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Dave Roepke, Published August 31 2011

Nakvinda appeals murder conviction

BISMARCK – An attorney for Michael Nakvinda, the handyman found guilty in December of murdering a Fargo dentist, argued on appeal Wednesday that there wasn’t enough evidence for jurors to convict him.

In a hearing at the North Dakota Supreme Court, the lawyer for Nakvinda, Mark Blumer, said there was no proof Nakvinda was ever in Fargo, where on Oct. 26, 2009, Philip Gattuso was beat to death in his condominium on South University Drive before his Porsche convertible and a variety of electronics and other items were stolen.

The only witness who did see someone loading a car trailer like the one used to steal the Porsche gave a description not matching Nakvinda, and no physical evidence of any sort puts him

in Fargo, Blumer said.

Nakvinda doesn’t dispute the stolen car and items, as well as a hammer stained with Gattuso’s blood, were found in his hometown of Oklahoma City in a storage unit he rented. He claims he drove to Wahpeton, N.D., and as he slept, someone else drove his truck to Fargo to steal and load the car and presumably murder the dentist.

The justices, as they do on all cases, didn’t issue an immediate opinion and will make a ruling later. Based on their questioning, they had doubts that Nakvinda could show no jury could reasonably infer guilt from the facts presented at trial.

“So because your client testified to the contrary, he’s not guilty, is that your argument?” Justice Dale Sandstrom said at the end of nearly one hour of oral argument in Bismarck.

Cass County State’s Attorney Birch Burdick gave a defense of the case in his argument, noting the sole witness Blumer referred to admitted she didn’t get a good look at the man loading the car trailer.

Burdick raised an issue prosecutors emphasized at length in the trial, whether Nakvinda’s story accounts for the roughly 69 minutes between when his truck was seen by cameras near The Bowler and then later seen again at a rest stop just across the state border in South Dakota.

If Nakvinda’s version of what happened is true, the 69 minutes would also need to give the unknown driver enough time to come into Wahpeton, wake Nakvinda up and get him on the road.

“It just seemed impossible to accommodate the timing,” Burdick said.

Prosecutors also charged Gene Kirkpatrick for conspiracy to commit murder in the Gattuso killing, as he told police he’d given Nakvinda, his handyman, $3,000 in expenses to kill Gattuso, his former son-in-law and single dad to Kirkpatrick’s granddaughter.

Jurors convicted Kirkpatrick on the murder conspiracy charge in July.

Readers can reach Forum reporter Dave Roepke at (701) 241-5535