                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1736

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                              David Michael Rindahl, Jr.,
                                     Appellant.

                               Filed February 1, 2016
                                      Affirmed
                                   Johnson, Judge

                            Goodhue County District Court
                              File No. 25-CR-12-2660

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Stephen Betcher, Goodhue County Attorney, Red Wing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and Harten,

Judge.




      
       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

JOHNSON, Judge

      A Goodhue County jury found David Michael Rindahl guilty of malicious

punishment of a child resulting in great bodily harm, based on evidence that his four-

month-old daughter sustained a non-accidental traumatic head injury while in his care.

Rindahl challenges the sufficiency of the evidence. We affirm.

                                        FACTS

      In October 2012, David Rindahl and his wife, K.K., were living together with their

two daughters, K.R. and L.R., in Red Wing. K.R. was four months old at the time, and

L.R. was two years old. In the afternoon and evening of Sunday, October 28, 2012, Rindahl

was at home, caring for the two girls, while K.K. was at work, only a few blocks away.

K.K. worked for the emergency room of a nearby hospital as an administrative assistant;

her primary duties were registering patients for emergency and urgent care.

      At approximately 7:30 that evening, K.K. received a telephone call from Rindahl,

who frantically told her that he thought K.R. was having a seizure. Rindahl brought both

girls to the emergency room a few minutes later. K.R. had several seizures at the hospital

that evening and was airlifted to the Mayo Clinic in Rochester. She was diagnosed with a

subdural hematoma. She showed no external signs of injury and had no detectable injury

to her neck or to other bones. She underwent surgery several days later to reduce the

hematoma. After being discharged, K.R.’s seizures have recurred periodically.

      Two days after the incident, Rindahl was interviewed by Red Wing police officers

for approximately two hours. Two days after the interrogation, the state charged Rindahl


                                            2
with five offenses: (1) first-degree assault, in violation of Minn. Stat. § 609.221, subd. 1

(2012); (2) malicious punishment of a child resulting in great bodily harm, in violation of

Minn. Stat. § 609.377, subds. 1, 6 (2012); (3) third-degree assault of a person under the age

of four, in violation of Minn. Stat. § 609.223, subd. 3 (2012); (4) malicious punishment of

a child under the age of four, in violation of Minn. Stat. § 609.377, subds. 1, 4; and

(5) malicious punishment of a child resulting in substantial bodily harm, in violation of

Minn. Stat. § 609.377, subds. 1, 5.

        The case was tried to a jury in April 2014. The state presented eleven witnesses,

including five physicians.      The state’s witnesses included K.K., K.R.’s maternal

grandfather, K.R.’s daycare provider, a Goodhue County social worker, and the two Red

Wing police officers who interrogated Rindahl. The state also introduced extensive

excerpts of a video-recording of the interrogation of Rindahl, which were played for the

jury.

        The state presented a considerable amount of medical evidence. Dr. Margaret

Decker, a pediatrician who examined K.R. at the Red Wing emergency room, testified that

K.R. sustained a brain injury by either shaking or impact, and that K.R.’s physical condition

did not allow her to rule out one cause or the other. Dr. Daniel Broughton, a pediatrician

specializing in child abuse at the Mayo Clinic in Rochester who examined K.R. upon her

arrival there and cared for her thereafter, testified that, based on blood tests, imaging, and

his examination, no explanation remained for K.R.’s injury except a violent shaking.

Dr. Broughton specifically testified that Rindahl’s report of tripping over a cat while

carrying K.R. three weeks earlier did not account for K.R.’s condition. Dr. Peter Kalina, a


                                              3
radiologist at the Mayo Clinic in Rochester, testified that K.R. sustained a permanent,

irreparable loss of brain tissue as a result of the subdural hematoma, though he did not

testify about the cause of her injury. Dr. Nicholas Wetjen, a pediatric neurosurgeon at the

Mayo Clinic in Rochester who performed surgery to address K.R.’s subdural hematoma,

testified that K.R.’s condition is consistent with a violent shaking injury but inconsistent

with any other explanation.

       The state also called an expert witness, Dr. Mark Hudson, a pediatrician specializing

in the diagnosis and evaluation of suspected child abuse. Dr. Hudson testified that the

relevant medical records indicate that abusive head trauma was the cause of K.R.’s injury.

He also testified that medical records suggesting “new on old blood” or “acute on chronic

blood” may have been incorrect or misinterpreted as indicating more than one incident of

abuse. Dr. Hudson testified that the evidence is inconclusive as to whether K.R. was

injured only once or more than once.

       Rindahl testified in his own defense. He maintained that he never violently shook

K.R. but, rather, that he merely “jostle[d] her from side to side” shortly before she had her

first seizure. Rindahl also called an expert witness, Dr. John Plunkett, a specialist in

pathology. Dr. Plunkett testified that, based on his review of K.R.’s medical records and

other case-related materials, K.R.’s injury was the result of an expanding chronic subdural

hematoma. Dr. Plunkett also testified that the lack of any skeletal injuries disproved a

diagnosis related to shaking.




                                             4
       The jury found Rindahl guilty on counts 2, 4, and 5, but not guilty on counts 1 and

3. The district court imposed a sentence of 57 months of imprisonment on count 2. Rindahl

appeals.

                                     DECISION

       Rindahl argues that the evidence is insufficient to support the jury’s verdict that he

is guilty of malicious punishment of a child resulting in great bodily harm. The statute

governing the offense of conviction makes it a crime for “[a] parent, legal guardian, or

caretaker who, by an intentional act or a series of intentional acts with respect to a child,

evidences unreasonable force or cruel discipline that is excessive under the circumstances.”

Minn. Stat. § 609.377, subd. 1. Rindahl contends that “the state failed to prove beyond a

reasonable doubt that [he] committed an intentional act that evidenced unreasonable force

or cruel discipline.”

       Ordinarily, when reviewing the sufficiency of the evidence, we undertake “a

painstaking analysis of the record to determine whether the evidence, when viewed in the

light most favorable to the conviction, was sufficient” to support the conviction. State v.

Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We seek to “determine

whether the facts in the record and the legitimate inferences drawn from them would permit

the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of

the offense of which he was convicted.” State v. Salyers, 858 N.W.2d 156, 160 (Minn.

2015) (quotations omitted). We “assume that the factfinder disbelieved any testimony

conflicting with [the] verdict.” State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011)

(quotation omitted). “We will not disturb the verdict if the jury, acting with due regard for


                                             5
the presumption of innocence” and the requirement of proof beyond a reasonable doubt,

could reasonably conclude the defendant was guilty of the crime charged. Bernhardt v.

State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).

       If circumstantial evidence is necessary to support a conviction, however, we apply

a different standard of review. State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). In such

a case, “The first step is to identify the circumstances proved” and “assume that the jury

resolved any factual disputes in a manner that is consistent with the jury’s verdict.” Id.

(citing State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)). The second step is to

“examine independently the reasonableness of the inferences that might be drawn from the

circumstances proved,” and then “determine whether the circumstances proved are

consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.

(quotations omitted). We must consider the evidence as a whole and not examine each

piece in isolation. Andersen, 784 N.W.2d at 332.

       To determine whether to apply the ordinary standard of review or the circumstantial-

evidence standard of review, we first ask whether the state’s direct evidence is sufficient

to prove each element of the charged offense. See State v. Flowers, 788 N.W.2d 120, 133

n.2 (Minn. 2010). If the state’s direct evidence, by itself, is sufficient to prove each element

of the charged offense, we apply the ordinary standard of review; but if the state’s direct

evidence, by itself, is insufficient to prove each element of the charged offense, and the

state also relies on circumstantial evidence to prove one or more elements, we apply the

circumstantial-evidence standard of review. See State v. Porte, 832 N.W.2d 303, 309-10

(Minn. App. 2013) (applying circumstantial-evidence standard of review because state


                                               6
introduced insufficient direct evidence); see also Salyers, 858 N.W.2d at 160-61 (applying

ordinary standard of review because state introduced sufficient direct evidence); State v.

Sam, 859 N.W.2d 825, 832-33 (Minn. App. 2015) (applying circumstantial-evidence

standard of review because state did not introduce direct evidence). Direct evidence is

“‘evidence that is based on personal knowledge or observation and that, if true, proves a

fact without inference or presumption’”; circumstantial evidence is “‘evidence based on

inference and not on personal knowledge or observation.’” Bernhardt, 684 N.W.2d at 477

n.11 (alterations omitted) (quoting Black’s Law Dictionary 595-96 (8th ed. 2004)).

       In this case, Rindahl contends that the circumstantial-evidence standard of review

applies and that the circumstantial evidence is insufficient. In response, the state contends

that the ordinary standard of review applies and that the direct evidence is sufficient to

sustain the conviction. The state contends alternatively that, even if the direct evidence is

insufficient, the combination of direct evidence and circumstantial evidence is sufficient to

support the conviction. The state’s theory is that Rindahl committed the criminal act or

acts on October 28, 2012, while inside the residence that he shared with K.K. and their

children. The only persons known to be present inside the residence at that time were

Rindahl, K.R., and L.R. Of these three persons, only Rindahl testified, though the state

also introduced a video-recording with statements that Rindahl made during the police

interrogation.

       Rindahl’s testimony and pre-trial statements are the only evidence in the record that

are “‘based on personal knowledge or observation” and capable of “‘prov[ing] a fact

without inference or presumption.’” Id. (quoting Black’s Law Dictionary 596 (8th ed.


                                             7
2004)).   But the facts proved by Rindahl’s testimony and pre-trial statements, by

themselves, do not validate the state’s theory. During the interrogation, Rindahl stated, in

various ways at various points in time, that he held K.R. and that he moved her in some

manner, but he maintained that his movements were not rough or violent and that he was

not angry or upset. At trial, Rindahl described his conduct in similar ways and denied

exerting unreasonable force on K.R. or engaging in any act that was unreasonable under

the circumstances. In short, Rindahl’s version of the events of October 28, 2012, does not

establish each element of the offense. Accordingly, the conviction necessarily depends on

circumstantial evidence, i.e., “‘evidence based on inference and not on personal knowledge

or observation.’” Id. (alteration omitted) (quoting Black’s Law Dictionary 595 (8th ed.

2004)). Thus, we must apply the circumstantial-evidence test.

       The first step of the circumstantial-evidence test is to identify the circumstances

proved, assuming that the jury resolved factual disputes in a manner that is consistent with

its verdict. Moore, 846 N.W.2d at 88. Both the state and Rindahl identify a number of

circumstances proved. In our view, the essential circumstances proved are the following:

(1) Rindahl is K.R.’s father; (2) Rindahl was caring for K.R. on October 28, 2012, when

she was four months old; (3) in the past, Rindahl had experienced stress while caring for

K.R., which led him and K.K. to establish a plan for obtaining assistance; (4) K.R. was in

a normal condition when K.K. left for work at approximately 2:00 p.m.; (5) Rindahl held

K.R. and moved her around in some manner while caring for her; (6) K.R. experienced a

seizure in the early evening; (7) Rindahl brought K.R. to a hospital emergency room at

approximately 7:30 p.m.; (8) K.R. was diagnosed with a subdural hematoma, caused by an


                                             8
acute head injury and not by any preexisting condition; (9) K.R.’s subdural hematoma was

not caused by an external impact to the head; and (10) K.R.’s injuries were consistent with

violent shaking.

       The second step of the circumstantial-evidence test is to independently examine the

reasonableness of the inferences that the jury might have drawn from the circumstances

proved and “determine whether the circumstances proved are consistent with guilt and

inconsistent with any rational hypothesis except that of guilt.” Id. (quotations omitted).

The circumstances proved are consistent with guilt because they allow a reasonable juror

to infer that Rindahl caused K.R.’s injuries by violently shaking her, which would

constitute “unreasonable force or cruel discipline that is excessive under the

circumstances.” See Minn. Stat. § 609.377, subd. 1. This conclusion is supported by the

video-recording of the interrogation of Rindahl, which, though not completely

incriminating, tends to support the inference that Rindahl caused K.R.’s injuries. The key

question is whether the circumstances proved are “inconsistent with any rational hypothesis

except that of guilt.” See Moore, 846 N.W.2d at 88 (quotations omitted). On appeal,

Rindahl identifies three ways in which the circumstances proved are consistent with his

being not guilty.

       First, Rindahl suggests that K.R.’s injury may have been caused by “something

other than an intentional act committed by Rindahl,” such as an accident. Rindahl notes

that K.R. did not have any injuries to her neck and thorax, which would have corroborated

the state’s theory that Rindahl violently shook her. But the state’s expert, Dr. Hudson,

testified that a child’s subdural hematoma can occur without a simultaneous injury to the


                                            9
neck or thorax and, furthermore, that it is more common for a subdural hematoma to occur

without a simultaneous injury to the neck or thorax. More importantly, Dr. Wetjen, the

pediatric neurosurgeon who performed surgery on K.R., testified that K.R.’s condition was

consistent with a violent shaking injury but inconsistent with any other explanation. For

purposes of our analysis, we assume that the jury believed Dr. Hudson’s testimony and

Dr. Wetjen’s testimony because we must “assume that the jury resolved any factual

disputes in a manner that is consistent with the jury’s verdict.” Id. Given the testimony of

those witnesses, and given the record as a whole, the circumstances proved by the state’s

evidence are inconsistent with Rindahl’s hypothesis that he is not guilty because K.R. was

injured by an unknown cause, other than violent shaking, that did not injure her neck or

thorax. See State v. Hayes, 831 N.W.2d 546, 552-53 (Minn. 2013) (affirming conviction

arising from infant’s severe head injury, despite defendant’s expert’s testimony of possible

accidental cause, because circumstantial evidence showed that injuries “were too severe to

be the result of a typical household fall”); State v. Orfi, 511 N.W.2d 464, 471-72 (Minn.

App. 1994) (affirming conviction arising from young child’s severe head injury, despite

defendant’s expert’s testimony of possible alternative causes, based on physicians’

testimony that child’s subdural hematoma was caused by violent shaking), review denied

(Minn. Mar. 15, 1994).

       Second, Rindahl suggests that K.R.’s injury may have been caused by a chronic

hematoma, which was preexisting on October 28, 2012. Rindahl relies on medical records

created by Dr. Wetjen and Dr. Broughton that refer to a chronic subdural hematoma. But

Dr. Wetjen testified at trial that K.R. had an acute subdural hematoma, and Dr. Broughton


                                            10
testified that, in retrospect, he should have recorded his observations differently.

Dr. Hudson testified that the presence of old blood was uncertain and, even if present, was

inconclusive as to whether K.R. had sustained an earlier head injury.          And again,

Dr. Wetjen testified that K.R.’s condition is consistent with a violent shaking injury but

inconsistent with any other explanation. We must assume that the jury believed those

physicians’ testimony. See Moore, 846 N.W.2d at 88. Furthermore, Rindahl’s theory does

not negate the state’s theory that Rindahl caused K.R.’s injury on October 28, 2014. Given

the testimony of the state’s physician witnesses, and given the record as a whole, the

circumstances proved by the state’s evidence are inconsistent with Rindahl’s hypothesis

that he is not guilty because K.R. was injured by a chronic subdural hematoma. See Hayes,

831 N.W.2d at 552-53; Orfi, 511 N.W.2d at 471-72.

      Third, Rindahl contends that he had “no history of engaging in assaultive conduct,

domestic or otherwise,” that he was an “engaged parent,” and that he and K.K. had a plan

for obtaining assistance when he became overwhelmed. Although such evidence might

have a tendency to persuade a jury that Rindahl is not guilty, it is not necessarily

inconsistent with guilt. It is not implausible that a person with a history of being a good

parent might nonetheless commit the offense of malicious punishment of a child. Thus,

these circumstances simply are not inconsistent with the finding of guilt. See Moore, 846

N.W.2d at 88.




                                            11
       We conclude that the circumstances proved are “consistent with guilt and

inconsistent with any rational hypothesis except that of guilt.” Id. (quotations omitted).

Thus, the evidence introduced at trial is sufficient to support the conviction.

       Affirmed.




                                             12
