This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-173

State of Minnesota,
Respondent,

vs.

Mark Lambert Uran,
Appellant.

Filed October 5, 1999
Affirmed
Short, Judge

Hennepin County District Court
File No. 97105236

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Mark Lambert Uran was charged with first-degree assault in violation of Minn. Stat. § 609.221, subd. 1 (1998). A jury acquitted Uran on the first-degree assault charge, but found him guilty of the lesser-included offense of third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (1998). On appeal from his conviction, Uran argues: (1) the trial court abused its discretion in submitting an instruction for third-degree assault; and (2) the evidence fails to support the jury's verdict. We affirm.

D E C I S I O N

I.

Uran argues the trial court abused its discretion in instructing the jury on the lesser-included offense of third-degree assault. See Minn. Stat. § 609.04, subd. 1 (1998) (defining lesser-included offense). But it is within the trial court's sound discretion to submit a lesser offense to the jury. State v. Leinweber, 303 Minn. 414, 421, 228 N.W.2d 120, 125-26 (1975). A trial court should submit such instructions when there is a rational basis for convicting the defendant on the lesser offense and acquitting on the greater offense. State v. Buntrock, 560 N.W.2d 383, 386 (Minn. 1997).

Although Uran objected to the submission of third-degree assault instructions during trial, the record shows: (1) the victim sustained ten acute facial fractures during the assault and underwent two surgeries to treat his injuries; (2) the first surgery involved the use of metal plates and screws to reposition the victim's facial bones and teeth; (3) the second surgery involved the repair and repositioning of nasal bones to cure the victim's breathing problems; (4) although the victim's nose still is mildly deformed, an expert testified the victim is "happy with the appearance of his nose" and the victim "[b]reathes pretty well;" and (5) the victim now can grind food with his teeth, and future dental work will "take care of" any residual dental problems.

Given these facts, a jury rationally could have convicted Uran of third-degree assault, but acquitted Uran on the first-degree assault charge. See Leinweber, 303 Minn. at 422, 228 N.W.2d at 125-26 (defining test for determining whether to submit lesser offense); compare Minn. Stat. §§ 609.02, subd. 7a (1998) (defining "substantial bodily harm" as bodily injury involving temporary but substantial disfigurement, temporary but substantial impairment of bodily member's function, or fracture of bodily member), .223, subd. 1 (stating third-degree assault involves assault that inflicts substantial bodily harm), with Minn. Stat. §§ 609.02, subd. 8 (1998) (defining "great bodily harm" as bodily injury involving serious and permanent disfigurement, permanent or protracted impairment of bodily member's function, or serious bodily injury), .221, subd. 1 (stating first-degree assault involves assault that inflicts great bodily harm). Moreover, Uran's objections to the submission of lesser-included offense instructions did not require the trial court only to instruct the jury on first-degree assault. See State v. Sperl, 287 N.W.2d 923, 923 (Minn. 1979) (rejecting contention that defendant can prevent submission of lesser-included offense instructions); State v. Pankratz, 238 Minn. 517, 538-39, 57 N.W.2d 635, 647-48 (1953) (holding trial court's decision to submit lesser crime not affected by defendant's objections). Under these circumstances, the trial court did not abuse its discretion by instructing the jury on third-degree assault.

II.

In his pro se brief, Uran also argues the evidence is insufficient to support his conviction. But evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences taken from those facts, a jury could reasonably conclude the defendant committed the crime charged. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses and disbelieved any contrary evidence. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978).

The record shows: (1) after the assault, the victim reported distinct details of the crime to police and stated a man from his neighborhood named "Mark Rand" or "Mike Rand" was responsible for his injuries; (2) the victim later identified "Mark Uran" as his assailant, and positively identified Uran in a police lineup; (3) the victim also named Mike Albrecht as the person with Uran the night of the assault, and Uran's girlfriend testified that Uran knows Albrecht; and (4) although Uran's friend and girlfriend testified Uran was passed out at a party the entire night of the assault, neither party reported this information to the police prior to trial. Given these facts, Uran's conviction is supported by the evidence. See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (noting it is sole function of jury to determine credibility of witnesses, and inconsistencies in state's evidence do not necessarily require reversal of verdict).

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.