State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0409

State of Minnesota,
Respondent,

vs.

Cole Lyle Kjellberg,
Appellant.

Filed January 22, 2019
Affirmed
Jesson, Judge

Clearwater County District Court
File No. 15-CR-17-374

Keith M. Ellison, Attorney General, St. Paul, Minnesota; and

Alan Rogalla, Clearwater County Attorney, Bagley, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Michael M cLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Roden berg, Presiding Judge; Hooten, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Cole Kjellberg kicked in the door to the home he sha red with his wife and
two young daughters, yelled at his wife in front of his four-year-old daughter, and pushed

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the same daughter across her bedroom, causing her to fall. Kje llberg was convicted of
domestic assault—intent to cause fear—and child endangerment ba sed on these actions.
In this direct appeal of his child endangerment conviction, Kje llberg argues the evidence
presented at trial was insufficient to prove that substantial harm to his daughter was likely
to occur, as required by the child endangerment statute. We affirm.
FACTS
On September 29, 2017, Kjellberg’s wife called 911 to report th at Kjellberg had
tried to choke her, pushed their daughter across the room, punched walls, and kicked in the
front door. Police quickly arrived at the home, but Kjellberg had already fled. Later that
day, after receiving a tip that Kj ellberg had returned home, po lice found him hiding in a
bedroom closet and arrested him.
Kjellberg was charged with making threats of violence,1 attempted domestic assault
by strangulation,2 child endangerment,3 and two counts of domestic assault. 4 Kjellberg’s
daughter was the alleged victim of the child endangerment and domestic assault—intent to
cause fear—charges and his wife was the alleged victim of the o ther charges. At a court
trial, Kjellberg’s wife and a responding police officer provide d testimony and the
prosecution played an audio tape of the 911 call. The district court found Kjellberg guilty
of domestic assault—intent to cause fear—and child endangerment and not guilty of the
remaining charges. On the child endangerment conviction, Kjellberg was sentenced to 365

1 In violation of Minn. Stat. § 609.713, subd. 1 (2016).
2 In violation of Minn. Stat. § 609.2247, subd. 2 (2016).
3 In violation of Minn. Stat. § 609.378, subd. 1(b)(1) (2016).
4 In violation of Minn. Stat. § 609.2242, subd. 1(1), (2) (2016).

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days in jail, with 289 days stayed for two years and credit for time served of 76 days. On
the domestic assault conviction, Kjellberg was sentenced to 90 days in jail, with credit for
time served.
Kjellberg appeals from the fina l judgment but only challenges h is child
endangerment conviction.
D E C I S I O N
On appeal, Kjellberg argues that his conviction of child endang erment should be
reversed because there was insuffi cient evidence to show that t he incident was likely to
cause substantial harm to his daughter’s physical, mental, or e motional health. For
sufficiency-of-the-evidence claims, this court reviews the evidence to determine whether,
given the facts in the record and the legitimate inferences tha t can be drawn from those
facts, a fact-finder could reas onably conclude that the defenda nt was guilty beyond a
reasonable doubt of the charged offense. State v. Robertson, 884 N.W.2d 864, 871 (Minn.
2016). We view the evidence in the light most favorable to the verdict and assume that the
fact-finder disbelieved any evidence contrary to the verdict. State v. Fox, 868 N.W.2d 206,
223 (Minn. 2015). We will not disturb the verdict if, acting w ith due regard for the
presumption of innocence and th e requirement of proof beyond a reasonable doubt, the
fact-finder could reasonably conclude that the defendant was gu ilty. State v. Ortega, 813
N.W.2d 86, 100 (Minn. 2012).
To obtain a conviction for child endangerment, the state must prove that Kjellberg
“endanger[ed] [his] child’s person or health by: . . . intentio nally or recklessly causing or
permitting [the] child to be placed in a situation likely to substantially harm the child’s

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physical, mental, or emotional health or cause the child’s deat h.” Minn. Stat. § 609.378,
subd. 1(b)(1) (emphasis added). The statute requires “more than ordinary civil negligence”
and “more than a simple deviation from the standard of care.” State v. Tice, 686 N.W.2d
351, 355 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004) (emphasis omitted).
And when we consider whether the situation is “likely” to subst antially harm a child, we
contemplate whether that harm is more likely than not. Id. at 351-52.
Here the district court found that the altercation between Kjellberg and his wife took
place in the presence of their f our-year-old daughter and inclu ded Kjellberg pushing his
daughter into her room. The district court concluded the incident was likely to substantially
harm the child. We agree.
The testimony of Kjellberg’s wife established that Kjellberg pl aced the child in a
“situation likely to substantially h a r m ” t h e c h i l d ’ s p h y s i c a l health. Kjellberg’s wife
described the situation on the morning of September 29, 2017, t estifying that Kjellberg
“started freaking out because [she] did not have breakfast for [their daughter] on the table.”
She then stated that Kjellberg “t hrew a coffee cup” at her, fol lowed her around the house
“screaming and yelling,” put his hands on her neck and “started squeezing,” telling her that
“he had no issue killing her.” Thi s was the situation their fo ur-year-old daughter
encountered when she came out of her room and yelled at Kjellbe rg, “quit hitting my
mom.” Kjellberg’s wife also tes tified to the likely substantia l physical harm when she
explained that Kjellberg then pushed their daughter into her bedroom “and she went flying
in her room and fell on her floor.” Their daughter’s head “alm ost hit her bed,” at which
point the child yelled at Kjellberg “asking him why he was being mean to her and pushing

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her.” And the situation later included Kjellberg kicking the d oor in and stating that “he
had no problem burning the house down with [his wife] and the kids in it.”5
The evidence presented at trial, of an adult man (in the midst of an intense fight with
his wife) intentionally pushing his four-year-old daughter to t he point she went flying
across a room, fell, and almost hit her head, qualifies as a si tuation likely to substantially
harm the child.6
But Kjellberg contends that his conduct towards his daughter was not proved to be
likely to cause substantial harm because the district court’s findings do not credit his wife’s
allegations of strangulation or death threats. The district co urt found Kjellberg not guilty
of making threats of violence, attempted domestic assault by st rangulation, and domestic
assault—intent to inflict physical harm. But a trier of fact i s free to accept part and reject
part of a witness’s testimony, and we defer to the district court’s determinations as to what
is credible because a district court is in a superior position to assess the credibility of
witnesses. State v. Johnson, 568 N.W.2d 426, 436 (Minn. 1997); In re Welfare of L.A.F.,
554 N.W.2d 393, 396 (Minn. 1996); Constans v. Comm’r of Pub. Safety, 835 N.W.2d 518,

5 The wife’s testimony was corroborated by the 911 call played f or the court. During the
call, Kjellberg’s wife stated that Kjellberg had tried to choke her, pushed their daughter
across the room, punched walls, and kicked the front door in.
6 Kjellberg argues that, since the child endangerment statute do es not define substantial
physical harm, we should use th e definition of “substantial bod ily injury” found in the
Minnesota criminal code, which defines it as “bodily injury whi ch involves a temporary
but substantial disfigurement, or which causes a temporary but substantial loss or
impairment of the function of any bodily member or organ, or wh ich causes a fracture of
any bodily member.” Minn. Stat. § 609.02, subd. 7a (2016). If we applied this definition,
Kjellberg’s conduct resulting in a child flying across the room before falling on the floor
would qualify as likely to cause a temporary but substantial impairment.

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523 (Minn. App. 2013). Here, the district court clearly credit ed the relevant testimony of
Kjellberg’s wife on the subject of Kjellberg’s actions towards his daughter.
Kjellberg further argues that th e district court found him not guilty of domestic
assault—intent to inflict physical harm—and therefore did not b elieve that his act of
pushing his daughter caused physical harm. But Kjellberg misst ates the victim of the
domestic assault—intent to inflict physical harm—as being his d aughter, rather than his
wife. The argument is therefore without merit. And if the facts were as Kjellberg claims,
the child endangerment statute does not require that the parent ’s conduct result in
substantial harm—only that substantial harm was likely to occur. Here, as described above,
Kjellberg’s actions were likely to cause substantial physical h arm to his daughter. See
Minn. Stat. § 609.378, subd. 1(b)(1).7
In sum, we conclude that there was sufficient evidence to permi t the fact-finder to
reasonably conclude that Kjellber g’s daughter was placed in a s ituation where she was
likely to be substantially physi cally harmed and to find Kjellb erg guilty of child
endangerment.
Affirmed.

7 Kjellberg also contends that his conviction for child endanger ment should be reversed
because neither his daughter nor any expert provided testimony on whether Kjellberg’s
conduct towards his daughter was likely to result in substantial mental or emotional harm.
But the child endangerment statute requires only that substanti al physical or emotional
harm was likely to result, not both. See Minn. Stat. § 609.378, subd. 1(b)(1). Because we
conclude that there was sufficien t evidence for the fact-finder to conclude that the child
was likely to be substantially harmed physically, we need not r each this issue related to
mental or emotional harm.