transfer of DNA from Jackson’s or Miranda’s
clothing to defendant’s jacket—was possible. To assess the
presence and extent of contamination, Bell swabbed the surface of the jacket and then tested the swabs for the presence
of blood. Bell labelled those swabs “Ex 1.5.” As a result of
the swabbing, blood was detected in all of the areas tested,
including those areas where Carpenter had not previously
detected blood. Kaplan subsequently conducted DNA testing of those swabs, and they returned “mixtures of at least
two individuals at a level that was so low that [Kaplan]
was unable to make any conclusive determinations about
the donors of * * * those DNA mixtures.” Kaplan testified
that the mixture of DNA from Ex 1.5 may be the result of
contamination from the commingling of defendant’s clothes
with Jackson’s and Miranda’s clothing.
           Kaplan explained the relative significance of identifying a single profile in Ex 1.1 and a low-level mixture of
DNA in Ex 1.5. She noted that, if Ex 1.1 had returned a
mixture of DNA profiles, she “would have no way to discuss
[it], to contextualize that result because of the known commingling.” Kaplan continued,
       “However, in this instance, because I did obtain just
    that single source DNA profile, I’m * * * left to question * * *

returned partial DNA profiles matching Jackson’s. The estimated frequency of
the DNA profile from a randomly selected individual in these samples was higher
than for the sample in Ex 1.1 (Ex 1.2: 1 in 60.0 million in the Caucasian population, 1 in 1.09 billion in the African American population, and 1 in 755 million
in the Hispanic population; Ex 1.4: 1 in 8,330 in the Caucasian population, 1 in
109,000 in the African American population, and 1 in 43,100 in the Hispanic
population). Kaplan and Bell were not asked to and did not provide an opinion as
to whether the blood located in those areas was more or less likely to have been
deposited in 1987 or the result of contamination. Although the court’s written
order did note the results in Ex 1.4, the court relied most heavily on the results
from Ex 1.1 in its findings. Therefore, because of the court’s primary reliance on
Ex 1.1, and because the results from Ex 1.4 and Ex 1.2 would not affect the outcome in this case, we focus our analysis on the results from Ex 1.1.
196                                          State v. Nefstad

   from a DNA analysis and scientific standpoint, then what
   happened to the DNA—to the blood that [Carpenter] found
   in 1987, because I found no evidence of anyone else’s DNA
   in that same area.”

Kaplan thus concluded that the test results of Ex 1.1 are
“less likely the results of contamination than * * * of * * *
Jackson’s blood” deposited in 1987. For the same reason, Bell
likewise concluded that it is “more probable that the blood
[she] detected and sampled [in Ex 1.1] was blood deposited
in 1987.”
         On appeal, as he did before the trial court, defendant argues that the testing results from the jacket are
exculpatory. He first contends that the testing “revealed the
presence of multiple DNA profiles, which refutes the state’s
trial theory” that the blood on the jacket must have been
Jackson’s. Defendant contests the court’s findings that it was
more probable that the blood on the elbow (Ex 1.1), which
tested positive for Jackson’s DNA, was deposited at the
time of the murder. He argues that “[t]hat conclusion wholly
depends on a single premise: that Bell and Kaplan tested
the same area in which Carpenter originally found blood,”
which defendant contends “is unsupported by the record.”
(Emphasis in original.) He argues that Kaplan and Bell
could not have tested the same area as Carpenter because
the squares Carpenter tested had been lost or destroyed.
         According to defendant, Ex 1.1 “likely revealed
the victim’s DNA in an area where Carpenter originally
obtained a negative result.” (Emphasis in original.) As support for that position, defendant argues that Carpenter’s
cuttings from the back of jacket and the luminol testing all
reveal that there was no blood on the back of the jacket.
Defendant acknowledges that “Area A, from which Ex 1.1
was taken, included portions of both the front and the back
of the jacket,” but concludes that Carpenter only identified
blood on the front of the jacket. And, because Bell’s cutting
came from the back of the jacket, Bell’s cutting did not come
from the same area where Carpenter had detected blood
on the left sleeve. Thus, defendant argues, Jackson’s blood
on the left sleeve is the result of contamination and that,
combined with the results identifying multiple contributors
Cite as

301 Or App 185

 (2019)                              197

elsewhere on the jacket, is favorable because it shows that
the blood on defendant’s jacket may have come from a source
other than Jackson, undermining the state’s trial theory.
          As it did before the trial court, the state disagrees.
The state notes that it is undisputed that Jackson’s blood
was located on the jacket. Further, the state argues, the
trial court found as fact that Jackson’s blood on the backleft sleeve was located in the same area in which Carpenter
had detected human blood in 1987, which linked defendant
to the crime scene, and that defendant’s challenge to that
factual finding ignores our standard of review.
         Refuting defendant’s specific challenges to the
court’s factual findings, the state argues that defendant’s
claim that Bell and Kaplan located Jackson’s blood in a
location that Carpenter had previously determined lacked
human blood is based on defendant’s own interpretation of Carpenter’s handwritten notes to the exclusion of
Carpenter’s testimony and other evidence. The state first
points to Carpenter’s testimony at trial, stating that she
found human blood on the “ ‘outside of the left elbow area.’ ”
The state argues that “[n]othing about that testimony suggests that the human blood on the elbow was confined to
the ‘front’ of the sleeve, as opposed to covering the elbow,
three-dimensionally, front to back.” Further, the state points
to a photo taken by Bell that shows a two-dimensional view
of the back of the jacket and notes that the original hole that
Carpenter cut, as reflected in the photo, is in fact located on
the back of the jacket.
         The state also argues that defendant misunderstands the scientists’ testimony and the trial court’s factual findings regarding the background DNA testing of the
jacket, which identified a mixture of at least two contributors. The background DNA testing, the state contends, represents the extent of potential contamination, explaining,
“[P]laces on the jacket where there is no dispute that blood
did not previously exist, Kaplan and Bell discovered blood
from multiple contributors. Yet, in the exact location where
Carpenter did detect the presence of blood—the left sleeve—
there was only one contributor: the victim.” (Emphasis in
original.) Thus, the state argues, the court’s finding that it
198                                          State v. Nefstad

was more probable that Jackson’s blood was deposited at the
time of the murder is supported by the record and is binding
on appeal. We agree with the state.
         Defendant’s argument that the jacket evidence is
favorable hinges on his theory that Jackson’s DNA that was
located on the left sleeve was a result of contamination and
was not deposited at the time of the murder. As the state
notes, the challenge for defendant is that defendant’s argument is premised on a challenge to the trial court’s factual
findings, which we are bound to follow if any evidence in
the record supports them. Ball,

250 Or at 487

. And, because
there is evidence in the record to support the trial court’s
factual findings, we conclude that the trial court did not err
in finding the results were not exculpatory.
         First, the court found as fact that Bell’s Ex 1.1
cutting came from the same location on the jacket as
Carpenter’s area A—the factual premise underlying Bell
and Kaplan’s conclusions that it was more probable that the
blood on the left sleeve was deposited in 1987. In its written
order, the trial court stated that Bell had taken cuttings
from the “four areas where * * * Carpenter[’s] * * * testing
revealed the presumptive presence of blood,” including the
“back left sleeve.” That finding is supported by the record.
Bell explained that she obtained the cuttings for Ex 1.1 by
cutting immediately below the hole that Carpenter had cut,
which included the threaded area of Carpenter’s hole. Bell’s
cutting of Ex 1.1 was a cutting “from an extension of the hole
that * * * Carpenter had originally made.” The trial court
relied on that testimony in its written order. Additionally,
the two-dimensional photo of the jacket that is provided in
the appendix shows that Carpenter’s cutting was in fact
located on the back of the jacket.
         Defendant contests that factual finding by arguing that Bell’s cutting actually came from an area that
Carpenter either had not tested for blood or which tested
negative based on Carpenter’s omission of a positive or negative note on the two-dimensional sketch that she created of
the back of defendant’s jacket. Although defendant presents
alternative arguments as to how Carpenter’s notes should
be interpreted, our standard of review does not allow us to
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301 Or App 185

 (2019)                                      199

“reweigh the evidence or speculate whether the evidence
might have supported other factual findings than those
made.” Pratt v. Armenakis,

201 Or App 217, 220

118 P3d 821

(2005), rev den,

340 Or 483

 (2006). In light of our standard of
review and the evidence in the record, that factual finding is
supported and binding.
        Second, the trial court also found as fact that it was
more probable that the blood located on the left sleeve of
defendant’s jacket was deposited at the time of the murder
rather than as a consequence of contamination. The trial
court relied on Bell’s and Kaplan’s testimony, explaining
that
       “[R]andom surface swabs were taken from the exterior
   of defendant’s jacket, described as Exhibit 1.5, in which the
   DNA profiles obtained revealed a mixture of at least two
   contributors—deemed not to be inconsistent with the storage of the jacket with decedent’s clothes or the handling of
   the items at trial. In contrast, the cuttings * * * of the cotton
   fibers within the jacket * * * where red stains appeared on
   the surface yielded genetic material * * * consistent with
   [Jackson’s] profile: [Ex] 1.1—the back left sleeve[.] Unlike
   the random swab of the surface of the jacket which revealed
   a mixture of at least two unidentified contributors, the testing of the sleeve * * * yielded only a single source of DNA—a
   partial DNA profile matching that of [Jackson].
      “* * * * *
      “* * * [T]he DNA profile [from the left elbow area] from
   a randomly selected individual matching the partial DNA
   profile is less than 1 in 10 billion in the Caucasian, Africa[n]
   America[n] and Hispanic populations.
        “It is the expert opinion of both * * * Bell and * * * Kaplan
   * * *, while not ruling out the possibility of contamination,
   that it is more probable that the blood revealed from cutting from the left sleeve, Exhibit 1.1. * * *, was deposited at
   the time of the murder.”
The trial court’s order points to the evidence in the record
that supports its finding that it was more probable that the
blood located on the left elbow and that returned Jackson’s
DNA was blood deposited at the time of the murder. Further,
in relying on their testimony, the trial court found Bell and
200                                                         State v. Nefstad

Kaplan to be credible, and defendant does not argue that
the trial court lacked a basis in the record to make that
credibility determination and it is, therefore, also binding
on appeal. Gable v. State of Oregon,

353 Or 750, 762-64

305 P3d 85

, cert den,

571 US 1030

(2013). Because the trial
court’s factual findings are supported by the record, the trial
court did not err in finding that the results from the jacket
were not exculpatory, or favorable, to defendant.6
B. DNA Results from the Boots
We next turn to the boots. In arguing that the
results are exculpatory, defendant similarly misconstrues
the testing results and their effect on his case. In describing
the testing before the trial court, Bell explained that she
tested the boots by visually separating them into sections,
swabbing those sections, and testing the swabs for a chemical reaction with phenolphthalein to indicate the presence
or absence of blood. Bell noted that Carpenter had detected
human blood on the top of the right boot in 1987. Bell’s testing revealed presumptively positive results for blood on both
boots. As relevant to this appeal, on the right boot, the positive results were located in the following areas: toe, medial
side, and lateral side. As also relevant to this appeal, on the
left boot, positive results appeared in the following areas:
lateral side and medial side.
Kaplan explained the DNA testing of the boots by
breaking the results into two categories. The first category
included the testing results from four areas on the left and
right boots (Ex 41.1, 41.2, 41.3, and 41.4). Kaplan explained
that the DNA profiles from those four areas were “all low-level” and that “[t]wo of them appeared to be DNA mixtures
of at least two contributors.” Kaplan concluded:
6
Even assuming that defendant’s theory is correct that Jackson’s DNA on
Ex 1.1 of defendant’s jacket was the result of contamination, we reject defendant’s
argument that the remaining results from the jacket that returned multiple, low-level DNA profiles are somehow favorable to defendant. Given Kaplan’s and Bell’s
testimony, which the trial court credited, that contamination of the jacket after
trial was possible, we do not see how the presence of multiple DNA profiles on
the jacket would be favorable to, or tend to exculpate, defendant. At best, those
results would be inconclusive. In any event, as explained below in the discussion
of the boots, the presence of DNA from multiple contributors of an unknown identity would not be favorable to defendant even considering the factual context of
this case.
Cite as

301 Or App 185

(2019) 201

“So, based on how little DNA was recovered and then
the potential for DNA from multiple individuals to complicate the interpretation, the results from those items are
inconclusive. No comparisons can be made, conclusions can
be drawn based on those four areas of the boot.”
The second category included the results from a
single area, the medial side, on the left boot (Ex 41.5). The
results returned a mixture of “at least two contributors,”
a minor and a major contributor. The major contributor
matches the DNA of defendant. However, for the minor contributor, Kaplan was only able to obtain two pieces of genetic
information out of a potential of 32, which Kaplan concluded
was too low to make any scientifically reliable conclusions
regarding identity. Kaplan explained:
“When it gets to that level, it is in a DNA range where, yes,
there’s absolutely genetic information there; yes, there are
DNA types there. But because I can’t make any assumptions about how many people are there, it’s also in that
range of high risk of false exclusion, high risk of false inclusion. We call it inconclusive. We can’t draw any meaningful
conclusions.”
Kaplan also noted that those two DNA types are
not types held by Jackson, but disputed defendant’s assertion that that result affirmatively excluded Jackson as the
minor contributor. Kaplan explained:
“It’s sort of a scien[tific] distinction, right. There is
information there. There are two DNA types there. That’s
the results. The results [are] also that those two DNA types
are not held by * * * Jackson. That’s another result.
“But the conclusions that can be drawn from that, could
* * * Jackson have contributed DNA or not, we don’t draw
conclusions at that level of DNA because of the risks associated with those types of conclusions at that level.”
Defendant argues that the results from the boots
are exculpatory in a number of ways. In defendant’s view,
because the state asked the jury to draw the inference that
the blood on the boots was Jackson’s, the DNA results would
be exculpatory if the results show that the blood “either
did not belong to Jackson or belonged to somebody else,”
which rebuts the state’s theory at trial. Defendant argues
202 State v. Nefstad

that the evidence establishes both. He first contends that
the evidence affirmatively excludes Jackson as a contributor
because the two DNA types that Kaplan detected from the
minor contributor of the medial side of the left boot are not
DNA types that were also held by Jackson. Alternatively,
defendant argues that, even if the results do not affirmatively exclude Jackson as a contributor, the results from the
boots are exculpatory because there were multiple contributors of DNA on the boots, including defendant’s, and none of
them were identified to be Jackson. Thus, defendant continues, the results are favorable because they “cast[ ] doubt on
the state’s theory” that the blood on the boots was Jackson’s.7
The state responds that the testing from the boots
is not exculpatory, emphasizing that the first four samples
tested yielded a mixture of DNA that was too low to make
any comparisons or conclusions. Addressing Ex 41.5, the
medial side of the left boot, the state argues that the genetic
information of the minor contributor did not affirmatively
exclude Jackson because, as Kaplan testified, the levels of
DNA were too low and thus categorized as inconclusive.
Finally, the state argues that, even if the results could be
viewed as excluding Jackson, the results, in the context of
the case, would still not be exculpatory.8 Again, we agree
with the state.
Kaplan testified that the results from the first category of swabs tested (Ex 41.1, 41.2, 41.3, and 41.4) were
“inconclusive” because of the low-levels of DNA that were
recovered and that she was unable to reach any conclusions
regarding the identity of the DNA contributors. The DNA

7
At oral argument, defendant also asserted that, even if the DNA results
are viewed as inconclusive because they returned no identifiable DNA profile,
the results would still be helpful because they would allow him to argue to the
jury that, even with DNA testing, the state cannot establish that the blood on
the boots belonged to Jackson, which refuted the inference the state asked the
jury to draw at trial. Even if there is some case in which inconclusive evidence
could be considered favorable within the meaning of ORS 138.696—an issue we
do not decide—we do not view the record as supporting a conclusion that the
inconclusive evidence regarding the boots constitutes favorable evidence under
the statute.
8
The state also contends that defendant should be judicially estopped from
arguing that the results were exculpatory and that, if the trial court erred, defendant invited the error. We reject those arguments without discussion.
Cite as

301 Or App 185

(2019) 203

results do not, as defendant alleges, affirmatively exclude
Jackson as the source of the blood on the boots. Because
Kaplan was unable to make any conclusions regarding
identity, the blood on the boots may or may not have been
Jackson’s. In other words, the blood on the boots neither
exculpates nor inculpates defendant—those results are, in
Kaplan’s words, inconclusive.
Moreover, for the second category, Ex 41.5, Kaplan
testified that the DNA profile for the minor contributor was
also “inconclusive” based on how little DNA was recovered.
Kaplan specifically rejected defendant’s argument that the
results from Ex 41.5 affirmatively exclude Jackson as the
contributor because the two pieces of genetic information
that were obtained were not held by Jackson. In its written order, the trial court found as fact that the DNA results
from the boots did not generate useable DNA profiles and
that factual finding is, for all the reasons just explained,
supported by the record and binding on appeal. Therefore,
for the same reasons as previously noted, the results from
the boots are not exculpatory.
For similar reasons, the presence of defendant’s DNA
and multiple unknown contributors on the boots does not, as
defendant argues, undermine the state’s theory at trial that
the blood on the boots was Jackson’s, making the results
favorable. Assuming without deciding that “exculpatory”
for purposes of ORS 138.696 means evidence that would
allow defendant to undermine the state’s theory at trial,
the results in this case do not hold the impeachment value
defendant assigns to them. At the time of trial, Carpenter
could not identify whose blood was on the boots. And today,
because the unknown DNA profiles on the boots may or may
not be Jackson’s, those results—like the blood evidence presented at the time of trial—still cannot be used to identify
whether the blood on the boots is Jackson’s. Thus, even considering the factual context of the case and the inference the
state asked the jury to draw that the blood on the boots was
Jackson’s, the results are not favorable to defendant.
In sum, even applying defendant’s definition of
exculpatory under ORS 138.696, the trial court did not err
in concluding that the results from the boots and jacket were
204 State v. Nefstad

not exculpatory and, thus, did not err in denying defendant’s
motion for a new trial.
Affirmed.
Cite as

301 Or App 185

 (2019)      205

                  APPENDIX—ER 32

Citation profile

How this case has been treated — in progress