State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1005

State of Minnesota,
Respondent,

vs.

Joshua Scott Sundblad,
Appellant.

Filed June 11, 2018
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Scott County District Court
File No. 70-CR-14-15709

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Reyes, Judge; and Kalitowski,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, §10.
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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Joshua Sundblad was home alone with his baby while mother was away
at work. When mother returned home on a break, she noticed the baby was a shade of
purple and not breathing. The baby could not be revived, and he passed away. After
confessing to several incidents that may have led to injuries to the child, Sundblad was
arrested. Following a two-week bench trial, Sundblad was convicted of two counts of first-
degree assault, third -degree assault, and second-degree manslaughter. On appeal,
Sundblad argues there was insufficient evidence to establish the great-bodily-harm element
for the first-degree assault convictions and that he is entitled to resentencing because one
of the first -degree assault convictions was part of the same behavioral incident as the
second-degree manslaughter conviction. We affirm in part, reverse in part, and remand.
FACTS
On March 11, 2014, appellant Joshua Sundblad and his girlfriend became parents
to a son. Following birth, the baby did not have any medical complications, and everything
indicated that he was a normal, healthy newborn. The baby was still healthy 23 days later
when he had a routine examination. But soon after, his demeanor began to change for
reasons unknown to mother. His mood changed from generally calm to frequently fussy,
and he began to cry more often and spit up through his nose and mouth. Despite mother’s
best efforts, this new demeanor did not go away.
A month later, on May 9, 2014, Sundblad was home alone with the baby. This was
a rare occurrence, as mother was the primary caretaker. Later that day, mother came home
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from work and found Sundblad in bed with their child, who was a shade of purple and not
breathing. Mother called 9 -1-1, and t he Belle Plaine Police Depar tment responded.
Sundblad let the police enter the home and calmly directed the officers to the baby.
Officers found the baby lying on his back not breathing and noticed that his skin was a dark
shade of purple. The officer and a firefighter began chest compressions on the child, but
could not get him to breathe. The baby was pronounced dead a few hours later. Sundblad
told the officer that he went to bed with the baby and was awakened by mother’s screams.
Dr. Mitchel Morey conducted an autopsy the following day. The autopsy revealed
a skull fracture, a metaphyseal wrist fracture, 1 rib fractures, and hemorrhages in the back
of the baby’s head. The injuries were determined to be non-accidental. The autopsy further
revealed a potential timeline for these four injuries. The skull fracture was recent with no
evidence of healing , but the other three injuries exhibited signs of healing and were
anywhere from a week to several weeks old. The autopsy report classified the cause of
death as undetermined, and police officers began their investigation.
In a July 2014 interview with police, officers confronted Sundblad with the injuries
discovered during the baby’s autopsy . Though initially hesitant, and after several self-
admitted fabrications, Sundblad ultimately confided several possible causes of harm. He
told officers about an incident from approximately April 8, around the same time the baby’s
demeanor began to change , where he was bouncing the child on his knee . Sundblad
explained he got frustrated with the baby’s persistent crying, and as a result, he

1 A metaphyseal fracture is a fracture near the end of a bone.
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intentionally hit the child’s head on his knee four consecutive times. Sundblad stated this
caused the baby to lose consciousness and roll his eyes back into his head . Reacting to
this, Sundblad squeezed the baby’s chest hard to the point where he heard t he ribs “pop”
and he felt a deformity.
Sundblad also told officers it was possible he harmed the baby ’s wrist during a
diaper change that also occurred around April 8. He explained that while changing the
baby’s clothes, he aggressively pulled on the child’s sleeve and wrist—causing the baby to
immediately cry.
And on the day the baby died, Sundblad admitted that he was in a bad mood when
he noticed the child needed to have his diaper changed . He picked up the baby , and
aggressively put the child on the changing table . The baby’s head hit the railing on the
changing table, and he became quiet and his eyes rolled back into his head. The child then
began crying. In an attempt to stop the crying, Sundblad wrapped the baby in a blanket
tighter than normal and put him in bed . The record is unclear of the exact timing, but at
some point after wrapping the baby in a blanket, but before mother came home, he noticed
the baby was not breathing and then took a nap . Sundblad awoke to mother’s screams,
who immediately called 9-1-1. From the time Sundblad hit the baby on the changing table,
to when mother arrived home, no more than an hour passed. At a separate meeting the
following week with officers, Sundblad wavered back and forth between admitting and
denying the incidents.
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Sundblad was arrested and charged by way of a six -count indictment: (1) first-
degree murder —past pattern of child abuse;2 (2) first-degree assault — great bodily harm,
for the skull fracture ;3 (3) first-degree assault — great bodily harm, for the brain
hemorrhaging;4 (4) second-degree manslaughter;5 (5) third-degree assault — substantial
bodily harm, for the rib fractures;6 and (6) third-degree assault — substantial bodily harm,
for the wrist fracture.7 The case proceeded to a two-week bench trial in May 2016, where
numerous family members, law enforcement, and medical experts testified.
With Sundblad’s statements to police entered as evidence, the state’s focus at trial
was linking the baby’s injuries to Sundblad’s version of events. For count three’s first -
degree assault, corresponding with the brain hemorrhaging, evidence showed the in jury
was consistent with the knee -bouncing story , as was the timing. And a child -abuse
pediatrician at Children ’s Hospitals and Clinics of Minnesota testified as to the potential
reason for the baby’s demeanor change around the time of this incident: after abusive head
trauma, some babies become fussier and vomit more often. Similar testimony was given
for the other injuries. The metaphyseal fracture to the baby’s wrist was consistent with
someone pulling too hard on the wrist while changing clothes. Th e fractured rib was
consistent with someone squeezing a baby too hard. And the complex skull fracture was

2 In violation of Minn. Stat. § 609.185(a)(5) (2012).
3 In violation of Minn. Stat. § 609.221, subd. 1 (2012).
4 In violation of Minn. Stat. § 609.221, subd. 1.
5 In violation of Minn. Stat. § 609.205(4) (2012).
6 In violation of Minn. Stat. § 609.223, subd. 1 (2012).
7 In violation of Minn. Stat. § 609.223, subd. 1.
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consistent with being thrown onto a changing table and having the head struck. Each
incident’s timing was also consistent with the stage of healing for each respective injury.
Medical experts also testified to the seriousness of the brain hemorrhaging and skull
fracture. The brain hemorrhaging8 included both a subdural and subarachnoid hemorrhage9
toward the back of the baby’s head. A medical expert testified that this type of injury is
found in accidental cases involving “high speed motor vehicle collisions. Crush head
injuries, so like if a television, a big television, fell onto a baby’s head or a dresser.” And
the expert testifie d that the injury changed the substance of the brain itself . The skull
fracture was described as cruciform or cross-shaped instead of linear, and was classified as
complex. Evidence at trial showed that this type of injury can lead to the victim
experiencing a neurological deficit, in addition to head trauma symptoms such as difficulty
eating, digestive issues, and pain.
Sundblad had a forensic pathologist testify on his behalf. The expert testified that
here, the baby was born premature, which can oftentimes lead to brittle bones. He
explained that routine medical procedures or normal daily activities, like picking a baby
up, can cause brittle bones to fracture. The expert also opined that there was no evidence-
based literature to support the notion that either metaphyseal wrist fractures or cross-shaped

8 A brain hemorrhage involves the tearing of vessels or veins that lead to bleeding in the
subdural subarachnoid spaces in the head. Medical testimony described the hemorrhage
here as “significant.”
9 A subdural hemorrhage is located towards the outer portion of the brain, while a
subarachnoid hemorrhage is located closer to the center.
7
skull fractures are indicative of abuse. Lastly, he explained that it was very likely that the
baby suffered a subarachnoid hemorrhage during child birth.
The district court found that mother did not inflict any of the injuries at issue in the
case. It credited the state’s expert witness and did not give any weight or credibility to
Sundblad’s expert witness. The court determined that Sundblad was guilty of count two
first-degree assault for the changing-table incident leading to the skull fracture; count three
first-degree assault for the knee-bouncing incident leading to the brain hemorrhages; count
four second-degree manslaughter as Sundblad’s actions were the prox imate cause of the
baby’s death; and count six third-degree assault for the diaper-changing incident leading
to the wrist fracture. The court determined Sundblad was not guilty of count five third-
degree assault because there was no evidence that Sundblad intentionally tried to harm the
baby when he squeezed the child’s chest and caused the rib fracture, and not guilty of count
one first-degree murder as there was insufficient evidence Sundblad acted with extre me
indifference to human life.
The district court imposed consecutive sentences of 103 months for count two, 153
months for count three, and 57 months for count four. Additionally the court sentenced
Sundblad to 15 months for count six, to be served concurrently with the other counts.
Sundblad appeals.
D E C I S I O N
On appeal, Sundblad argues the two convictions of first -degree assault—the knee-
bouncing incident and the changing -table incident—should be reversed because there is
insufficient evidence for the great -bodily-harm element. Sundblad also argues that if the
8
first-degree assault conviction for the changing-table incident is upheld, then he is entitled
to resentencing because it is a part of the same behavioral incident as the manslaughter
charge.
I. Sufficient evidence supports the bodily-harm element for the two first-degree
assault convictions.

Sundblad contends that the two first-degree assault convictions—the knee-bouncing
incident and the changing-table incident—should be reversed because there is insufficient
evidence to prove the element of great bodily harm. For sufficiency -of-the-evidence
claims, this court reviews the record to determine if the evidence, when viewed in the light
most favorable to the verdict, is sufficient to allow the jury to reach its ve rdict. State v.
Rodriguez, 863 N.W.2d 424, 427 (Minn. App. 2015), review denied (Minn. July 21, 2015).
And we will not disturb the verdict if, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, the fact-finder could
reasonably conclude that the defendant was guilty. Id.
First-degree assault is defined as , “[w]hoever assaults another and inflicts great
bodily harm.” Minn. Stat. § 609.221, subd. 1 (2012). Great bodily harm is defined as
“bodily injury which creates a high probability of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss or impairment of the
function of any bodily member or organ or other serious bodily harm.” Minn. Stat.
§ 609.02, subd. 8 (2012). The district court found this definition of great bodily harm was
satisfied because there was “permanent or protracted loss or impairment of the function of
9
any bodily member or organ” and because there was “other serious bodily ha rm.” We
agree.
Evidence at trial showed that the knee -bouncing incident resulted in brain
hemorrhages that changed the substance of the brain itself, a loss of consciousness , and a
change in the baby ’s demeanor. With respect to the changing -table incident, evidence
established that it led to a complex skull fracture and could lead to a neurological deficit,
in addition to head-trauma symptoms such as difficulty eating, digestive issues, and pain.
This evidence supports the district court’s determination that both of these incidents led to
great bodily harm—which requires permanent or protracted injuries. Minn. Stat. § 609.02,
subd. 8.
Sundblad argues that the district court’s determination—that brain hemorrhages and
a complex skull fracture to a baby constituted great bodily harm —was unsupported
because there was no evidence specifically regarding the permanency or longevity of the
harm. We are not persuaded . When we review sufficiency -of the -evidence claims to
determine if an element is suppo rted by the record, we not only look to the facts in the
record, but also to the “legitimate inferences that can be drawn from those facts” by the
fact-finder. State v. Barshaw, 879 N.W.2d 356, 362 (Minn. 2016). And it was reasonable
for the district court to infer the injuries the baby suffered, including brain hemorrhaging,
a complex skull fracture, loss of consciousness, neurological changes, and head -trauma
symptoms, would constitute permanent or protracted injuries. Sundblad counters with
several unpublished cases where great bodily harm was supported when there was
testimony directly about the permanency of the injury. But none of these cases support s
10
the suggestion that the fact-finder would be unable to find great bodily harm without such
testimony.
Lastly, Sundblad takes issue with the di strict court’s finding that , had the baby
survived, “he would have experienced protracted loss and impairment.” He argues this
was improper because the district court is relying on a hypothetical, namely that had the
baby survived then he would experience the requirements of great bodily harm. We reject
this argument . The court’s “had [the baby] survived” language was not diving into
hypotheticals, but rather stating that the reason the injuries did not lead to protracted harm
was because the child’s life was cut short by Sundblad’s actions.10
In sum, we determine that there was sufficient evidence in the record to support the
district court’s determination that the first-degree assault incidents resulted in great bodily
harm.
II. Resentencing is appropriate because Sundblad was improperly sentenced on
two counts that arose from the same behavioral incident.

Sundblad argues that if there is sufficient evidence to convict him of first -degree
assault for the changing-table incident, which we determine there is, then he is entitled to
be resentenced. He reasons that the first-degree assault was part of the same behavioral
incident as the manslaughter offense of wrapping the baby in a blanket too tightly and

10 For both the first-degree assault charges, the district court also stated that they resulted
in great bodily harm because they contributed to the collection of all of the injuries.
Sundblad contends that it would be improper to let this serve as the basis, because while
all of the injuries taken together may constitute great bodily harm, each incident was
charged sep arately, and therefore each incident needs to result in great bodily harm.
Because we determine that there was sufficient evidence to support the determination that
each incident resulted in great bodily harm, we do not reach this argument.
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failing to notify authorities , and that imposing sentences for both counts is a violation of
Minn. Stat. § 609.035 (2012).11 When the facts are not in dispute, as is the case here, this
court reviews de novo “whether multiple offenses form pa rt of a single behavioral act.”
State v. McCauley, 820 N.W.2d 577, 591 (Minn. App. 2012), review denied (Minn. Oct. 24,
2012).
In analyzing whether multiple offenses arise from a single behavioral incident, the
Minnesota Supreme Court has put forth two separate tests depending on whether any of
the crimes has an intent element. State v. Bauer, 792 N.W.2d 825, 827 -28 (Minn. 2011).
Both Sundblad and the state briefed the crimes of first -degree assault and second-degree
manslaughter as intentional crimes and analyzed this issue using the intentional-crimes
analysis. We therefore assume, without deciding, that these are intentional crimes for
purposes of the single -behavioral-act analysis. Id. at 828 (applying the intentional -crime
analysis when both parties briefed it in that manner). To determine whether two intentional
crimes are part of the same behavioral incident , courts look at: (1) time and place and
(2) whether the crimes were motivated by an effort to obtain a single criminal objective. 12
State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000). The application of this test “depends

11 The state argues that Sundblad waived this issue by not raising it in the district court.
But this is not accurate, as a defendant can raise issues involving an illegal sentence at any
time. See State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007).
12 When one of t he crimes does not contain an intentional component, the proper test is
whether the offenses “(1) occurred at substantially the same time and place and (2) arose
from ‘a continuing and uninterrupted course of conduct, manifesting an indivisible state of
mind or coincident errors of judgment.’” State v. Bauer , 776 N.W.2d 462, 478 (Minn.
App. 2009) (citing State v. Gibson, 478 N.W.2d 496, 497 (Minn.1991)), aff’d, 792 N.W.2d
825 (Minn. 2011).
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heavily on the facts and circumstances” of the case. Bauer, 792 N.W.2d at 828. The state
bears the burden of proving, by a preponderance of the evidence, that the offenses were not
part of a single behavioral incident. State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016).
We first look at the time and place of the two charges. The Minnesota Supreme
Court has stated the difference in time or place must be significant. State v. Bertsch, 707
N.W.2d 660, 666 (Minn. 2006). In State v. Williams , the appellant was charged with
several crimes when he broke into a house, sexually assaulted a victim, tried to drag the
victim to a different room but was only able to get her to the hallway because she resisted,
and eventually choked her to the point of unconsciousness. 608 N.W.2d at 843. In
determining that the crimes constituted a single behavioral incident, the court noted that
merely being in a different room was not sufficient to justify a conclusion that the offenses
were not part of a single behavioral incident. Id. at 842-43. Similarly, here the crimes of
first-degree assault and second-degree manslaughter occurred in nearly the same place and
nearly at the same time. Sundblad’s actions all took place in the same house and within a
short timespan—within approximately an hour . And while the state argues that these
actions occurred in different rooms in the house, Williams instructs us that this alone is not
sufficient. Because the first -degree assault and second-degree manslaughter occurred in
close proximity, both in time and place, this factor weighs heavily toward determining they
are part of a single behavioral incident.
We next look at whether the same criminal objective permeated the conduct in
question. See State v. Spears , 560 N.W.2d 723, 727 (Minn. App. 1997) , review denied
(Minn. May 28, 1997). The state argues that the motives for the two crimes are sufficiently
13
distinct from one another. It points out that the changing-table incident leading to the first-
degree assault conviction came from a place of anger and ag gression, while the events
leading to the manslaughter conviction —the subsequent wrapping of the baby and not
notifying authorities—were done to silence the crying baby. We are not persuaded. Our
fact intensive review of the series of events shows that Sundblad assaulted the baby ,
causing him to cry. And then Sundblad’s subsequent behavior attempted to cover the
consequences of his assault: to keep the baby from crying, Sundblad tightly wrapped the
baby up in a blanket and declined to notify medical authorities.
When addressing a second crime committed to cover or conceal the first crime, the
avoidance-of-apprehension doctrine instructs us that , generally, both crimes are part of a
single behavioral incident when committed substantially contemporaneously. See State v.
Gibson, 478 N.W.2d 496, 497 (Minn. 1991) (“In a series of decisions —the avoidance-of-
apprehension cases —we have held that multiple sentences may not be used for two
offenses if the defendant , substantially contemporaneously committed the second offense
in order to avoid apprehension for the first offense.”). In State v. Hicks , the Minnesota
Supreme Court determined that concealing a body after a homicide was part of the same
behavioral incident as the homicide itself. 864 N.W.2d 153, 160 (Minn. 2015). The court
explained that Minnesota has “long recognized that a defendant’s conduct in concealing a
crime is part of the same behavioral incident as the underlying offense.” Id. Here the facts
closely align with this doctrine and caselaw. Sundblad’s actions of wrapping the baby up
and not alerting authorities were done substantially contemporaneously with—and as a
direct result of—the assault, and were done for purposes of concealment. In light of this
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caselaw, in addition to the conduct occurring close in time and place, the state did not meet
its burden in establishing that they are not part of a single behavioral incident.
Because the district court sentenced Sundblad on both the first -degree assault and
second-degree manslaughter convictions, despite the conduct being part of a single
behavioral incident, we reverse and remand for the district court to resentence Sundblad on
his convictions. 13 We note that during resentencing, the district court may exercise its
broad discretion on sentencing issues to determine the most appropriate new sentence. See
State v. Law, 620 N.W.2d 562, 564 (Minn. App. 2000) (stating district courts have broad
discretion in sentencing decisions), review denied (Minn. Dec. 20. 2000).
Affirmed in part, reversed in part, and remanded.

13 Minnesota Statutes section 609.035 “contemplates that a defendant will be punished for
the ‘most serious’ of the offenses arising out of a single behavioral incident. ” State v.
Kebaso, 713 N.W.2d 317, 322 (Minn. 2006) (quotation omitted). On remand, the district
court should therefore only impose a sentence on the more serious of the two convictions.