DNA Evidence—Testing—Due Process—Destruction of Evidence.
This appeal stemmed from defendant’s 1988 conviction for kidnapping and sexual assault. On direct appeal, it was determined that the trial court had not abused its discretion in denying defendant’s request for DNA testing because “defendant was seen committing the offense by a police officer and was identified by the victim,” making “the utility of DNA testing . . . speculative at best.” Defendant thereafter filed a Crim.P. 35(c) motion requesting post-conviction testing of DNA. The prosecution conducted DNA testing on the victim’s underwear and did not find any traces of semen and saliva. Defendant then requested his own DNA testing, but the evidence had been destroyed.
On appeal, defendant requested a remedy for the negligent destruction of the underwear. However, defendant was not entitled to testing of the underwear under CRS § 18-1-413 in the first instance because he failed to establish by a preponderance of the evidence that favorable results of DNA testing would demonstrate his actual innocence. Therefore, the trial court did not err and defendant was not entitled to relief under CRS § 18-1-414(2)(b). The trial court’s determination that the destruction of the evidence did not violate defendant’s due process rights was affirmed.