This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-1982

State of Minnesota,

Respondent,

vs.

Arthur James Chappell,

Appellant.

Filed June 4, 1996

Affirmed

Parker, Judge

Ramsey County District Court

File No. K59560

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Blvd., St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

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

PARKER, Judge

This appeal is from a judgment of conviction and sentence for second-degree assault. Minn. Stat. 609.222, subd. 1 (1994) (assault with a dangerous weapon). Appellant Arthur Chappell argues that the evidence is not sufficient to support the conviction and that it was an abuse of discretion for the trial court to depart from a presumptive sentence. We affirm.

D E C I S I O N

1. Chappell was convicted of assaulting a state trooper by driving away from the scene of a traffic stop with the officer hanging on to the car door, her feet dragging along the shoulder of the road.

Chappell argues that there is insufficient evidence to prove beyond a reasonable doubt that he intended to cause the trooper to fear imminent bodily harm or death. Chappell contends, as he did at trial, that his only intent was to flee the scene.

In reviewing a challenge to the sufficiency of the evidence, this court must view the evidence in a light most favorable to the verdict, assuming the factfinder believed the state's evidence and discredited contrary evidence. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must determine whether, given the facts in the record and the legitimate inferences from those facts, the trial court, in this trial to the court, could reasonably conclude that the defendant was guilty of second-degree assault. See State v. Thunberg, 492 N.W.2d 534, 538 (Minn. 1992).

In Minnesota, assaults have been classified into specific-intent assaults and general-intent assaults. See State v. Fortman, 474 N.W.2d 401, 403 (Minn. App. 1991). In the first category, in which intent to cause fear is sufficient and no physical touching of the victim is required, intent is an "abstract mental element," or a specific intent. State v. Lindahl, 309 N.W.2d 763, 767 (Minn. 1981) (citing State v. Johnson, 243 Minn. 296, 67 N.W.2d 639 (1954)). But,

an assault involving infliction of injury of some sort requires no abstract intent to do something further, only an intent to do the prohibited physical act of committing a battery.

Id.

The state trooper indisputably suffered injuries in the incident, including a concussion with possible basilar fractures, and abrasions. The complaint did not specify whether Chappell was charged with specific-intent assault or general-intent assault. But there is no language in the statutes under which Chappell was charged requiring a specific intent. See Minn. Stat. 609.222, subd. 1 (1994) (requiring "assault" with a dangerous weapon); see also Minn. Stat. 609.02, subd. 10 (1994) (defining "assault" alternatively in terms of general intent or specific intent).

The trooper testified that, while partly in the car, she yelled at Chappell to stop, and he looked at her but kept going. Chappell admitted driving away, taking the trooper by surprise, and admitted that he heard her order him to stop. He testified that he thought the trooper was completely inside the car, but the credibility of this testimony was for the trial court to determine. See State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Both the trooper's testimony and the physical evidence established that her feet were dragging on the ground as Chappell drove away. This evidence, and the evidence of the trooper's injuries, was sufficient to establish that Chappell committed a general-intent second-degree assault.

Even if the state was required to prove a specific intent to cause fear of immediate bodily harm or death, we conclude the evidence was sufficient. The trooper shouted at Chappell to stop, he looked at her, demonstrating an awareness of her peril, and kept going. Chappell's ultimate intent may have been to flee. But that does not preclude an intent to use a means necessary to that end, such as causing the trooper, in fear of immediate bodily harm or death, to jump free of the vehicle.

The trial court file does not include any written findings supporting the finding of guilt, as required by Minn. R. Crim. P. 26.01, subd. 2. Chappell, however, does not challenge this omission. We note only, as a reminder to the trial courts, the necessity of written findings when trial is to the court. See State v. Thomas, 467 N.W.2d 324, 327 (Minn. App. 1991); State v. Taylor, 427 N.W.2d 1, 5 (Minn. App. 1988), review denied (Minn. Sept. 28, 1988).

2. Chappell argues that the trial court abused discretion in imposing a 51-month sentence, a less-than-double durational departure from the presumptive sentence of 34 months. The trial court has discretion to depart from the presumptive sentence when substantial and compelling circumstances exist, and this court will not reverse absent an abuse of discretion. See State v. Best, 449 N.W.2d 426, 427 (Minn. 1989); State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

The trial court may depart upward if the defendant has a prior conviction for criminal sexual conduct or a prior conviction for an offense in which the victim was injured and the current offense is either criminal sexual conduct or an offense involving victim injury. Minn. Sent. Guidelines II.D.2.b.(3). Chappell has a prior conviction for a sexual assault in Texas, and the police report in that case indicates that the victim suffered a personal injury. Thus, the prior conviction satisfied both of the alternative preconditions under II.D.2.b.(3). Moreover, it is undisputed that the trooper in this case suffered personal injuries.

The "prior victim injury" factor may support up to a double durational departure. See State v. Lomax, 437 N.W.2d 409, 410 (Minn. 1989). The trial court did not abuse discretion in departing to one and one-half times the presumptive sentence. Therefore, we need not address whether the offense involved particular cruelty, compared with the typical second-degree assault.

Chappell has filed a pro se supplemental brief arguing the same two issues presented in appellant's brief, which are discussed above. We note only that, although the state has presented evidence that the Texas offense involved victim injury, it was not required to do so because the sexual nature of that offense satisfies that element of the aggravating factor. See Minn. Sent. Guidelines II.D.2.b.(3).

Affirmed.