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Deseret News

ELKO, Nev. — Kody Cree Patten was ordered Wednesday to stand trial in the death of a fellow West Wendover High School classmate.

But based on taped confessions from Patten and his fiancée and co-defendant, Toni Fratto, there are two very different versions of what happened that a jury will have to sort through.

In an emotional interview with police on the night he was arrested, Patten confessed to pushing 16-year-old Micaela Costanzo twice and hitting her over the head with a shovel after she went into a seizure. He never mentioned Fratto being present during the killing and didn't mention the use of a knife to cut Micaela's throat.

Patten also told his father that he didn't actually kill Micaela, Kip Patten testified Wednesday.

Fratto, in her taped confession, said she was the one who hit Micaela over the head with a shovel and said both she and Patten cut the girl's throat.

While the couple did not point fingers at each other during their interviews, their attorneys are now doing just that. Each is claiming the other holds more, if not all, of the culpability for Micaela's death.

Both Patten, 18, and Fratto, 19, are charged with kidnapping Micaela on March 3, driving her to a remote area in the desert outside of Wendover and killing her.

According to amended information filed in Elko District Court Tuesday, both Patten and Fratto now face six charges: kidnapping, murder, conspiracy to commit murder and/or kidnapping, murder committed during the perpetration of a kidnapping with the use of a deadly weapon, destroying evidence and attempted willful destruction of evidence.

Kip Patten testified that on the same night his son gave the tearful confession to police, he also whispered to him when they were alone that he didn't deliver the fatal blows.

"He said he didn't actually kill her," Kip Patten testified.

"I said, 'What?' and he said, "Nevermind,'" Kip Patten said, adding that he didn't fully understand or realize what his son was saying then because he was wrapped up in the emotion of the situation.

The father said he has subsequently asked his son several times why the killing occurred, but his son either shrugged his shoulders or failed to give an explanation. The last time he spoke with Kody, about three weeks ago, his son said, "Dad, I don't know what answers you want me to give you because I don't have anything else."

In the recorded interview, Kody Patten told investigators that Micaela seemed to be interested in getting back together with him but that he wasn't willing to leave Fratto. In Fratto's taped confession, she also said Micaela wanted to date Patten.

But a close friend of Micaela's testified last month during Fratto's preliminary hearing that Micaela barely spoke with Patten and wanted nothing to do with him.

Patten's defense attorney, John Ohlson, said outside the Elko Justice Courthouse Wednesday that he believes it was Fratto's jealousy of Micaela that ultimately led to the crime. He said Patten was not the force or the "freight train" behind the killing, but blamed Fratto.

As for the differing interviews, Ohlson acknowledged some of the testimony between the two defendants coincided, and other parts conflicted.

“This has turned into a really interesting case,” he noted.

After Wednesday's hearing, Fratto's mother, Cassie Fratto, said her daughter is completely innocent. She says her daughter was with her from 5 p.m. until 7 p.m. the day of the crime.

"She wasn't there at all. She was with me."

When asked why she would confess to a murder she didn't commit, Cassie Fratto replied: "The truth will come out in court."

Fratto explained that her daughter loved Patten a lot, and "at that time" would have done anything to protect him.

But Ohlson said there has been no concrete evidence presented of when the crime actually happened. A videotape of Patten and Micaela leaving West Wendover High School four minutes apart does not constitute a kidnapping, he said.

Ohlson hinted that recently uncovered private papers belonging to Fratto would be used to assist in Patten's defense.

Still, Ohlson did not deny Patten held some responsibility in Micaela's death and his job now is to help him avoid a possible death sentence if convicted.

For the first time in either preliminary hearing, forensic evidence was presented Wednesday to the judge. But the evidence revealed very little about the crime.

Forensic analysts from the Washoe, Nev, County Sheriff's Office testified that tests were conducted on Micaela's sweater and the shovel allegedly used in the crime. The sleeves of the sweater had been tied in a knot, allegedly used to bind Micaela.

According to the newly amended charges, prosecutors believe Micaela was "bound or otherwise confined" when Patten drove her into the desert.

Using the primary DNA testing procedure, Steven Gresko testified that DNA from Micaela and two other people was found on the sweater. But the DNA levels from the other people were so low that more testing needed to be conducted. Using more specialized tests, some of the low levels of DNA found on Micaela's sweatshirt matched Patten's DNA. The other DNA, however, was so low that it could not be conclusively matched to Fratto.

"It could be, it could not be. But that could be true for anyone," Gresko said of the inconclusive result. "It's too low (of a) level."

Additionally, a blood expert from the sheriff's office testified that she looked for blood on the shovel allegedly used in the attack but found nothing.

"I did not find any and I examined it thoroughly," Suzanne Harmon testified.

After Patten was bound over for trial, Celia Costanzo, Micalea's mother who has sat through every minute of the preliminary hearings for both Fratto and Patten, talked about the difficulty of testifying. She said it was hard to view reminders of her daughter in the courtroom, such as her key charm, pieces of her backpack and a surveillance video from the high school showing Micaela walking in the hallway before she was allegedly kidnapped.

"From the beginning this case has been about Micaela. It just brings back memories of when I would take her to school … her everyday life," she said.

As for the apparent conflicting confessions and culpability of the defendants, Costanzo said she will leave it up to prosecutors and the court to decide.

"We are going to try and leave the evidence up to police and the district attorney to make sense of," she said. "I am still just trying to process everything. It's been difficult for us."

Costanzo said she is sure the evidence will speak for itself.

While no trial dates have been set, Ohlson said he expects a trial for Patten to happen sometime in the spring of next year.

E-mail: preavy@desnews.com

Twitter: DNewsCrimeTeam