This opinion will be unpublished and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

C7-99-865

 

State of Minnesota,

Respondent,

 

vs.

 

Mark Leroy Swanson,

Appellant.

 

Filed May 16, 2000

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. 98067009

 

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

 

Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant Mark Leroy Swanson appeals from his conviction of first-degree assault, arguing insufficiency of the evidence.  We affirm.

FACTS

            Early in the morning of July 4, 1998, Swanson and his girlfriend, L.T., returned to their Minneapolis home after drinking at a bar.  Swanson and L.T., who were both intoxicated, began to argue about the house keys.  An eyewitness, T.S., saw Swanson choke L.T. and push her to the ground.  L.T. was knocked unconscious from hitting her head on the curb.

            Minneapolis police officers were dispatched to the scene at approximately 1:30 a.m.  Swanson was placed under arrest, and L.T. was taken to the emergency room at North Memorial Hospital.

            Swanson was charged with assault in the first degree, in violation of Minn. Stat. § 609.221, subd. 1 (Supp. 1997).  A jury found Swanson guilty, and he appeals.

D E C I S I O N

When reviewing a claim of insufficiency of the evidence, we view the evidence “in the light most favorable to the jury’s verdict and assume that the jury believed the state’s witnesses and disbelieved contrary evidence.”  Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  This court must determine whether the facts in the record, and the legitimate inferences that may be drawn from those facts, would reasonably permit the jury to conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).

            Swanson was charged under Minn. Stat. § 609.221, subd. 1 (Supp. 1997), which provides that a person is guilty of first-degree assault if he “assaults another and inflicts great bodily harm.”  “Assault” is defined as the “intentional infliction of or attempt to inflict” physical pain or injury.  Minn. Stat. § 609.02, subds. 7, 10 (1996).  “Great bodily harm” is defined, in part, as

bodily injury which creates a high probability of death * * * or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ.

 

Id., subd. 8 (1996).  Thus the evidence, viewed in a light most favorable to the verdict, must support beyond a reasonable doubt the conclusion that Swanson intentionally inflicted or attempted to inflict physical pain or injury on L.T. and that great bodily harm resulted from his actions.

Swanson does not contest that L.T. suffered great bodily harm.^[1]  But Swanson argues that the testimony of T.S., who witnessed the incident from the porch of her home across the street, was not sufficiently credible to establish that Swanson intended to cause physical harm.  Swanson asserts that T.S.’s testimony was “seriously impeached” and not credible because she wrongly estimated the distance from her porch to the scene of the incident and testified that the incident occurred under a street light, while the light was actually 25 feet away.  But assessing witness credibility is the exclusive province of the jury.  State v. Haala, 415 N.W.2d 69, 78 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).  And a jury, “as the sole judge of credibility, is free to accept part and reject part of a witness’ testimony.”  State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (citation omitted).

            T.S. testified that Swanson shook L.T. violently and pushed her to the ground.  And while a guilty verdict may be based on the testimony of a single witness, State v. Burch, 284 Minn. 300, 313, 170 N.W.2d 543, 552 (1969), we note that the doctor’s testimony that L.T.’s injuries were more severe than he would expect if she had simply fallen is consistent with T.S.’s testimony.  The evidence reasonably permitted the jury to conclude beyond a reasonable doubt that Swanson intended to inflict physical pain or injury upon L.T. and that great bodily harm resulted from his actions.

Affirmed.