State v. Betancourt-Garcia

Nebraska Supreme Court Online Library 04/26/2018 09:09 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. - 776 - 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 ...

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