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05/04/2018 08:09 AM CDT




                                                       - 775 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                        STATE v. BETANCOURT-GARCIA
                                              Cite as 299 Neb. 775




                                     State of Nebraska, appellee, v.
                                  Rosario Betancourt-Garcia, appellant.
                                                  ___ N.W.2d ___

                                        Filed April 26, 2018.    No. S-17-690.

                1.	 DNA Testing: Appeal and Error. A motion for DNA testing is addressed
                    to the discretion of the trial court, and unless an abuse of discretion is
                    shown, the trial court’s determination will not be disturbed.
                2.	 `____: ____. An appellate court will uphold a trial court’s findings
                    of fact related to a motion for DNA testing unless such findings are
                    clearly erroneous.
                3.	 DNA Testing. The DNA Testing Act is a limited remedy providing
                    inmates an opportunity to obtain DNA testing in order to establish inno-
                    cence after a conviction.
                4.	 ____. Under Neb. Rev. Stat. § 29-4120(1)(b) (Reissue 2016), biologi-
                    cal material does not fall within the purview of the DNA Testing Act
                    unless it is in the actual or constructive possession or control of the State
                    or others.
                5.	 Constitutional Law: DNA Testing. A constitutional challenge to the
                    destruction of evidence is outside the purview of the DNA Testing Act.

                 Appeal from the District Court for Madison County: M ark
               A. Johnson, Judge. Affirmed.
                Danielle L. Myers-Noelle, of Jewell & Collins, and Brad J.
               Montag, of Egley, Fullner, Montag & Hockabout, for appellant.
                  Douglas J. Peterson, Attorney General, and Austin N. Relph
               for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ.,
               and Moore, Chief Judge, and A rterburn, Judge, and Doyle,
               District Judge.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                         STATE v. BETANCOURT-GARCIA
                               Cite as 299 Neb. 775

   Stacy, J.
   Rosario Betancourt-Garcia (Betancourt) was convicted in
2015 of kidnapping, use of a firearm to commit kidnapping,
and conspiracy to commit kidnapping. We affirmed all of
his convictions and two of his sentences on direct appeal.1
In 2017, Betancourt filed a motion for forensic DNA testing
pursuant to Nebraska’s DNA Testing Act.2 After conducting a
hearing, the district court denied the motion, finding the items
Betancourt wanted to test were no longer in the possession of
the State and had been destroyed before the motion for DNA
testing was filed.3 Betancourt appeals, and we affirm.
                                    FACTS
                           Background
   On November 15, 2003, officers of the Madison Police
Department responded to a call and found Pedro Jesus Rayon-
Piza (Pedro) bound and gagged. Duct tape was wrapped around
Pedro’s face, ankles, and wrists.4 A “‘shoestring type cord’”
was tied around his ankles and wrists. Pedro appeared “‘ter-
rified’” and told officers that Betancourt and another man had
kidnapped him and threatened to kill him.5 The two men left
Pedro bound and gagged in a shed, telling him they were going
to return with Pedro’s brother and then kill them both. Pedro
managed to escape and seek help before Betancourt and the
other man returned.
   The Madison Police Department conducted an immedi-
ate search for Betancourt, but did not find him. Two days
later, arrest warrants were issued for Betancourt and the other
suspect, and the State filed an information in county court,

 1	
      State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).
 2	
      Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).
 3	
      See § 29-4120(1)(b), (3), and (4).
 4	
      State v. Betancourt-Garcia, supra note 1, 295 Neb. at 176, 887 N.W.2d at
      304.
 5	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                         STATE v. BETANCOURT-GARCIA
                               Cite as 299 Neb. 775

charging Betancourt with kidnapping and use of a deadly
weapon to commit a felony.
   Approximately 6 months later, in May 2004, Texas authori-
ties arrested Betancourt in Plano, Texas, based on the Nebraska
warrant. Betancourt signed a waiver of extradition, and the
Madison County sheriff’s office dispatched transport person-
nel to bring Betancourt back to Nebraska. While the transport
personnel were en route to Texas, they learned Betancourt
had mistakenly been transferred by authorities in Texas to the
custody of federal “‘immigration services.’”6 Betancourt was
subsequently deported to Mexico.
   Roughly 9 years later, on July 1, 2013, Texas authorities
arrested Betancourt again, and he was extradited to Nebraska.
The case against Betancourt was bound over to district court,
and the State ultimately filed an amended information charg-
ing Betancourt with kidnapping, use of a deadly weapon
to commit a felony, and conspiracy to commit kidnapping.
Betancourt pled not guilty to all three counts, and a jury trial
was held.
   At trial, Pedro testified that Betancourt was one of the two
men who had kidnapped him, threatened to kill him, and left
him bound and gagged in the shed. The other man involved in
the kidnapping also testified at trial and admitted that he and
Betancourt threatened Pedro with guns, took him to the shed,
and left him there while they looked for Pedro’s brother.
   At trial, the court received without objection several pho-
tographs of the crime scene, including the shed from which
Pedro had escaped. Some of the photographs depicted items
in the shed, including a pair of black tennis shoes with white
laces. There were also photographs of Pedro after the duct tape
had been removed, and adhesive residue was visible on his
face, wrists, and ankles. The police chief testified that some
of the duct tape had been collected at the scene and kept in
the evidence room for several years. But sometime prior to

 6	
      Id. at 174, 887 N.W.2d at 303.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                         STATE v. BETANCOURT-GARCIA
                               Cite as 299 Neb. 775

Betancourt’s rearrest in 2013, the mayor of Madison, Nebraska,
wanted the evidence room cleaned, so officers checked to
“verify where this case was” and then “disposed of” the physi-
cal evidence in Betancourt’s case.
   The jury convicted Betancourt on all charges. In December
2016, we affirmed his convictions on direct appeal, but
remanded for resentencing on the conspiracy conviction.7
                   Motion for DNA Testing
    On February 27, 2017, Betancourt filed a motion for foren-
sic DNA testing, seeking to have items of physical evidence,
including the duct tape, the black tennis shoes, and the shoe
laces, tested for DNA evidence. The motion alleged Pedro had
falsely, or mistakenly, identified Betancourt as the perpetrator
and further alleged that DNA testing could result in exculpa-
tory evidence if Betancourt’s DNA was not found on any of
the physical evidence.
    The district court held a hearing on the motion June 16,
2017. Both the police chief for the city of Madison and a
deputy sheriff for Madison County testified that the physi-
cal evidence related to Betancourt’s case had been destroyed
before trial.
    The police chief testified that sometime in 2010, he
destroyed all the physical evidence related to Betancourt’s
case as part of an initiative to clean out the evidence locker
and get rid of evidence from “old cases.” At the time the
evidence was destroyed, Betancourt had been deported, the
charges against him had been pending for 7 years, and his
whereabouts were unknown. According to the police chief, the
destruction of evidence was not done to frustrate Betancourt’s
defense.
    The deputy sheriff testified that after Betancourt was
­rearrested in 2013 and extradited to Nebraska, he attempted
 to locate the physical evidence related to Betancourt’s case.
 He located a compact disc that contained various photographs

 7	
      State v. Betancourt-Garcia, supra note 1.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                        STATE v. BETANCOURT-GARCIA
                              Cite as 299 Neb. 775

of the physical evidence, but otherwise determined the physi-
cal evidence had been destroyed. Like the police chief, he
testified that the evidence was not destroyed in an effort to
harm or frustrate Betancourt’s defense.
   During the evidentiary hearing on Betancourt’s motion for
DNA testing, Betancourt argued, among other things, that his
due process rights had been violated by the State’s destruction
of the evidence. The district court asked Betancourt why due
process was a relevant issue under the DNA Testing Act, but
Betancourt did not directly answer that question. At the end of
the hearing, the court announced from the bench that it was
basing its decision on “the evidence and the narrow scope of
the statute regarding DNA testing.” It overruled the motion for
DNA testing, finding that the physical evidence Betancourt
wanted to test had been destroyed before the motion for testing
had been filed. Betancourt filed this timely appeal.
                ASSIGNMENTS OF ERROR
   Betancourt assigns the district court erred in finding the
State did not destroy evidence in bad faith and in violation of
his due process rights under the U.S. Constitution.
                  STANDARD OF REVIEW
   [1,2] A motion for DNA testing is addressed to the discre-
tion of the trial court, and unless an abuse of discretion is
shown, the trial court’s determination will not be disturbed.8
An appellate court will uphold a trial court’s findings of fact
related to a motion for DNA testing unless such findings are
clearly erroneous.9
                        ANALYSIS
                     DNA Testing Act
   [3] Nebraska enacted the DNA Testing Act in 2001. It is
a limited remedy providing inmates an opportunity to obtain

 8	
      State v. Robbins, 297 Neb. 503, 900 N.W.2d 745 (2017).
 9	
      See id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                        STATE v. BETANCOURT-GARCIA
                              Cite as 299 Neb. 775

DNA testing in order to establish innocence after a convic-
tion.10 Pursuant to the act, a person in custody takes the first
step toward obtaining possible relief by filing a motion in the
court that entered the judgment requesting forensic DNA test-
ing of biological material.11 The type of biological material
subject to testing under the act is identified in § 29-4120(1).
A person in custody can only request forensic DNA testing of
biological material that
         (a) Is related to the investigation or prosecution that
      resulted in such judgment;
         (b) Is in the actual or constructive possession or con-
      trol of the state or is in the possession or control of oth-
      ers under circumstances likely to safeguard the integrity
      of the biological material’s original physical composi-
      tion; and
         (c) Was not previously subjected to DNA testing or
      can be subjected to retesting with more current DNA
      techniques that provide a reasonable likelihood of more
      accurate and probative results.12
   Here, Betancourt’s motion identified the following material
he wanted to have tested: two black shoes with white laces,
two pieces of duct tape, two pieces of “shoe lace type cord,”
saliva from the duct tape, and all clothing of Pedro taken into
evidence. The motion did not indicate that the evidence at issue
had been destroyed before trial. To the contrary, the motion
specifically stated that “police reports show this evidence still
exist[s] in Madison County.” The motion also alleged that
the evidence had been “collected by law enforcement as part
of the investig[a]tion” and had “remained in State custody
ever since.”
   Under the DNA Testing Act, notice of a motion seeking
forensic DNA testing must be served on the county attorney of

10	
      See, § 29-4117; State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014).
11	
      State v. Pratt, supra note 10.
12	
      § 29-4120(1).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                      STATE v. BETANCOURT-GARCIA
                            Cite as 299 Neb. 775

the county in which the prosecution was held.13 Upon receiving
notice, the county attorney must take steps to ensure that any
“remaining biological material that was secured by the state
or a political subdivision in connection with the case” is pre-
served pending completion of any proceedings under the act.14
The county attorney also is required to submit an inventory of
all evidence that was secured by the State or a political subdi-
vision in connection with the case.15 If evidence is intentionally
destroyed after notice of a motion for DNA testing is received,
a court may impose appropriate sanctions, including criminal
contempt.16 The record before us does not contain the inven-
tory of evidence prepared by the county attorney, but neither
party suggests there was a failure to submit such a document in
response to Betancourt’s motion.
   Under the DNA Testing Act, the court has discretion to
either consider the motion on affidavits or hold a hearing,17
after which it “shall order DNA testing” upon a determina-
tion that
      (a)(i) the biological material was not previously subjected
      to DNA testing or (ii) the biological material was tested
      previously, but current technology could provide a rea-
      sonable likelihood of more accurate and probative results,
      (b) the biological material has been retained under cir-
      cumstances likely to safeguard the integrity of its original
      physical composition, and (c) such testing may produce
      noncumulative, exculpatory evidence relevant to the claim
      that the person was wrongfully convicted or sentenced.18
   In this case, the district court held a hearing, and the uncon-
troverted testimony established that the biological material

13	
      § 29-4120(2).
14	
      § 29-4120(3).
15	
      § 29-4120(4).
16	
      Id.
17	
      § 29-4120(5).
18	
      Id.
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                 Nebraska Supreme Court A dvance Sheets
                         299 Nebraska R eports
                          STATE v. BETANCOURT-GARCIA
                                Cite as 299 Neb. 775

Betancourt wanted to have tested was not in the actual or
constructive possession or control of the state when Betancourt
filed his motion. The police chief had disposed of the mate-
rial while cleaning out the evidence room several years
before Betancourt’s convictions, and at a point in time when
Betancourt was absconded from Nebraska and not incarcerated
in connection with this case.
   Based on this evidence, we find no error in the district
court’s factual findings that the biological material Betancourt
wanted tested no longer existed and the related finding that no
evidence had been destroyed after Betancourt’s motion was
filed. And given these factual findings, we find no abuse of
discretion in denying relief under the DNA Testing Act.
   [4] At the time Betancourt filed his motion, the material
sought to be tested did not fall within the purview of the DNA
Testing Act, because it was not in the actual or constructive
possession or control of the State or others, as required by
§ 29-4120(1)(b). And although the DNA Testing Act provides
that “state agencies and political subdivisions shall preserve
any biological material secured in connection with a criminal
case for such period of time as any person remains incarcer-
ated in connection with that case,”19 the evidence was uncon-
troverted that the biological material at issue was destroyed
before Betancourt’s trial and convictions and during a time
period in which Betancourt was absconded from Nebraska and
not incarcerated in connection with the case.
   The district court correctly overruled Betancourt’s motion
for DNA testing. To the extent Betancourt assigns error to the
contrary, the assignment is without merit.
                     Due Process Claim
  Betancourt assigns and argues on appeal that the evidence
destroyed before his trial was “materially exculpatory”20 and

19	
      § 29-4125(1).
20	
      Brief for appellant at 11.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                         STATE v. BETANCOURT-GARCIA
                               Cite as 299 Neb. 775

that therefore, the State’s destruction of it violated his right to
due process of law.21 The district court’s ruling did not address
Betancourt’s due process argument, and for good reason. It was
not properly before the court.
   [5] Betancourt limited his motion to requesting DNA testing
under the DNA Testing Act. His motion did not challenge the
destruction of evidence at all and, instead, affirmatively alleged
the evidence he wanted tested was still in the State’s custody.
The motion did not raise any sort of constitutional due process
challenge based on the destruction of evidence. And in any
event, a constitutional challenge to the destruction of evidence
is outside the purview of the DNA Testing Act. On this record,
the district court correctly declined to address Betancourt’s due
process arguments.
                       CONCLUSION
  For the foregoing reasons, the order of the district court
overruling the motion for DNA testing is affirmed.
                                                   A ffirmed.
  Wright and Funke, JJ., not participating.

21	
      See California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d
      413 (1984).
