State v. Nakvinda

• Decision Date: 15 November 2011
• Docket Number: No. 20110038.,20110038.
• Citation: 807 N.W.2d 204,2011 ND 217
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michael Allen NAKVINDA, Defendant and Appellant.
• Court: North Dakota Supreme Court

2011 ND 217

807 N.W.2d 204

STATE of North Dakota, Plaintiff and Appellee,

v.Michael Allen NAKVINDA, Defendant and Appellant.

No. 20110038.

Supreme Court of North Dakota.

Nov. 15, 2011.

Birch P. Burdick, State's Attorney, Fargo, N.D., for plaintiff and appellee.

Mark T. Blumer, Fargo, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Michael Nakvinda appeals from a criminal judgment entered after a jury found him guilty of murder, robbery, burglary, and theft in connection with the death of Philip Gattuso, Jr., and the theft of Gattuso's Porsche Boxster automobile. We affirm the judgment, concluding the State presented sufficient evidence for a jury to find Nakvinda guilty beyond a reasonable doubt.

I

[¶ 2] In 2009, Gattuso lived in Fargo, North Dakota, with his wife, Valerie Gattuso, and their child. In March 2009, Valerie Gattuso died after a prolonged illness. Her father, Gene Kirkpatrick, and his family sought custody of the child. Gattuso resisted.

[¶ 3] On October 26, 2009, after Gattuso did not pick up his child from daycare, a neighbor found Gattuso dead on the floor of his bedroom. Gattuso had been killed with a hammer, and personal property was missing, including Gattuso's Porsche Boxster. The State charged Nakvinda, Kirkpatrick's “handyman,” with murder, robbery, burglary, and theft of property.

[¶ 4] At trial, the State presented evidence to support its theory that Kirkpatrick hired Nakvinda to travel from Nakvinda's home in Oklahoma to kill Gattuso in Fargo. Law enforcement officers testified they found Gattuso's Porsche Boxster in a storage unit rented by Nakvinda in Oklahoma, and inside the vehicle they found a bloodied hammer that had Gattuso's blood on it. Kirkpatrick testified he had talked with Nakvinda about killing Gattuso, but contended it had only been talk and they had never reached an agreement. Kirkpatrick admitted paying Nakvinda $3,000, but contended it had been for handyman services. The State presented surveillance videos from The Bowler in Fargo showing Nakvinda's pickup truck pulling first an empty U–Haul trailer with Oklahoma license plates near Gattuso's home on October 26, and later the same pickup truck and trailer pulling what appeared to be a tarp-covered automobile on the trailer. Rest area surveillance videos showed the same pickup truck and trailer with a tarp-covered vehicle on the trailer arrive at the Glacial Lakes Rest Area in South Dakota, near the North Dakota border. The time and date stamps on The Bowler and Glacial Lakes Rest Area surveillance videos, respectively, showed a difference in time of approximately eight minutes. A region operations coordinator for the South Dakota Department of Transportation testified, however, that all four of the rest area surveillance cameras had not been adjusted for daylight savings time and, therefore, the actual adjusted difference in time would have been approximately sixty-eight minutes. Another rest area surveillance video showed Nakvinda entering the building carrying an empty garbage bag and, minutes later, exiting the building wearing different clothes and carrying a garbage bag that was no longer empty. The State also presented eyewitness testimony from a neighbor of Gattuso's who testified she saw a man loading a Porsche Boxster onto a trailer pulled by a pickup truck in the alleyway behind her home on the morning of October 26.

[¶ 5] In his defense, Nakvinda testified he had never been to Fargo. Instead, he testified he agreed with Kirkpatrick to travel to Wahpeton, North Dakota, to pick up and haul back to Oklahoma a vehicle purchased by Kirkpatrick. Nakvinda testified to receiving $3,000 from Kirkpatrick in exchange for handyman services, and he testified he agreed to pick up Kirkpatrick's vehicle in Wahpeton for $1,500, but Kirkpatrick never paid him.

[¶ 6] Nakvinda testified he stayed at a house in Wahpeton on October 25, and the owner of the house woke Nakvinda on October 26 and informed him he had loaded the vehicle for which Nakvinda had come onto a U–Haul trailer rented by Nakvinda in Oklahoma. The defense theorized the Wahpeton homeowner drove Nakvinda's pickup truck and U–Haul trailer to Fargo on October 26, loaded Kirkpatrick's vehicle on the trailer, and returned to Wahpeton. Nakvinda testified he then drove from Wahpeton to the Glacial Lakes Rest Area to change clothes because he had left Wahpeton in a hurry. Nakvinda also testified he drove his pickup truck and U–Haul trailer back to Oklahoma and placed Kirkpatrick's vehicle in a storage unit rented by Nakvinda. On cross-examination, Nakvinda testified he did not know the name of the person he met in Wahpeton or the address of the house at which he claimed to have stayed.

[¶ 7] In rebuttal, the State used the time difference between the time and date stamps of the respective surveillance videos to discredit Nakvinda's testimony that someone delivered Kirkpatrick's vehicle to him in Wahpeton. Specifically, Detective Paula Ternes of the Fargo Police Department testified it took her sixty-five minutes to travel from The Bowler, near Gattuso's home in Fargo, to the Glacial Lakes Rest Area. The State theorized Nakvinda did not have time to travel anywhere but to the Glacial Lakes Rest Area from Fargo.

[¶ 8] After an eight-day trial that included testimony of more than thirty witnesses and over 300 exhibits, the jury found Nakvinda guilty on all four counts.

[¶ 9] Nakvinda subsequently moved for a new trial under N.D.R.Crim.P. 33, arguing the State did not introduce sufficient evidence to support the guilty verdicts. Central to his argument, Nakvinda claimed the State did not present any physical evidence placing him at the crime scene in Gattuso's home. The district court denied Nakvinda's motion, ruling that although the State did not provide any direct, physical evidence placing Nakvinda in Gattuso's home, the State provided ample circumstantial evidence tying Nakvinda to the crimes.

[¶ 10] The district court sentenced Nakvinda to life imprisonment with no possibility of parole for his murder conviction. The court also ordered him to serve twenty years, ten years, and five years, respectively, for his robbery, burglary, and theft convictions, with each sentence to run concurrently. Nakvinda appealed.

[¶ 11] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Nakvinda's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

[¶ 12] Nakvinda argues the State failed to present sufficient evidence at trial to sustain the guilty verdicts. Our standard of review for cases in which a criminal defendant challenges the sufficiency of the evidence is well-established:

When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. When considering insufficiency of the evidence, we will not reweigh conflicting evidence or judge the credibility of witnesses.... A jury may find a defendant guilty even though evidence exists which, if believed, could lead to a verdict of not guilty.

State v. Kinsella, 2011 ND 88, ¶ 7, 796 N.W.2d 678 (quoting State v. Wanner, 2010 ND 121, ¶ 9, 784 N.W.2d 143). When the verdict is attacked and the evidence is legally sufficient to sustain the verdict, we will not disturb the verdict and judgment even though the trial included conflicting evidence and testimony. Hochstetler v. Graber, 78 N.D. 90, 93, 48 N.W.2d 15, 18 (1951).

[¶ 13] Nakvinda does not specifically argue the district court erred in denying his motion for a new trial. A district court's denial of a motion for a new trial is conclusive unless we conclude the district court abused its discretion. State v. Kraft, 413 N.W.2d 303, 308 (N.D.1987). Rather, Nakvinda argues the State failed to present sufficient evidence to support the jury's verdict. Because Nakvinda has not raised an issue about the denial of his motion for a new trial, we do not consider whether the district court abused its discretion in denying that motion. See Mann v. Zabolotny, 2000 ND 160, ¶ 9, 615 N.W.2d 526.

[¶ 14] Nakvinda specifically argues the evidence is insufficient to support the jury's verdict because the State failed to place him at the crime scene in Gattuso's home in Fargo. He contends he could not be convicted of murder, robbery, burglary, or theft unless the State proved his presence at the crime scene. We begin by outlining the elements of the four crimes for which the jury convicted Nakvinda.

[¶ 15] Section 12.1–16–01(1), N.D.C.C., governing murder, provides, in part:

A person is guilty of murder, a class AA felony, if the person:

a. Intentionally or knowingly causes the death of another human being;

b. Causes the death of another human being under circumstances manifesting extreme indifference to the value of human life; or

c. Acting ... alone ... commits or attempts to commit ... robbery, burglary ... and, in the course of and in furtherance of such crime or of immediate flight therefrom, the person ... causes the death of any person.

Section 12.1–22–01, N.D.C.C., governing robbery, provides, in part:

1. A person is guilty of robbery if, in the course of committing a theft, he inflicts or attempts to inflict bodily injury upon another or threatens or menaces another with imminent bodily injury.

2. Robbery is a class A felony if the actor ... directs the force of any other dangerous weapon against another.

Sections 12.1–22–02(1) and (2)(b), N.D.C.C., governing burglary, provide:

1. A person is guilty of burglary if he willfully enters or surreptitiously remains in a building or occupied...