This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-2093

State of Minnesota,

Respondent,

vs.

Robert William Jennings,

Appellant.

Filed June 3, 1997

Affirmed

Schumacher, Judge

St. Louis County District Court

File No. K096100655

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, James B. Florey, Assistant County Attorney, St. Louis County Courthouse, 300 South Fifth Avenue, Room 222, Virginia, MN 55792 (for Respondent)

Todd E. Deal, Johnson & Deal, Post Office Box 31, 208 Fifth Avenue South, Virginia, MN 55792

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Robert William Jennings appeals from his conviction and sentence. He claims that the district court erred by accepting his guilty plea to third-degree assault without an adequate factual basis and by failing to depart downward from his presumptive 41-month sentence. We affirm.

FACTS

Jennings and his brother James Jennings were involved in a fight with Charles Howell after entering Howell's house. A witness said that Jennings pulled a knife and held it at Howell while James Jennings beat Howell. Jennings was charged with first-degree burglary, second -degree assault, and third-degree assault. He pleaded guilty to third-degree assault. Based on his criminal history score of six, Jennings received the presumptive 41-month executed sentence.

D E C I S I O N

Jennings challenges the accuracy of his guilty plea. An accurate plea protects a defendant from pleading guilty to a more serious charge than could be proved at trial. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). It is the responsibility of the trial judge to ensure an adequate factual basis for a guilty plea Id. Here, the record relied on by the district court could support a conviction for third-degree assault.

Assault in the third degree requires an intentional infliction of substantial bodily harm. Minn. Stat. §§ 609.02, subd. 10 (1996) (assault is intentional infliction of bodily harm on another); 609.223, subd. 1 (1996) (third-degree assault requires substantial bodily harm). Substantial bodily harm is "injury which involves a temporary but substantial disfigurement." Minn. Stat. § 609.02, subd. 7a (1996).

Jennings admitted that he

and/or James Martin Jennings, one or both of you, while assisting or aiding or being with one another, one or both of you did assault Charles Howell and inflict substantial bodily harm.

The medical records establish that Howell suffered substantial bodily harm; he had swelling and a cut in the area of the right eye that required six stitches. See, e.g., State v. Carlson, 369 N.W.2d 326, 327-28 (Minn. App. 1985) (beating that causes two black eyes, scratches, and bruises on face, head, and neck is substantial bodily harm), review denied (Minn. July 26, 1985).

Here, the district court's use of leading questions and the court file to establish the factual basis for Jennings's plea was not error. While the use of leading questions is discouraged, we are satisfied that there was an adequate factual basis for Jennings's plea. See Ecker, 524 N.W.2d at 717 (court must be reasonably satisfied that adequate fact basis exists).

Jennings also argues that his sentence did not fit his crime and that mitigating factors required a downward departure from the sentencing guidelines. He does not establish, however, the rare circumstances to justify our interference with the district court's refusal to depart. See State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (only rare case warrants reversal of refusal to depart). He now argues that the victim was the aggressor, but he did not establish this fact at either his plea or sentencing hearing. The district court's sentence was not an abuse of discretion. See State v. Ford, 539 N.W.2d 214, 229 (Minn. 1995) (sentencing reviewed under abuse of discretion standard), cert. denied, 116 S. Ct. 1362 (1996).

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.