author: MEYER, Justice. HANSON, Justice PAGE, Justice

text:
    STATE of Minnesota, Respondent, v. Ardelle Hope MANTHEY, Appellant.
    No. A04-2468.
    Supreme Court of Minnesota.
    March 30, 2006.

      Mark D. Nyvold, St. Paul, MN, for Appellant.
    Mike Hatch, Attorney General, Thomas Ragatz, Asst. Attorney General, St. Paul, MN, Thomas Murtha, Aitkin County Attorney, Aitkin, MN, for Respondent.
   OPINION

MEYER, Justice.

Ardelle Hope Manthey was found guilty by an Aitkin County jury of first-degree premeditated murder of her husband and sentenced to life in prison. On direct appeal, Manthey asks for a new trial, arguing that she was denied her constitutional rights to due process and a fair trial by the admission of hearsay and other prejudicial evidence. She also asserts that the district court erroneously denied her motions for a mistrial based on jury knowledge of her custody status. Finally, she argues that the district court violated her right to be present at all stages of trial when the court discussed with counsel and answered a question from the jury during deliberations. We affirm Manthey’s conviction because we conclude there was no plain error in the admission of unobjected-to testimony, no abuse of discretion in the court’s decision to give a curative instruction instead of granting a mistrial, and no clear error in the court’s post-trial finding that Manthey was present in the courtroom when the court answered a question from the jury.

Francis Manthey was shot and killed in the early morning hours of March 5, 2003, in a basement bedroom of his home in Hill City, Minnesota. The time of death was estimated by the assistant Aitkin County medical examiner to be around 3 a.m. He was shot at close range in the back of the head and upper arm with a handgun he owned and kept loaded at his bedside. No fingerprints were recovered from the gun and DNA testing showed only the presence of Francis’ DNA on the gun.

The investigation into his murder proceeded for more than a year before the state charged Francis’ wife, Ardelle Hope Manthey, with first-degree premeditated murder. The state’s theory of the case was that Manthey was in debt because of her passion for gambling and the motive for taking her husband’s life was to collect on a life insurance policy, Francis’ retirement account, and sole title to the family home.

The state developed evidence of Man-they’s gambling activities, introducing volumes of financial information, including ATM withdrawal records, bank account records, and casino activity logs. Manthey regularly gambled at casinos and cashed checks or used ATM’s at casinos and elsewhere. Bank records showed that during the four years before Francis’ murder, Manthey periodically cashed several checks a day at a casino. The state argued that the financial records show that Manthey was gambling far more than the one gambling event per week she admitted, and was spending far more than she was receiving in Social Security payments.

According to the state, Manthey had used her own retirement account to pay off creditors and was regularly paying overdraft and returned check fees. Manthey’s bank cancelled her cash card in late 2002 for excessive withdrawals without sufficient funds. At the time of Francis’ death, the Mantheys had three judgments against them for unpaid credit card debt. Francis had an IRA account, but Manthey did not have access to it when Francis was alive.

The state presented testimony that Manthey concealed her gambling losses from her husband. Manthey once took a trip to Las Vegas without Francis’ knowledge. Lisa Casper, Manthey’s daughter, testified that she knew her parents had financial problems, and that Manthey borrowed money from her and her siblings to gamble. Casper also testified that Man-they borrowed against the family home md concealed it from Francis.

Francis was 69 years old at the time of ds death and had been married to Man-hey for almost 52 years. An accidental eath insurance policy named Manthey as eneficiary and included a provision that ie face value would be reduced by half after Francis turned 70 in July 2003. The state argued that the timing of Francis’ death in March 2003 was intended to maximize the payout on the insurance policy.

Manthey also was the beneficiary of Francis’ retirement account and would receive more than $75,000 after his death. Manthey would also inherit the family home. Lisa Casper testified that Manthey took $300 out of sympathy cards she had received after Francis’ death, but never bothered to read those cards.

After Francis’ death in March 2003, Manthey paid off her credit-card debt, paid for a grandchild’s school tuition, bought a gravestone for herself and Francis, bought a car, furnished a new apartment for herself, and paid her grandsons to help her move. Casino records showed an increase in Manthey’s gambling activity immediately after Francis’ death; Man-they explained that she gambled after Francis’ death to “escape.” Manthey’s monthly Social Security checks increased after Francis’ death from $614 to $975 (total Social Security income for the couple went down, though, from $1,469 to $975).

The state established through circumstantial evidence that Manthey had exclusive access to the house the night her husband was murdered. There were no indications of a break-in — the basement door had not been forced, the windows were untouched, the rooms were not ransacked, and none of the watches or guns that Francis collected were found to be missing.

Donald Larson, who delivered the newspaper to the Mantheys, testified that the morning of the murder when he went by the Manthey home at approximately 4:35 a.m., he saw a light on in both the basement and main floor, which was unusual. Manthey first called for help at approximately 7 a.m. when she telephoned her neighbors, George Casper and his mother.

When Casper arrived at the Manthey home after the murder, he checked on Francis in the basement bedroom and found him lying on the floor. He touched Francis’ arm and noticed his body was cold. Casper then left the Manthey home through the main entry door and ran to the nearby home of Daniel Kingsley, a trained emergency responder. Casper returned to the Manthey home and Kingsley arrived minutes later. According to Kingsley, when he walked toward the Manthey residence the only tracks he saw in the snow were made by Casper when he walked to Kingsley’s house and back to the Manthey house. Kingsley tried to enter the house through the basement door, but it was locked.

Casper unlocked the basement door for Kingsley. Kingsley examined the body and then made a phone call to the police. He and Casper then discovered Francis’ wallet lying at the bottom of the basement stairs; Manthey said she had not seen it when she first went downstairs and discovered Francis. No cash was found in the wallet, though Manthey testified that she had cashed Francis’ Social Security check two days before his death and had given him $600 in cash.

Other evidence indicated that almost 100 internet visits or searches related to the word “poison” had been conducted on the computer at the Manthey residence; records of some of the searches had been deleted.

Manthey testified in her own defense and denied having killed her husband. She theorized that Francis was killed by an intruder. She had placed a quilt over the grate between the first floor, where she slept, and the basement so that the lights on the first floor would not disturb Francis. On the morning of the murder, she went downstairs, straightened a blind on the basement door that was crooked, locked the door, picked up a flashlight that had fallen off a shelf, checked the corn stove heater, then noticed Francis’ body, but did not touch him. She testified that she knew he was dead when she saw him lying next to his bed. She theorized that the killer was an intruder who needed money and used Francis’ gun to kill him when he woke up. She explained that she had not heard the gunshots because the previous night she had taken two Percocet pain pills and, as a result, had experienced the best night’s sleep she had in a while. A Bureau of Criminal Apprehension toxicology report confirmed that Manthey had taken Percocet on March 4-5, 2003.

Manthey knew that Francis kept a loaded gun at his bedside. Francis had shown her how to shoot the gun the summer before his death, though she testified that she had never actually fired it. Manthey claimed that she was not physically capable of shooting the murder weapon because she had chronic pain in her dominant right wrist and shoulder, and the gun was too heavy for her to lift. A surgeon who operated on her shoulder and another doctor who operated on her wrist/thumb in July 2003 testified that the surgeries were designed to relieve severe pain.

The defense produced evidence that those who knew Francis knew that he carried hundreds and even thousands of dollars in cash, that he stashed cash in his freezer at home, and that he kept numerous guns in the house. A person from the community testified that she saw a stranger at the home of one of the Mantheys’ grandsons the night before Francis was killed. She said the man kept his hat pulled over his face and that after he left she never saw him again. Donald Larson, the newspaper carrier, testified that he saw a stranger about five blocks from the Mantheys’ house at around 5 a.m. on March 5. Larson told police about the individual.

Manthey voluntarily gave the police a number of statements and cooperated throughout the investigation even after police told her several weeks after Francis’ death that they believed her to be “involved in this” and read her a Miranda warning. She voluntarily gave police blood and urine samples on the day of the murder. During the time of the investigation into the murder, she called the lead investigator on the case twice to let him know that she was going out of town and again to let him know that she had returned.

Manthey and others testified that before Francis’ death she gambled roughly once a week, and that on any given day it was her habit to stop gambling when she had used up the money she had brought to gamble. Manthey testified that she used her player’s card every time she went to the casino; casino records tracking her card use indicate losses smaller than those shown by the Mantheys’ banking records. Kathleen Casper, Manthey’s friend and neighbor, testified that she never loaned Manthey money. Iralee “Dee” Clarke, Manthey’s sister, testified that any time Manthey borrowed from her (or vice ver-sa) the funds were paid back quickly. Manthey also testified that Francis never said that she could not go gambling, and that she had worked and saved her own money. She further testified she had never initiated a claim for the accidental death policy because she did not consider his death to be “accidental” and that she did not know about the death benefit on Francis’ IRA before his murder.

Manthey explained that she had used the computer to research mushrooms in her yard to ensure that they were not poisonous and that grandchildren and others had used the computer as well. The BCA examination showed that websites pertaining to mushrooms had been visited.

The state used Manthey’s statements to police to attack her credibility and undermine her theory of the case. In her first discussion with police the morning of the murder, she said she had had the best night’s sleep she had in a long time. Later that day, she told police that she recalled waking up when she heard a loud noise at approximately 4 a.m. (which is when her medication usually wore off). She described the noise as sounding like a loud clapping on the side of the house. But she did not investigate.

The jury returned its guilty verdict on September 24, 2004. This is Manthey’s direct appeal.

I.

Manthey argues that her constitutional rights to due process and a fair trial were infringed upon by the admission at trial of statements that she alleges were hearsay. On appeal, Manthey takes issue with six statements admitted in the course of the state’s direct examination of two of its witnesses, Lisa Casper and Mike Casper, Manthey’s daughter and son-in-law:

1. “Well, ma went gambling last night.” (Mike Casper);
2. “She left me a hundred dollar bill on the table.” (Mike Casper);
3. Francis may have said, “Damn, she went gambling.” (Mike Casper);
4. Francis was aware of Manthey’s gambling problem and that sometimes her gambling was OK and sometimes he did not like it. (Lisa Casper);
5. He was not going to let Manthey spend his retirement funds gambling. (Lisa Casper);
6. Francis said his kids would be glad to get some money when he passed. (Lisa Casper).

The statements were offered by the state to establish Francis’ negative attitude about Manthey’s gambling. Counsel for Manthey did not object to any of the statements.

In the absence of an objection, we may review the admission of evidence for plain error. Minn. R.Crim. P. 31.02. The plain error standard requires the defendant to show (1) error (2) that was plain and (3) that affected the defendant’s substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn.2002) (citing State v. Chiller, 583 N.W.2d 736, 740 (Minn.1998)). We have noted that to satisfy the third element, a defendant must show prejudice that forms the basis for a reasonable likelihood the error substantially affected the verdict. Id. at 688 (citing State v. Smith, 582 N.W.2d 894, 896 (Minn.1998)). If all three conditions are satisfied, we proceed to determine whether it is necessary to address the error to ensure the fairness and integrity of the judicial proceedings. State v. Vick, 632 N.W.2d 676, 685 (Minn.2001) (citing Griller, 583 N.W.2d at 740).

To constitute plain error, “the trial error must have been so clear under applicable law at the time of conviction, and so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object — and thereby present the trial court with an opportunity to avoid prejudice— should not forfeit his right to a remedy.” State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999) (quoting Rairdon v. State, 557 N.W.2d 318, 323 (Minn.1996)).

Hearsay is defined in our rules of evidence as an out-of-court statement offered as evidence to prove the truth of the matter asserted. Minn. R. Evid. 801(c). The rules bar the admission of hearsay unless it fits under one of a number of exceptions, which generally reflect the recognized reliability of statements made in certain situations. See Minn. R. Evid. 802 (barring admission of hearsay), 803 (listing exceptions to the hearsay exclusionary rule), and 804 (same). The number and variety of exceptions to the hearsay exclusion make objections to such testimony particularly important to the creation of a record of the trial court’s decision-making process in either admitting or excluding a given statement. The complexity and subtlety of the operation of the hearsay rule and its exceptions make it particularly important that a full discussion of admissibility be conducted at trial.

The six statements at issue related to Francis’ feelings about Manthey’s gambling. We do not conclude that the statements were clearly or obviously inadmissible hearsay. In the absence of an objection, the state was not given the opportunity to establish that some or all of the statements were admissible under one of the numerous exceptions to the hearsay rule.

Even if it can be said that the statements were each inadmissible hearsay, it is not clear that Manthey was prejudiced by their admission. The statements are not convincing evidence of Francis’ negative feelings about Manthey’s gambling habit and, therefore, we cannot say that their evidentiary value was particularly strong. We conclude that it was not clear that the six statements were inadmissible hearsay and, in any event, the evidentiary value of the statements was so weak that their admission did not likely affect the verdict. We deny relief to Manthey under our plain error test.

II.

Manthey asserts that her right to a fair trial was denied because the state elicited irrelevant and prejudicial evidence that Manthey had sex with Francis to appease him so that she could go gambling. On direct examination, the prosecution asked Lisa Casper if she was aware of anything Manthey would do to appease Francis so she could go gambling. Casper testified in response that Manthey would have sex with Francis. Manthey objected to the statement as speculative and lacking foundation. The court responded, “Sustained unless you can lay further foundation.” The prosecution attempted to lay further foundation but was unsuccessful. Manthey did not move to strike Casper’s answer, seek a curative instruction, or move for a mistrial. The court never formally admitted the appeasement statement, but it also never struck it or offered a curative instruction.

Manthey’s argument on appeal is that the mere fact that the jury heard the objectionable answer entitles her to a new trial because the testimony was so inflammatory and improper that it substantially affected the verdict. We do not agree. The question is whether Manthey can meet her burden under the plain error test. As we recently stated in State v. Washington,

[b]ecause [appellant] did not move to strike, seek a curative instruction or request a mistrial, the question becomes whether plain error occurred when the district court, having sustained the objection to the testimony * * *, did not act sua sponte to limit the testimony’s impact by providing a curative instruction or to eliminate that impact by granting a mistrial.

693 N.W.2d 195, 205 (Minn.2005). As we noted in Washington, courts are not required or even advised to make such affirmative intrusions into proceedings. Id. We conclude that plain error did not occur because the failure of the court to act sua sponte in reaction to the objectionable testimony did not affect a substantial right requiring a new trial. Again we determine that the evidence did not present such a danger of unfair prejudice that its admission, circumscribed as it was, amounted to plain error.

III.

Manthey made mistrial motions in response to two separate references to her custody status. The first occurred during cross-examination of Lisa Casper, when defense counsel asked, “So by your testimony for the last two years your mother had been answering the phone?” Lisa responded, “No. She’s been in jail.” Defense counsel objected, and Mike Casper, Lisa’s husband, yelled, “Let’s get out of here,” from the gallery. Manthey said, “She’s telling the truth, Mike. Leave her.” Man-they’s counsel moved for a mistrial, arguing that a curative instruction would be inadequate. The court did not specifically rule on the mistrial motion, but told the jury to disregard Lisa Casper’s comment and those of anyone other than a witness or attorney. The court then instructed the jury:

No member of the jury should in any way permit himself or herself to be prejudiced against the defendant because an indictment has been filed against the defendant, or because the defendant has been arrested, or because the defendant has been placed on trial by the ordinary process of law.

The court then instructed the jury on the presumption of innocence.

The second reference to Manthey’s custody status occurred before closing arguments. The bailiff informed the court that a juror had told him on a cigarette break, in front of two other jurors and an alternate, that she had learned from her supervisor at work that the jury would be getting the case soon. The supervisor had heard this from one of the juror’s coworkers who was in jail with Manthey. This information was relayed to the parties by the court. Defense counsel made a motion for a mistrial. The court denied the motion, and indicated that the presumption of innocence instruction again would be given during final instructions. The court noted on the record that counsel for the state and Manthey agreed not to voir dire the jurors or to inquire further.

This court reviews a trial court’s denial of a motion for a mistrial for abuse of discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn.1998). The trial judge is in the best position to determine whether an outburst creates sufficient prejudice to deny the defendant a fair trial such that a mistrial should be granted. See State v. Graham, 371 N.W.2d 204, 207 (Minn.1985). “[A] mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different” if the event that prompted the motion had not occurred. Spann, 574 N.W.2d at 53 (citing State v. Clobes, 422 N.W.2d 252, 255 (Minn.1988)).

We have found that references to prior incarceration of a defendant can be unfairly prejudicial. See State v. Hjerstrom, 287 N.W.2d 625, 627-28 (Minn.1979); see also Ture v. State, 353 N.W.2d 518, 524 (Minn.1984) (finding that testifying police officer’s reference to questioning defendant in another incident justified a curative instruction but not a mistrial). We have not enunciated a general rule that it is prejudicial for the jury to learn that a defendant is in jail for the crime for which he or she is on trial. Nonetheless, Lisa Casper’s reference to Manthey’s incarceration arguably damaged the presumption that Man-they was innocent until proven guilty. We find that whatever prejudice was created was not so fundamental or egregious as to require a mistrial and was effectively mitigated by the court’s instructions. The jury was instructed to disregard Lisa Cas-per’s comment and the court specifically blunted the impact of the comment by instructing the jury not to be prejudiced by Manthey’s arrest. See Long v. Humphrey, 184 F.3d 758, 761 (8th Cir.1999) (discussing curative alternatives less dramatic than mistrial); State v. Budreau, 641 N.W.2d 919, 926 (Minn.2002) (stating our presumption that juries follow instructions).

We have recognized that the state has an obligation to caution its witnesses against making prejudicial testimony. See State v. Underwood, 281 N.W.2d 337, 342 (Minn.1979). Nevertheless, we cannot conclude that the state failed in its obligation. Casper’s potentially prejudicial comment was made during intense, emotional cross-examination, and does not appear to have been prompted by a desire to prejudice Manthey. More specific instructions than those given by the district court could have had the effect of drawing attention to Casper’s reference to Manthey’s incarceration. See State v. Haglund, 267 N.W.2d 503, 506 (Minn.1978) (discussing the idea that a specific curative instruction would emphasize an inadvertent prejudicial reference). The second reference to incarceration, by the juror to the bailiff, confirmed that at least one juror knew Manthey was in jail pending the outcome of the trial. Generally, jurors’ knowledge that a defendant is in custody pending the outcome of a first-degree murder trial is “likely to [have been] seen for just what it is- — standard law enforcement practice.” State v. Shoen, 598 N.W.2d 370, 378 (Minn.1999) (referring to a jury seeing defendant in restraints during transport to and from court). Further, in the absence of voir dire, we have no basis to conclude that the jury’s decision was improperly prejudiced by the knowledge that Manthey was in custody. We do not find an abuse of discretion in the district court’s decision to deny the-motion for a mistrial and give a curative instruction because there was no reasonable probability that the references affected the outcome of the trial.

IV.

During jury deliberations, the jury sent a note to the court stating, ‘We would like to know who pulled the covers up over the sheets on Francis’s bed the morning of 3-5-03.” The court reconvened to discuss the question and both attorneys agreed that the jury members should be told to rely on their memory of the testimony. Manthey does not contend that the court gave the jury the wrong answer. Rather, she asserts that the court violated her constitutional right to be present at all stages of her trial. Minn. R.Crim. P. 26.03, subd. 1; State v. Thompson, 430 N.W.2d 151, 152-53 (Minn.1988). Neither the transcript nor the court administrator’s minutes of the proceedings affirmatively establishes that Manthey was in the courtroom during these discussions.

This court has stated that “a trial judge should have no communication with the jury after deliberations begin unless that communication is in open court and defendant is present.” Ford v. State, 690 N.W.2d 706, 712 (Minn.2005). Whether a defendant was present for a jury question and answer is a factual determination by the trial court that this court reviews for clear error. State v. Inman, 692 N.W.2d 76, 79-80 (Minn.2005) (citing State v. Thaggard, 527 N.W.2d 804, 807 (Minn.1995)).

In response to Manthey’s contention that the record did not establish that she was present in the courtroom, the state made a post-trial motion to supplement the record. Minn. R. Civ.App. P. 110.05; Minn. R.Crim. P. 29.01, subd. 2. The court received and considered the affidavits of the state’s two trial attorneys averring that Manthey was present in the courtroom during the jury communications. Manthey did not submit any evidence that she was not present in the courtroom. The court made the following finding of fact: “Based on the evidence, the court finds that Defendant Ardelle Manthey was present in the courtroom when the question was presented and answered by the court on September 24, 2004.” Given the lack of an evidentiary basis for the challenge to the finding, we conclude that the court did not clearly err in its determination.

Affirmed.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

HANSON, Justice

(concurring).

Although I agree with the conclusion of the majority that the admission of the six hearsay statements was not prejudicial, I disagree with the majority’s suggestion that the statements were not clearly or obviously inadmissible hearsay.

The six statements were all out-of-court statements supposedly made by the victim. They were apparently offered to prove that Manthey had a motive to kill the victim because the statements suggest that the victim objected to Manthey’s gambling and would not let Manthey spend his separate assets gambling. If they were not offered for this purpose, they would have no relevance to the case. Thus, they were offered to prove the truth of what was implied in the victim’s statements, that the victim objected to Manthey’s gambling. As such, they plainly meet the definition of hearsay and are inadmissible unless they fall into one of the hearsay exceptions.

Although the application of the hearsay rule and its exceptions can sometimes be complex, it was not complex here. The state’s brief, written after taking the opportunity to reflect on the issue, does not present any sound reasons for admitting these statements. First, the state suggests that the statements were offered to prove the victim’s state of mind, relying on the hearsay exception in Minn. R. Evid. 803(3). But the state fails to demonstrate how the victim’s state of mind could have any relevance to Manthey’s motives unless there was evidence that connected Man-they to these statements. As the comments to Rule 803(3) explain:

The rule makes it clear that hearsay statements probative of the declarant’s state of mind or emotion are not made inadmissible by the hearsay rule. The more difficult evidentiary problems arise in the determination as to whether state of mind is relevant to the issues in the lawsuit.

Minn. R. Evid. 803(3) comm. cmt. — 1989. Because the victim’s state of mind could only be relevant to Manthey’s motives, and there is no evidence that these hearsay statements were communicated to Man-they, the statements are both irrelevant and inadmissible hearsay.

The state suggests that some of the statements might have been shown to be excited utterances, admissible under Minn. R. Evid. 803(2). But the state fails to show that the circumstances under which the statements were supposedly made would qualify them under that exception. The exception requires that the statement relate to “a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The testimony does not suggest that there was anything startling about the fact that Manthey had gone gambling. Thus, even if the state could have shown that the victim was excited when he made the statements, it could not have shown that the excitement was caused by a startling event or condition.

PAGE, Justice

(concurring).

I join in the concurrence of Justice Hanson.

      . Six interviews were recorded and admitted at trial; others were not recorded but were referenced at trial.


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Anthony Phillip SCACCHETTI, Appellant.
    No. A03-301.
    Supreme Court of Minnesota.
    March 30, 2006.

      John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN, Donald F. Ryan, Crow Wing County Attorney, Brainerd, MN, for Respondent.
   OPINION

PAGE, Justice.

Appellant Anthony Phillip Scacchetti was convicted of first-degree criminal sexual conduct, malicious punishment of a child, and third-degree assault against his girlfriend’s three-and-one-half-year-old daughter, R.J. At trial, the court determined that the child victim was incompetent to testify and, as a result, the state was allowed to introduce into evidence statements the victim made during medical assessments conducted by a pediatric nurse practitioner for Midwest Children’s Resource Center (MCRC). Scacchetti appealed his conviction, and the court of appeals affirmed. On appeal to this court, we remanded to the court of appeals for a determination of whether the statements the victim made to the pediatric nurse practitioner during the assessments were admissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). On remand, the court of appeals held that the statements were not testimonial under Cratuford because no reasonable three-year-old would anticipate the use of the statements in a future trial and again affirmed. Because we conclude that the statements made by the victim to the pediatric nurse practitioner during the assessments are not testimonial for the purposes of Crawford, we affirm.

In May 2002, Scacchetti began living with his girlfriend, K.J., and her daughter, R.J. Before Scacchetti moved in, K.J.’s mother or K.J.’s ex-boyfriend cared for R.J. while K.J. was at work. After Scac-chetti had lived with K. J. for a few weeks, Scacchetti began caring for R.J. while K.J. was working.

Soon thereafter, K.J. started noticing physical changes in R.J. On one occasion, R.J. told K.J. that Scacchetti had spanked her with a belt, which Scacchetti admitted doing. Shortly after that, K.J. noticed R.J. had marks on her face, which Scac-chetti claimed were from R.J. falling down the stairs. R.J. could not explain how the injuries occurred. During May and June of 2002, K.J. noticed that R.J. had become clingy to her and distant toward Scacchet-ti. In fact, R.J. began to tell K.J. she did not want to be left alone with Scacchetti.

On June 24, 2002, K.J. returned from work to find that R.J.’s body had multiple bruises and burn marks. In addition, her face and one ear were swollen. Scacchetti told K.J. that R.J. had fallen in the bathtub. K.J. also found a number of bloody items, including underwear and a pillowcase belonging to R.J., and a washcloth: R.J. could not explain what had happened to her. K.J. did not go to work the next two days because she did not want to leave R.J. alone with Scacchetti.

On June 26, 2002, K.J. brought R.J. to a Saint Paul woman’s shelter, where shelter employees suggested K.J. take R.J. to the hospital to be examined. On June 27, K.J. took R.J. to Minneapolis Children’s Hospital, where R.J. told K.J. that Scacchetti had touched her “down there” and that it hurt when she urinated. The doctor who examined R.J. was concerned that her gen: ital exam had indicated an abnormal hymen and called a pediatric nurse practitioner, Laurel Edinburgh, from MCRC to examine R.J.

MCRC is a clinic that assesses children for possible physical abuse, sexual abuse, and neglect. Their assessment consists of an interview and physical examination of the child. After an assessment, Edinburgh links the family with appropriate services. Edinburgh testified that she has seen over 500 patients and has testified in court about 15 to 20 times. She uses a particular protocol when assessing children, which she used when assessing R.J. Dr. Carolyn Levitt, the founder of MCRC, testified at trial regarding the protocol Edinburgh used. Dr. Levitt explained that the protocol is “pretty much based on what I would be doing if I were evaluating a child * * * who had abdominal pain and appendicitis, but it’s a medical protocol and it specializes in getting specific details from the child.” According to Dr. Levitt, the protocol consists of a verbal interview, an external exam, and a colposcopic exam of the child’s genitalia. In explaining why the assessments are videotaped, Levitt stated, “There are many children seen at our center who have videotaped interviews so that the evaluations are then reviewed. The videotape is reviewed by me, the videotape colposcopic examination is reviewed by me.”

Edinburgh assessed R.J. two times. At the first assessment, which took place at the hospital on June 27 and was not videotaped, Edinburgh first met with K.J. to gather background information and then met with R.J. to ask questions regarding her injuries. She then did a physical exam, during which K.J. was present. While examining R.J.’s anal and vaginal area, Edinburgh asked R.J., “did anything ever happen to this area right here?” to which R.J. responded “yes.” Edinburgh asked ‘What touched there?” and R.J. responded “Tony’s pee-pee.” As part of the exam, Edinburgh found an oblong-shaped bruise next to R.J.’s anal opening.

Edinburgh conducted a follow-up assessment of R.J. the next day. That assessment took place in the MCRC office in Saint Paul. The office has a typical doctor’s office layout, with a waiting area and two exam rooms. The assessment took place in one of the exam rooms and was videotaped. At one point during the assessment, R.J. became distraught-and asked for her mother.

Edinburgh’s follow-up assessment followed the standard protocol. Incidentally, during the assessment, R.J. described how Scacchetti had slapped her on her cheek and spanked her with a big belt and a brush. After further questioning, R.J. indicated that Scacchetti had touched her anus (where she “goes poop”) with his hands. R.J. stated, “he put his hands right in there” while pointing up with one of her fingers. The following questions and answers ensued:

Q: Did Tony touch here with his pee-pee?
A: Yeah.
Q: Yeah. What did his pee-pee do there?
A: Him — when he was mad in there.
Q: When he was mad there?
A: Yeah. When he was mad at me.
Q: When he was mad at you?
A: Yeah.
Q: What did he do with his pee-pee there?
A: I don’t know.
Q: You don’t know?
A: Him put in the corner.
Q: What happened to your clothes? What did he do with your clothes?
A: He take them off.
Q: He took them off?
A: Uh-huh.
Q: Okay. What did Tony do with his clothes?
A: Um, he took them — his off too.
Q: He took his off too?
A: Uh-huh.

The court conducted a hearing to determine whether R.J. was competent to testify. The hearing took place with the judge in normal attire. During the hearing, R.J. was unwilling to orally answer questions asked of her. As a result, the court found that R.J. was incompetent to testify and was therefore unavailable. Because R.J. was unavailable, Scacchetti had no opportunity to cross-examine her.

Edinburgh testified at trial regarding both of her assessments of R.J. and statements R.J. made during those assessments, and the videotape of the second assessment was shown to the jury. She also testified that R.J., as a three-and-one-half-year-old, had sexual knowledge that was beyond her age,- and that based on Edinburgh’s experience R.J. was both physically and sexually abused. In explaining the basis for that conclusion, Edinburgh stated:

I use all of my knowledge of how children disclose, out of the statements that they made during [the] interview, out of what a parent tells me about a medical history, about any histories of trauma, and my physical exam, and I put those, all of those sort of factors go together when I’m making a diagnosis that a child was sexually abused.

Scacchetti testified and admitted spanking R.J. with a belt, but denied sexually abusing her.

On December 12, 2002, a jury found Scacchetti guilty of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1 (2004), malicious punishment of a child in violation of Minn. Stat. § 609.377, subd. 4 (2004), and assault in the third degree in violation of Minn. Stat. § 609.223, subd. 3 (2004). Scacchetti appealed his conviction and the court of appeals affirmed on June 1, 2004. State v. Scacchetti, No. A03-301, 2004 WL 1191666 (Minn.App. June 1, 2004). Crawford was decided while Scacchetti’s appeal was pending. The court of appeals did not consider the Crawford decision when it affirmed Scacchetti’s conviction. Scacchet-ti petitioned this court for review.

We granted the petition and remanded to the court of appeals for reconsideration in light of Crawford. On remand, the court of appeals affirmed, determining that the statements R.J. made to Edinburgh were not testimonial for purposes of Crawford. State v. Scacchetti 690 N.W.2d 393, 397 (Minn.App.2005). Scacchetti again petitioned for review and again we granted the petition.

The Sixth Amendment to the United States Constitution ensures a criminal defendant’s right “to be confronted with the witnesses against him.” Until Crawford was decided, Confrontation Clause issues were determined according to Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts, an unavailable witness’s statements were admissible if the statements bore adequate indicia of reliability. Id. at 66, 100 S.Ct. 2531. The evidence was reliable if it fell within a firmly rooted hearsay exception or bore “particularized guarantees of trustworthiness.” Id. In Crawford, the Supreme Court rejected the Roberts test, explaining that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Crawford, 541 U.S. at 50, 124 S.Ct. 1354. Therefore, when a witness is unavailable, testimonial statements made by the witness are inadmissible at the defendant’s trial unless the defendant had an opportunity to cross-examine the witness. Id. at 53-54, 124 S.Ct. 1354. The rule “applies to ‘witnesses’ against the accused — in other words, those who ‘bear testimony.’ ” Id. at 51, 124 S.Ct. 1354. The Court explained that testimony is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. Thus, the determination of whether a statement violates the Confrontation Clause is dependent upon whether that statement is testimonial.

Our first post-Craioford Confrontation Clause case was State v. Wright, 701 N.W.2d 802 (Minn.2005), in which we held that statements made to a 911 operator and statements made to police officers during a field investigation were not testimonial. In doing so, we concluded that statements the Supreme Court has not explicitly defined as testimonial “are best analyzed in terms of the particular facts and circumstances under which they are made in order to determine their testimonial or nontestimonial nature.” Id. at 814.

We set forth eight considerations relevant to determining whether a declarant’s statements are testimonial:

(1) whether the declarant was a victim or an observer; (2) the declarant’s purpose in speaking with the officer (e.g., to obtain assistance); (3) whether it was the police or the declarant who initiated the conversation; (4) the location where the statements were made (e.g., the de-clarant’s home, a squad car, or the police station); (5) the declarant’s emotional state when the statements were made; (6) the level of formality and structure of the conversation between the officer and declarant; (7) the officers’ purpose in speaking with the declarant (e.g., to secure the scene, determine what happened, or collect evidence); and (8) if and how the statements were recorded.

Id. at 812-13.

In State v. Bobadilla, we again applied the eight factors considered in Wright for determining whether a declarant’s statement is testimonial. 709 N.W.2d 243, 250 (Minn.2006). We clarified that, of the factors, the central considerations are “the purpose of the statements from the perspective of the declarant and from the perspective of the government questioner,” in other words, “whether either a declar-ant or government questioner is acting, to a substantial degree, in order to produce a statement for trial.” Id. at 250, 252. We noted that the other six factors are probative of those two. Id. at 250.

In Bobadilla, we held that statements made by a three-year-old child sexual abuse victim in an interview with a county child protection worker with a law enforcement officer present in accordance with MinmStat. § 626.556, subd. 10(a) (2004), were not testimonial. Bobadilla, 709 N.W.2d at 257. The victim in that case informed his mother that his uncle had touched him inappropriately. Id. at 246. The mother took the victim to the hospital, where law enforcement was contacted. Id. The interview took place five days later and, as noted above, was conducted by the child protection worker in the presence of a police officer. Id. at 247. Because the child was determined to be incompetent to testify at trial, the child’s statements were admitted at trial through the testimony of his mother and the child protection worker and through the videotape of the interview. Id. at 248. We concluded that the child protection worker was not acting substantially to preserve testimony for trial, but was conducting the interview for the health and welfare of the child. Id. at 255. We further concluded that the three-year-old victim was not acting to preserve testimony for trial because children of that age are “simply unable to understand the legal system and the consequences of statements made during the legal process.” Id. at 255-56. On that basis, we held that the victim’s statements were not testimonial. Id. at 256.

In addition, we stated that the intent of the questioner, the seventh Wright factor, is one of the most important factors in determining whether statements are testimonial. Id. at 250. We also consider the identity of the questioner to be an indication of the questioner’s intent. As the Supreme Court stated in Crawford, “Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Crawford, 541 U.S. at 56 n. 7, 124 S.Ct. 1354 (emphasis added). Therefore, the fact that the questioner is a government officer is probative of the questioner’s purpose for eliciting the statements in question. With respect to statements made to nongovernment questioners, we must determine whether the questioner was acting in concert with or as an agent of the government.

We begin our analysis by examining the identity of and the purpose of the questioner. It is significant in this case that no government actor initiated, participated, or was involved in any way with the assessments of R.J. that resulted in the statements at issue. In Bobadilla, even though police were involved in organizing the child’s interview, were present at the interview, the interview was conducted at the police station, and the interviewer was a government questioner, we held that the child’s statements were not testimonial. 709 N.W.2d at 246-47, 256. Unlike the questioner in Bobadilla, the record here indicates that Edinburgh is not a government questioner. Edinburgh is a nurse practitioner employed by MCRC, which, as Dr. Levitt testified at trial, is a department of Children’s Hospital. Also, unlike Bobadilla, R.J.’s statements were made to Edinburgh at the hospital and in a doctor’s office, not at a law enforcement center. Further, the police were not involved in organizing R.J.’s assessments and were not present for and did not participate in the assessments. Therefore, we conclude, based on the record presented, that Edinburgh was not a government questioner and that she was not acting in concert with or as an agent of the government. Having concluded that neither the police or any government actor, nor anyone acting in concert with or as an agent of the government was involved in R.J.’s assessments, we further conclude that R.J.’s statements to Edinburgh were not testimonial.

Even if we had concluded that Edinburgh was acting in concert with or as an agent of the government, our conclusion that R.J.’s statements to Edinburgh are not testimonial would not change. The record here indicates that Edinburgh’s purpose in interviewing and examining R.J. was to assess her medical condition. Both Edinburgh and Dr. Levitt testified that their purpose in evaluating children such as R.J. is to determine whether the child has been abused and, if necessary, to connect the child and family to appropriate services. There is no evidence or other testimony in the record to the contrary. The fact that MCRC generally does not have ongoing contact with the child after the assessment does not minimize the medical purpose for which the assessment is conducted.

Scacchetti argues that, even if the court focuses on the medical purpose for the assessments, the fact that Edinburgh has testified in past child sexual abuse cases with relative frequency indicates that she is acting for the purpose of collecting statements for use in a later prosecution. First, we note that Scacchetti’s contention that Edinburgh testifies in child sexual abuse cases with relative frequency is belied by the only evidence in the record on this subject. According to Edinburgh’s testimony, she has examined over 500 patients and of those she testified in 15 to 20 eases. We do not believe, on these facts, that testifying 15 to 20 times constitutes relatively frequent testimony.

Moreover, the mere fact that Edinburgh may be called to testify in court regarding sexual abuse cases does not transform the medical purpose of the assessments into a prosecutorial purpose, nor is there any evidence that Edinburgh had a proseeuto-rial purpose here. Further, in Bobadilla we specifically held that the fact that the interview of the child may have had the secondary purpose of preserving testimony does not make a statement testimonial if that purpose is incidental to a broader purpose of protecting the child’s welfare. Bobadilla, 709 N.W.2d at 255. Thus, even if we were to conclude that Edinburgh’s assessments of R.J. had, as a secondary purpose, the preservation of testimony for trial, R.J.’s statement would still not be testimonial. Because the broad purpose of Edinburgh’s assessments was R.J.’s medical health, any subsequent testimony that Edinburgh was required to give did not change her assessment purpose.

At least three other courts have held that statements made by children are not testimonial when taken for medical assessment purposes without the involvement of government actors. See United States v. Peneaux, 432 F.3d 882, 896 (8th Cir.2005) (holding statements given to pediatrician for diagnosis or treatment are “presumptively nontestimonial”); State v. Vaught, 268 Neb. 316, 682 N.W.2d 284, 291-92 (2004) (finding statement made by four-year-old to emergency room physician following sexual abuse was not testimonial); State v. Fisher, 130 Wash.App. 1, 108 P.3d 1262, 1269 (2005) (holding statement made by 29-month-old to family physician the morning after child’s admission to the hospital was not testimonial). At least one commentator has suggested that, in Crawford; the United States Supreme Court implicitly took a favorable view of statements made for the purposes of medical treatment. Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L.Rev. 511, 600 (2005).

Further, we also note that the first five Wright factors support the conclusion that R.J.’s statements to Edinburgh are not testimonial. R.J. was the victim in this case, and not a mere observer. Given R.J.’s age at the time Edinburgh assessed her, it is not clear that R.J. knew or understood the purpose of the statements she made to Edinburgh. We do know, however, that R.J. made the statements in response to questions asked during Edinburgh’s medical assessments and that the statements were made at a hospital and in a doctor’s office. R.J.’s mother initiated R.J.’s medical assessment when she brought R.J. to the hospital and requested that R.J. be examined. And, like the de-clarants in Wright, R.J. was emotionally distraught when discussing the alleged abuse with Edinburgh.

Finally, we note that the sixth and eighth Wright factors do not clearly support a conclusion one way or the other as to whether the statements are testimonial. Although the questions that Edinburgh asked R.J. followed a particular protocol and were structured to elicit responses from a young child, the questions were designed to elicit answers related to the child’s medical health and not responses that would necessarily be useful in prosecuting an offender. Dr. Levitt specifically testified that the structure of the questioning is necessary to elicit useful responses and obtain specific medical details from the child. No evidence to the contrary was presented. Therefore, while the questioning was structured, we conclude that it was not structured for the purpose of creating useful prosecutorial • statements. Similarly, although the statements R.J. made during the second assessment were recorded by Edinburgh, the trial record indicates only that the recording was made to allow Dr. Levitt to review the assessment.

Taken separately or together, the absence of government involvement in the questioning of R.J. and the Wright factors, viewed against the backdrop of the record presented, lead us to the conclusion that the statements R.J. made during Edinburgh’s assessments are not testimonial. We therefore hold that admission of the statements at trial did not offend Scaechet-ti’s Sixth Amendment right to confront the witnesses against him.

Affirmed.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . While the videotape was shown to the jury, the jurors were not shown the physical examination portion of the tape.


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Willard L. WENTZEL, Jr., a Minnesota Attorney, Registration No. 13160X.
    No. A05-846.
    Supreme Court of Minnesota.
    April 6, 2006.

      Martin A. Cole, First Assistant Director, Patrick R. Burns, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for Appellant.
    Mark W. Gehan, Elizabeth Clysdale, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for Respondent.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Willard L. Wentzel, Jr., alleging that Wentzel misappropriated his clients’ funds. In his answer, Wentzel admitted the shortages in his client trust account and offered mitigating circumstances. After a hearing, the referee concluded that Wentzel had violated Minn. R. Prof. Conduct 1.15 (safekeeping of client funds) and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee recommended that Wentzel be disbarred with the disbarment stayed upon conditions to be determined by this court, including that Wentzel: (1) be indefinitely suspended from the practice of law; (2) be allowed to petition the director for reinstatement after two years; (3) make periodic reports to the director, and sign releases of information, regarding his treatment for depression; (4) pay a minimum of $900 in costs and disbursements; (5) completely cooperate with the director’s monitoring of these conditions; and (6) be immediately disbarred for failure to comply with the above conditions. The director appealed to this court, arguing that disbarment is the only appropriate discipline. We conclude that disbarment is the appropriate discipline in this case.

Wentzel was admitted to practice law in Minnesota on October 30, 1981, and has not been subject to any previous professional discipline. In connection with his law practice, Wentzel maintained a client trust account at Associated Bank. From January 23 to January 26, 2001, and April 25, 2002, to June 4, 2004, Wentzel’s misuse of client funds from the account caused shortages in the account. As a result of Wentzel’s misuse of client funds, his client trust account became overdrawn on April 28, 2004. Associated Bank reported the overdraft to the director. Upon inquiry by the director, Wentzel acknowledged that the account “became overdrawn due to the advance payment of fees issued to my firm, W.L. Wentzel, Jr. & Associates, PLLC on cases settled and cases anticipated to be settled within the near term of the date that the checks were issued.” After the director notified Wentzel of the overdraft inquiry, Wentzel obtained a $62,500 loan and deposited the proceeds in the trust account. This deposit did not rectify the shortage of funds in the account, and the account continued to have a shortage until at least June 4, 2004 (the end of the director’s audit period). The shortage was eventually corrected by Wentzel through deposits of his own funds or by retaining earned fees in the account. Wentzel’s misuse of client funds involved 30 instances in which he either issued a trust account check to himself without attribution to, or entitlement from, any client or issued a trust account check in payment of client fees and costs, but before depositing underlying client funds in support of the payments.

After the director’s audit of Wentzel’s trust account for the period of January 1, 2001, to June 4, 2004, the director and Wentzel entered into a stipulation dispensing with panel proceedings pursuant to Rule 10(a), Rules on Lawyers Professional Responsibility (RLPR). The director then filed the instant petition for disciplinary action against Wentzel, alleging misappropriation of client funds in violation of Minn. R. Prof. Conduct 1.15 and 8.4(c). Wentzel answered the petition, repeating his prior explanation for the shortage of funds, and gave the director “reasonable cooperation” during the investigation. Pursuant to Rule 14(a), RLPR, we referred the matter to a referee for a hearing.

The referee held a hearing on October 4 and 5, 2005. At the hearing, in addition to testifying himself, Wentzel presented the testimony of two character witnesses, and that of his psychologist. In his testimony, Wentzel admitted to misappropriating client funds, but sought to show that his depression was the cause of his misconduct. He also testified about personal problems he experienced during the time of his misconduct, including financial problems, the dissolution of his marriage, and child custody proceedings.

On October 27, 2005, the referee filed findings of fact, conclusions of law, and a recommendation for discipline. He found that Wentzel had engaged in intentional misappropriation of client funds. He further found that Wentzel had not established by clear and convincing evidence that he suffered from a severe psychological problem at the time of his misconduct. The referee found two aggravating factors: (1) that Wentzel’s misappropriation spanned a time period of over two years-, involved 30 separate instances, and created an account shortage of $87,957.01 at one point; and (2) that Wentzel “does not have complete insight into the moral and ethical nature of his acts, preferring to characterize them as borrowing rather than theft, though he acknowledges wrongdoing.” In mitigation of WentzeFs conduct, the referee found that Wentzel: (1) had not been disciplined previously; (2) had completed restitution, and ultimately no client or entity suffered a financial loss; (3) had, at the time of misconduct, suffered anxiety and emotional distress due to the dissolution of his marriage and child custody proceedings; and (4) had reasonably cooperated with the director.

The referee concluded that Wentzel’s conduct violated Minn. R. Prof. Conduct 1.15 and 8.4(c). As noted above, the referee recommended that Wentzel be disbarred with the disbarment stayed.

Before this court, the director does not contest the referee’s findings of fact and conclusions of law, but does contest the referee’s disciplinary recommendation, arguing that Wentzel should be disbarred outright. Wentzel argues the recommended discipline is appropriate and also challenges one of the aggravating factors found by the referee. Wentzel ordered a transcript of the referee’s hearing. Therefore, under Rule 14(e), RLPR, the referee’s findings and conclusions of law are not binding on this court. In re Wentzell, 656 N.W.2d 402, 405 (Minn.2003). While not binding, “we give great deference to a referee’s findings and will not reverse those findings unless they are clearly erroneous, especially in cases where the referee’s findings rest on disputed testimony or in part on respondent’s credibility, demeanor, or sincerity.” Id. We must be “left with the definite and firm conviction that a mistake has been made” before determining a referee’s findings to be clearly erroneous. Id. (quoting In re Strid, 551 N.W.2d 212, 215 (Minn.1996)).

We first address Wentzel’s challenge to the referee’s finding. Wentzel argues that the referee’s finding that Wentzel lacks insight into his actions is not supported by the record. It is true that Wentzel admitted the misconduct and made statements in his testimony indicating that he understood the seriousness of his misconduct. However, there is also evidence that indicates that Wentzel does not fully appreciate the grave nature of his misconduct. For example, in his sessions with his psychologist, Wentzel characterized his actions as akin to “borrowing” from the trust account. At the hearing itself, when initially asked whether he was entitled to the money he had wrongfully withdrawn from the trust account, Wentzel responded, “Technically I guess not.” Wentzel also testified that he considered his actions borrowing instead of stealing. Thus, here, the referee’s finding rests in part on the referee’s assessment of Went-zel’s credibility, demeanor, and sincerity. Given the testimony and the level of deference we give referee findings, we cannot say that we are left with a definite and firm conviction that a mistake has been made. Therefore, we conclude that the finding is not clearly erroneous.

Having concluded that the referee did not clearly err in finding that Went-zel lacks insight into his actions, we turn our attention to the appropriate sanction in this case. While a referee’s recommendation for discipline carries great weight, we have final responsibility for determining the appropriate discipline. In re Edinger, 700 N.W.2d 462, 467 (Minn.2005). “Disciplinary sanctions for professional misconduct are imposed to protect the public and the judicial system, and to deter future misconduct.” In re Crandall, 699 N.W.2d 769, 771 (Minn.2005). In determining the appropriate sanction for attorney misconduct, we consider four factors: “1) the nature of the misconduct, 2) the cumulative weight of the violations of the rules of professional conduct; 3) the harm to the public, and 4) the harm to the legal profession.” In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004) (quoting In re Singer, 541 N.W.2d 313, 316 (Minn.1996)). While we look to similar cases for guidance, sanctions are determined on a case-by-case basis after examining the acts of misconduct and considering both aggravating and mitigating circumstances. Wentzell, 656 N.W.2d at 408.

The nature of the misconduct here is the misappropriation of client funds. We generally disbar attorneys who misappropriate client funds. See, e.g., In re Pierce, 706 N.W.2d 749, 756 (Minn.2005); In re Vaught, 693 N.W.2d 886, 891 (Minn.2005); In re Olson, 577 N.W.2d 218, 220-21 (Minn.1998). “Maintenance of public confidence in the legal profession requires the strictest discipline in misappropriation eases.” In re Austin, 333 N.W.2d 633, 635 (Minn.1983). However, we have not always disbarred such attorneys. See, e.g., In re Hanvik, 609 N.W.2d 235, 242 (Minn.2000); In re Bernstein, 404 N.W.2d 804, 805 (Minn.1987). “In cases where this court has not imposed disbarment for extensive misappropriation of client funds, substantial mitigating circumstances were present.” In re Weems, 540 N.W.2d 305, 308 (Minn.1995). In those cases, lengthy suspensions generally have been imposed. See, e.g., In re Rooney, 709 N.W.2d 263, 272-73 (Minn.2006) (18-month suspension); In re Pyles, 421 N.W.2d 321, 327 (Minn.1988) (indefinite suspension, at least two years before reinstatement-eligible).

Both Wentzel and the director cite cases that they argue are sufficiently similar to Wentzel’s situation to be relevant in informing this court’s decision in this case. Wentzel relies heavily on In re Jellinger, a case in which the discipline imposed was nearly identical to that recommended by the referee in Wentzel’s case. 655 N.W.2d 312, 316-17 (Minn.2003). Jellinger misappropriated client funds, failed to communicate with his clients, neglected client matters, made false statements to clients, and failed to cooperate with the director. Id. at 314. Against this misconduct, we balanced the referee’s recommendation that disbarment would be too harsh, the fact that Jellinger’s depression was shown to have “some causative relationship to his passive misconduct,” Jellinger was currently in treatment for depression, and his clients did not ultimately suffer a monetary loss as a result of the misconduct. Id. at 316. While Jellinger committed more types of misconduct than Wentzel, Jelling-er misappropriated a substantially smaller amount of funds. See id. at 314. Wentzel also argues that we should look to In re Pyles when determining his discipline. Like Jellinger, Pyles (who received an indefinite suspension with the possibility of reinstatement after two years) committed more types of misconduct than Wentzel, but Pyles also misappropriated a smaller amount of money than Wentzel and was found to have led “an exemplary life.” See Pyles, 421 N.W.2d at 322-24, 326-27.

The director argues that our decision in In re Stroble, 487 N.W.2d 869 (Minn.1992), demonstrates that the mitigating factors in Wentzel’s case are insufficient to avoid disbarment. Stroble misappropriated approximately $90,000 from three elderly clients. Id. at 871. While we noted numerous mitigating factors in Stroble’s favor (lack of prior disciplinary record, full cooperation, expressed remorse, and participation in community service and pro bono work), Stroble was disbarred. Id. However, Stroble misappropriated money from especially vulnerable clients. Id. That aggravating factor is not present in Wentzel’s case.

The second factor we consider when determining the appropriate sanction is the cumulative weight of the violations. Oberhauser, 679 N.W.2d at 159. In this case, Wentzel misappropriated client funds in violation of Minn. R. Prof. Conduct 1.15 and 8.4(c). We have made clear that, standing alone, intentional misappropriation of client funds usually warrants disbarment. Weems, 540 N.W.2d at 308. Here, as the referee found, the severity of Wentzel’s misconduct is aggravated by the fact that it lasted over two years, involved 30 instances of misappropriation, and caused a trust account shortage of nearly $88,000. This was not a single isolated incident or a brief lapse in judgment.

The next factor we consider is the harm to the public and legal profession caused by the attorney’s misconduct. Oberhauser, 679 N.W.2d at 159. Wentzel has completed restitution and no client or entity ultimately suffered a financial loss as a result of his misappropriations. However, Wentzel’s misconduct has still caused harm because “[mjisappropriation of funds entrusted to an attorney as a fiduciary for his clients is a breach of trust that reflects poorly on the entire legal profession and erodes the public’s confidence in lawyers.” Rooney, 709 N.W.2d at 270.

Finally, we assess mitigating and aggravating circumstances. Vaught, 693 N.W.2d at 890. There are two aggravating factors: (1) the fact that Wentzel’s misappropriation spanned a time period of over two years, involved 30 separate instances, and created an account shortage of $87,957.01 at one point; and (2) the fact that Wentzel “does not have complete insight into the moral and ethical nature of his acts, preferring to characterize them as borrowing rather than theft, though he acknowledges wrongdoing.” The mitigating factors found by the referee are: (1) Wentzel’s lack of prior disciplinary history; (2) Wentzel’s restitution, and the fact that ultimately no client or entity suffered a financial loss; (3) the anxiety and emotional distress of Wentzel’s marriage dissolution and child custody proceedings; and (4) Wentzel’s “reasonable cooperation” with the director.

With respect to the mitigating factors found by the referee, the director argues that the only mitigating factor sufficient to avoid disbarment for misappropriation is clear and convincing evidence showing that the attorney did not intentionally convert the funds. We recently rejected this argument. See Rooney, 709 N.W.2d at 270-71 (“[W]e are free to consider mitigating circumstances in cases involving intentional misappropriation of client funds and * * * in certain cases such mitigating factors may result in a sanction less severe than disbarment.”). On balance, we conclude that the mitigating factors do not outweigh the aggravating factors found by the referee.

We conclude that the appropriate discipline in this case is outright disbarment. Therefore, we order that Willard L. Went-zel, Jr., be, and hereby is, disbarred.

ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.

      . In addition, Wentzel implicitly argues that this court should find two additional mitigating factors that the referee did not list in his findings. First, Wentzel argues that his "good character and reputation for honesty support the [r]eferee’s sanction.” Wentzel also implies that his plan "to associate with a law firm to ensure that this never happens again” is a mitigating factor this court should consider when imposing discipline. Each of these factors has been considered by this court when imposing discipline in the past. See In re Bernstein, 404 N.W.2d 804, 805 (Minn.1987); In re Heffeman, 351 N.W.2d 13, 15 (Minn.1984). Wentzel offered evidence supporting each of these factors through his own testimony and the testimony of two character witnesses. However, in light of the deference given to the referee's findings and because finding these factors requires an assessment of the credibility of Wentzel and the other two witnesses, the referee’s decision not to find these additional mitigating factors was not clearly erroneous.


author: KALITOWSKI, Judge.

text:
    STATE of Minnesota ex rel. SWAN LAKE AREA WILDLIFE ASSOCIATION, petitioner, Respondent, v. NICOLLET COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Marlin Fitzner, et al., intervenor, Respondents.
    No. A05-1001.
    Court of Appeals of Minnesota.
    April 4, 2006.

      William G. Peterson, Peterson Law Office, P.A., Bloomington, MN and Garry D. Barnett, Mankato, MN, for respondent Swan Lake Area Wildlife Association.
    Scott T. Anderson, Kimberley K. So-bieck, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for appellant.
    Kurt A. Deter, Gerald W. Von Korff, Rinke-Noonan, Ltd., St. Cloud, MN, for respondents Marlin Fitzner, et al.
    Considered and decided by WILLIS, Presiding Judge; KALITOWSKI, Judge; and STONEBURNER, Judge.
   OPINION

KALITOWSKI, Judge.

Appellant Nicollet County Board' of County Commissioners contends that because the drainage authority is the proper arbiter of claims asserted under the drainage code, the district court erred in determining that it had subject matter jurisdiction over a drainage-related claim brought under the Minnesota Environmental Rights Act (MERA).

FACTS

County ditch 46A (CD46A) was established by appellant’s approval in 1907. It runs from the northeast corner of Mud Lake to the southern portion of Little Lake in Nicollet County, Minnesota. In 1950, appellant ordered an improvement to CD46A in response to petitions claiming that the ditch was draining inadequately and causing flooding to surrounding areas. That order also approved the installation of a dam structure to maintain the elevation of Little Lake and Mud Lake. The structure was installed with a crest elevation of 973.2 feet above sea level. In 1972, the Commissioner of Natural Resources granted appellant a permit to construct a new and longer dam structure at an increased elevation of 973.8 feet above sea level.

The new structure was never built. And the water-level problems persisted due to a leak in the existing dam structure. Over the next 30 years, appellant received notices urging it to address concerns that the dam structure was below the authorized elevation of 973.8 feet and that Little Lake was draining as a result. Appellant and the Department of Natural Resources (DNR) began discussing the issue again in the mid-1990s, but the parties continued to dispute, among other issues, the elevation of a new dam structure.

Respondent Swan Lake Area Wildlife Association became involved in the matter in 2002. Respondent offered to pay for construction of a dam, but the parties could not agree on the dam’s elevation. Appellant maintained that it should remain at the level originally installed, 973.2 feet, while respondent asserted that the appropriate crest elevation was 973.8 feet.

Respondent filed suit against appellant, seeking declaratory and equitable relief under MERA. Respondent moved to amend the complaint, asking that appellant be directed, by mandamus, to restore the water levels of Little Lake and Mud Lake. Respondent also brought a motion to join the Minnesota DNR as a third-party defendant. Appellant opposed respondent’s motions and moved to dismiss the complaint based on lack of subject matter jurisdiction. The district court denied appellant’s motion to dismiss and granted respondent’s motions to amend the complaint and to join the DNR. On appeal, appellant challenges the district court’s determination that it had subject matter jurisdiction over respondent’s MERA claim.

ISSUE

Did the district court err in determining that it had subject matter jurisdiction over a MERA claim involving drainage issues?

ANALYSIS

Generally, an order denying a motion to dismiss is not appealable because it merely retains the action for trial, does not involve the merits of the claim, and is not a final order. County of Hennepin v. Decathlon Athletic Club, Inc., 559 N.W.2d 108, 108 n. 2 (Minn.1997). But an order denying a motion to dismiss for lack of jurisdiction is appealable as a matter of right, as it is not merely retention of the action for trial, but a determination compelling the defendant to take on the burden of litigation that it has a legal right to avoid. McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn.1995) (holding dismissal based on lack of subject matter jurisdiction is appealable).

Subject matter jurisdiction involves a court’s authority to decide a particular class of actions and its authority to decide the particular questions before it. Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn.App.1995), review denied (Minn. May 31, 1995). “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Minn. R. Civ. P. 12.08(c). Questions of subject matter jurisdiction are reviewed de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn.2002).

MERA provides a civil remedy for those that seek to protect, preserve, and enhance the air, water, land, and other natural resources within the state. Minn. Stat. § 116B.01 (2002). Under MERA,

[a]ny person residing within the state ... may maintain a civil action in the district court for declaratory or equitable relief in the name of the state of Minnesota against any person, for the protection of the air, water, land, or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction.

Minn.Stat. § 116B.03, subd. 1 (2002). An association such as respondent qualifies as a “person” for MERA purposes. Minn. Stat. § 116B.02, subd. 2 (2002). Moreover, MERA states that “[t]he rights and remedies provided herein shall be in addition to any administrative, regulatory, statutory, or common law rights and remedies now or hereafter available.” Minn.Stat. § 116B.12 (2002).

Appellant argues that the availability of alternative administrative processes, specifically the drainage procedures laid out in Minn.Stat. §§ 103E.005-.812, necessarily precludes the district court’s jurisdiction over appellant’s MERA claim. Unless and until the drainage authority considers a petition on the matter, appellant contends that the district court does not have jurisdiction. We disagree.

The plain language of MERA provides that its remedies “shall be in addition to any administrative ... rights and remedies now or hereafter available.” Id. (emphasis added). The legislature could have supplied an exception for MERA claims subject to drainage code proceedings. But it did not. And this court “cannot supply that which the legislature purposely omits or inadvertently overlooks.” Wallace v. Comm’r of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971).

This court addressed a similar jurisdiction argument involving MERA in State by Fort Snelling State Park Ass’n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169 (Minn.App.2003), review denied (Minn. Mar. 16, 2004). In Fort Snelling, a park board planned to construct an outdoor athletic center on the Fort Snelling Polo Grounds, which the board had leased from the DNR. 673 N.W.2d at 172. The plan was subject to review by the Minnesota Historical Society (MHS) and the National Park Service (NPS) and both organizations approved the plan. Id. at 173. A state park association then brought a declaratory judgment action seeking to protect the polo grounds under MERA. Id. at 171-72. On appeal, the park board argued that the district court erroneously concluded that it had jurisdiction over the MERA claim because the administrative processes of the MHS and NPS precluded an action under MERA. Id. at 177. Citing Minn.Stat. § 116B.12, this court concluded that there was no support for the park board’s claim and that “this civil action under MERA was authorized regardless of administrative processes.” Id.

In light of the broad language of Minn. Stat. § 116B.12, we conclude that the district court has subject matter jurisdiction over respondent’s MERA claim regardless of the administrative processes and remedies available under the drainage provisions of Minn.Stat. §§ 103E.055-.812. Thus, the district court properly denied appellant’s motion to dismiss for lack of subject matter jurisdiction.

Appellant also challenges the substance of respondent’s MERA claim. But the scope of this appeal is limited to jurisdiction. Because this is an interlocutory appeal and the district court must first address claims before they appear before this court, we do not reach the merits of respondent’s claim. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate courts generally do not consider matters that the district court did not consider).

Finally, appellant argues in its brief that the district court improperly granted respondent’s motions to amend the complaint and to join the DNR. Appellant contends that because the district court lacked subject matter jurisdiction over the MERA claim, it also lacked jurisdiction to grant respondent’s motions. Because we conclude the district court had subject matter jurisdiction over the MERA claim, we reject appellant’s argument that the district court abused its discretion by granting respondent’s motions.

DECISION

Under the plain language of MinmStat. § 116B.12, the district court has subject matter jurisdiction over a claim under the Minnesota Environmental Rights Act, even if that claim involves drainage and could have been asserted pursuant to the administrative processes set out in the drainage code.

Affirmed.

      . The ditch was originally titled "County Ditch 46” but was renamed "County Ditch 46A” on or about 1971.