State of Minnesota, Respondent, v. Christopher Lee Manska, Appellant.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 CX-99-200

State of Minnesota,
Respondent,

v.

Christopher Lee Manska,
Appellant.

 Filed November 16, 1999
Affirmed
Short, Judge

St. Louis County District Court
File No. K198300156

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

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)

John M. Stuart, State Public Defender, D. Adrian Bryan, Special Assistant State Public Defender, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.

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

 SHORT, Judge

A jury convicted Christopher Lee Manska of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a), (c) (1998) and fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(d) (1998). Manska appeals the trial court's refusal to submit jury instructions on second- and third-degree burglary. We affirm.

  D E C I S I O N

The decision to submit instructions on lesser-included offenses is left to the trial court's discretion. State v. Chambers, 589 N.W.2d 466, 478 (Minn. 1999). But where the evidence warrants an instruction, the trial court must give it. Id. The test for determining whether to submit a lesser-included offense is "whether the evidence provides a rational basis for an acquittal on the offense charged and a conviction on the lesser offense." Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986); see Chambers, 589 N.W.2d at 478 (reaffirming test).

  Manska argues his conviction should be vacated and a new trial ordered because the trial court refused to submit instructions on two lesser-included offenses. We are asked to determine whether the jury could have rationally convicted Manska of either second- or third-degree burglary and rationally acquitted Manska of first-degree burglary.

The record establishes that the victim was in her apartment when Manska entered it, and thus the dwelling was occupied. See Minn. Stat. § 609.581, subd. 3 (1998) (defining "dwelling" as building used as permanent or temporary residence). Given that fact, the jury could not have rationally convicted Manska of second-degree burglary. See Minn. Stat. § 609.582, subd. 2(a) (1998) (prohibiting burglaries of unoccupied dwellings). While a jury could have convicted Manska of both first- and third-degree burglary, there is no rational basis in the record to convict Manska of the lesser offense and acquit him of first-degree burglary. See Minn. Stat. § 609.582, subd. 1(a) (prohibiting burglary of occupied "dwelling"); Minn. Stat. § 609.582, subd. 3 (1998) (prohibiting burglary of "building"). Under these circumstances, the trial court did not abuse its discretion in refusing to instruct the jury on second- and third-degree burglary.

Affirmed.