- 775 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

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 innocence after a conviction.

4. ____. Under Neb. Rev. Stat. § 29-4120(1)(b) (Reissue 2016), biological 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: Mark

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 Arterburn, Judge, and Doyle, 

District Judge.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/18/2018 01:07 AM CDT
- 776 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

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 RayonPiza (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 “‘terrified’” 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 immediate 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.
- 777 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

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 authorities 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 personnel 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 charging 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 photographs 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.
- 778 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

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 physical 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 forensic 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 exculpatory 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 physical 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.
- 779 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

STATE v. BETANCOURT-GARCIA

Cite as 299 Neb. 775

of the physical evidence, but otherwise determined the physical 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 discretion 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.
- 780 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

STATE v. BETANCOURT-GARCIA

Cite as 299 Neb. 775

DNA testing in order to establish innocence after a conviction.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 testing 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 control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity 

of the biological material’s original physical composition; and

(c) Was not previously subjected to DNA testing or 

can be subjected to retesting with more current DNA 

techniques that 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).
- 781 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

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 preserved 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 subdivision 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 inventory 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 determination 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 reasonable likelihood of more accurate and probative results, 

(b) the biological material has been retained under circumstances 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 uncontroverted 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.
- 782 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

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 material 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 incarcerated in connection with that case,”19 the evidence was uncontroverted 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.
- 783 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

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.

Affirmed.

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).