author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Jerome M. RUDAWSKI, a Minnesota Attorney, Registration No. 9416X.
    No. A05-484.
    Supreme Court of Minnesota.
    March 2, 2006.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) and respondent Jerome M. Rudawski appeal the supreme court referee’s recommendation that Rudawski be suspended from the practice of law for 60 days for engaging in the unauthorized practice of law while on involuntary restricted status, in violation of Minn. R. Prof. Conduct 5.5(a). Rudawski was on involuntary restricted status as a result of his failure to comply with continuing legal education (CLE) repotting requirements.

Because Rudawski ordered a transcript of the referee hearing, the referee’s findings of fact and conclusions of law are not binding on this court. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR); see also In re Wentzell, 656 N.W.2d 402, 405 (Minn.2003). Rudawski challenges findings of fact 11, 12, 13, 14, 18, and 19, as well as the referee’s conclusions of law. Rudawski argues that the appropriate discipline is unsupervised pro: bation for two years. The Director does not challenge any of the referee’s findings of fact or conclusions of law, but requests that Rudawski be suspended from the practice of law for a minimum of 90 days and that he be required to go through a Rule 18, RLPR, reinstatement hearing in order to be reinstated to the practice of law. For the reasons discussed below, we conclude that none of the referee’s findings are clearly erroneous and we adopt the referee’s recommendation to suspend Ru-dawski from the practice of law for 60 days.

Rudawski was admitted to practice law in Minnesota in 1978. In 1987, this court publicly reprimanded him for improperly notarizing a signature and failing to make reasonable inquiry into the legitimacy of the signature (which had been forged). In re Rudawski, 407 N.W.2d 683, 683 (Minn.1987). Rudawski was admonished in July 2000 for failing- to actively pursue his clients’.interests and for failing to return client phone calls or affirmatively communicate in any way with those clients. Ru-dawski was again admonished in January 2001 for depositing, a client’s retainer in his business account and then, when the client terminated the representation, withdrawing funds from the retainer without providing detail to the client about the date of his work, the services performed, or the purpose of the work.

On June 30, 2002, Rudawski was due to complete 45 hours of approved CLE credits for the preceding three-year period. The Minnesota Board of Continuing Legal Education (Board) sent him a notice on August 19, 2002, reminding him that he was required to file an affidavit of compliance with the CLE requirements on or before August 30, 2002. Rudawski, who had moved his office address without notifying the Board, asserted at his referee hearing that he never received this letter. Rudawski also testified that he never received the “Final Warning” notice sent to him by the Board on November 4, 2002. On November 26, 2002, the Board then sent Rudawski a “Notice of Non-Compliance.” Rudawski testified before a disciplinary panel in January 2005 that he never received this notice, but he produced the notice on the morning of his referee hearing in-May 2005 and explained that he had found it the- night before.

On January 23, 2003, this court issued an order placing Rudawski on involuntary restricted status for failure to comply with the CLE statutory requirements. Upon receipt of the order, Rudawski retained Edward Kautzer on February 6, 2003, to assist him in getting reinstated. Upon being retained, Kautzer told. Rudawski to “calm down,” and assure*} Rudawski that he would “take care of this” for him. The same day, Kautzer faxed a letter to the Board, with a copy to Rudawsld, requesting “an extension of time for [Rudawski] to complete the 12 hours he needs to wrap up his CLE credits.” The letter referenced a “notice * * * regarding non-compliance” that Rudawski had received that day and indicated that a $125 check “for the transfer from restricted status to active status” would be included with the mailed copy of the letter. According to Rudawski, he was “under the impression or belief that [he was] .authorized to practice law after [he] received”, the copy of Kautzer’s letter to the Board.

Kautzer discussed this letter in a phone conversation with Margaret Corneille, Director of the Board, one week later — February 13, 2003. Kautzer believed that, after this conversation, he orally advised Rudawski that Rudawski was authorized to practice law. Kautzer sent a letter to the Board on March 10, 2003, that included a list of Rudawski’s 30.25 hours of completed CLE credits. In the March 10 letter, Kautzer requested that Rudawski be given a “90 day[] extension ih which to complete” his unfulfilled CLE requirements. Rudawski testified that he received a copy of this letter and assumed it to be the basis for his continuing to practice, even though he never received a response from the Board regarding Kautzer’s request for the 90-day extension. In a phone conversation on March 14, 2003, Corneille informed Kautzer that Rudawski could not be transferred from involuntary restricted status to active status until after he had completed a minimum of 45 hours of CLE credits plus an additional prorated amount for the next three-year cycle. At the referee’s hearing, Kautzer, while not specifically saying whether he had called Rudaw-ski and told him about the conversation with Corneille, believed that he “ordinarily would” have under his “normal office procedure.” Rudawski denies that Kautzer ever informed him by phone that he was still on involuntary restricted status. The referee found that:

Within days thereafter, Mr. Kautzer informed [Rudawski] by phone of the substance of the conversation with Ms. Corneille: that [Rudawski] did not have an “extension” to complete the overdue 45 credit hours, that [Rudawski’s] license was, in fact, on involuntary restricted status as per the Supreme Court’s order and Rule 12, and that [Rudawski] was practicing while on restricted status until [Rudawski] completed the minimum 45 hours.

In an April 24, 2003, letter to Rudawski, Kautzer wrote, “you are, until the order is lifted by the Supreme Court, practicing while suspended for failure to comply with CLE requirements.” According to Ru-dawski, “my recollection is that I did not receive this letter.”

The referee found that Kautzer sent Ru-dawski’s affidavit of compliance to the Board on August 5, 2003. On August 12, 2003, the Board sent a letter to' Rudawski stating, “We will notify the Supreme Court that you may be reinstated. Remember that you remain on restricted status until the Court issues an order reinstating you.” On August 13, 2003, by order of this court, Rudawski’s license to practice law was reinstated to active status.

During this time period, Rudawski was representing a client in a divorce proceeding. At some point, the opposing party, acting pro se, questioned Rudawski’s license to practice law. According to Ru-dawski, the opposing party “indicated to the [c]ourt that I was * * * suspended and I shouldn’t be appearing.” On August' 14, 2003, Washington County District Court Judge Stephen Muehlberg, who was presiding over the divorce proceeding, sent Rudawski a letter asking about the status of his license to practice law. Judge Muehlberg’s letter read, “Please advise me of the status of your license to practice law in Minnesota on February 5, 2003, April 16, 2003, and June 30, 2003. Also please advise me of the status of your attorney license now.” In a letter dated August 18, 2003, Rudawski responded to Judge Muehlberg by writing, in part:

On or about February 6, 2003, I received notification from the Minnesota Board of Continuing Legal Education, that I had failed to comply with the 45 hours of CLE credits for the period ending June 30, 2002. I immediately retained Attorney Edward Kautzer to represent me before the Minnesota Board of Continuing Legal Education regarding their intention to place me on involuntary restricted status. Attorney Edward Kautzer’s letter to the Minnesota Board of Continuing Legal Education dated February 6, 2003, reflected a negotiated settlement proposal avoiding my inactive status.
Pursuant to the Rules of the Supreme Court and the Rules of the Board of Continuing Legal Education, Rule 12, “Restricted Status”, specifically, Section (b), entitled, “Transfer from Restricted Status to Active Status”, my attorney, Mr. Kautzer, submitted to the Board a $125.00 transfer fee, allowing me to maintain my license and active status, subject to an agreement requiring me to complete CLE credits. A copy of Rule 12(b), subd. (1), (2), (a), (b), (c), is enclosed herein for your consideration.
I have also enclosed the most recent correspondence received from the Board of Continuing Legal Education, dated August 12, 2003, acknowledging my affidavit of CLE compliance and my return to active status.

The referee found that Rudawski’s letter to Judge ■ Muehlberg misrepresented -Ru-dawski’s “actual .notice regarding the status of [Rudawski’s] license during much, if not all, of the period in question.” The referee considered Rudawski’s misrepresentations to be an aggravating factor in determining the appropriate discipline for Rudawski.

In his findings of fact, the referee, among other things, found:

11. • Within days [of March 14, 2003], Mr. Kautzer informed Respondent 'by phone of the substance of the conversation with Ms. Corneille: that Respondent did not have an “extension” to complete the overdue 45 credit hours, that Respondent’s license was, in fact, on involuntary restricted status as per the Supreme Court’s order and Rule 12, and that Respondent was practicing while on restricted status until Respondent completed the minimum 45 hours.
■ ■ 12. On March 24, 2003, Mr. Kautzer wrote' to Respondent at Respondent’s current • office address, informing Respondent that in order to “settle [the] CLE issue,” Respondent needed to “complete the 45 credits,” plus a pro rated amount of additional credits, in order for “the Supreme Court to get your name off the shit list.”
13. On April 24, 2003, Mr. Kautzer sent another letter to Respondent at Respondent’s current address, inquiring as to Respondent’s progress toward completing the necessary credits and reporting them to the Board of CLE. The letter stated: “keep in mind that you are, until the order is lifted by the Supreme Court, practicing while suspended for failure to comply with CLE requirements.”
‘ 14. On August 5, 2003, Mr. Kautzer sent Respondent’s Affidavit of Compliance to the Board of CLE indicating that Respondent had completed the 45 hours required for the reporting period ending June 30, 2002.
⅜ ⅜ ⅜ ⅜
18. Respondent has asserted that Respondent’s admitted violations of the Supreme Court order, Rule 5.5(a), Minnesota Rules of Professional Conduct, and Rule 12 of the Rules of the Board of CLE were unintentional. While intent is not an element of the misconduct, lack of intent might constitute grounds for mitigation. Respondent has failed to prove that Respondent’s misconduct was unintentional, however.
19. Respondent’s misconduct is ag.gravated by Respondent’s misrepresentations to Judge Muehlberg, the Director’s Office, and at the hearing before this referee as to Respondent’s actual notice regarding the status of Respondent’s license during much, if not all, of the period in question. The evidence establishes that Respondent knew, or should have reasonably known, Respondent was practicing while on restricted status, and Respondent’s statements to the contrary are aggravating factors.

The referee further found that Rudawski practiced law, on a continuous basis, for more than six months after this court placed him on involuntary restricted status.

The referee concluded that Rudawski’s “conduct in practicing while on involuntary restricted status was in direct violation of the Supreme Court’s order, and such practice constituted multiple instances of the unauthorized practice of law in violation of Rule 5.5(a), Minnesota Rules of Professional Conduct.” The referee then recommended that Rudawski “be suspended for a period of sixty (60) days.” In the memorandum accompanying his findings of fact and conclusions of law, the referee stated, “The recommendations set forth above are based upon the Referee’s opinion that [Ru-dawski] either knew or was willfully ignorant of [his] restricted status during the period of February 06, 2003 through August 13, 2003 and that [he] continued to engage in the practice of law during said period.” The referee also stated that Ru-dawski’s “claim that [he] did not receive the notices by the Board of CLE and the letters from [his] attorney suspect given the usual reliability of the mail system and the fact that [Rudawski] discovered in [his] possession the Board of CLE’s Final Notice which [Rudawski] adamantly claimed to have not received in previous hearings.”

Although the referee’s findings of fact are not binding in this case because Ru-dawski ordered a transcript, this court nonetheless gives “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.” In re Wentzell, 656 N.W.2d at 405. This court must be “left with the definite and firm conviction that a mistake has been made” in order to come to the conclusion that a referee’s findings are clearly erroneous. Id. (quoting In re Strid, 551 N.W.2d 212, 215 (Minn.1996)).

“Allegations of professional misconduct must be proven by ‘full, clear and convincing evidence.’ ” In re Gherity, 673 N.W.2d 474, 480 (Minn.2004) (quoting In re Ruhland, 442 N.W.2d 783, 785 (Minn.1989)). The petition for disciplinary action in this case alleged that Rudawski violated Minn. R. Prof. Conduct 5.5(a) when he “practiced law during the period of January 23, 2003, through August 13, 2003, while he was on involuntary restricted status for failure to comply with CLE requirements.” Rule 5.5(a) states that a lawyer shall not “practice law in a jurisdiction where to do so violates the regulation of the legal profession in that jurisdiction.” This court regulates the legal profession in Minnesota. See In re Crissey, 645 N.W.2d 141, 143 (Minn.2002).

On January 23, 2003, this court ordered that Rudawski be “hereby placed on ‘involuntary restricted status,’ as defined in Rule 12 of the Rules of the Minnesota Board of Continuing Legal Education.” Rule 12(B)(1) provides: “A lawyer [on restricted status] may not engage in the practice of law or represent any person or entity in any legal matter or proceedings within the State of Minnesota other than himself or herself.” On August 13, 2003, this court reinstated Rudawski “to active status as an attorney licensed to practice law.” Rudawski concedes that, during the time period from January 23 through August 13, 2003, he appeared in court many times on behalf of clients and drafted, filed, signed, and served “dozens of legal pleadings and memoranda.” Rudawski nonetheless argues that the Director “has failed to prove by clear and convincing evidence that [Rudawski] violated any of the rules,” and contests the referee’s conclusion to the contrary.

We first address Rudawski’s challenges to the referee’s findings of fact and conclusion of law. With respect to finding 11, Rudawski contends that “he did not have any knowledge that he. was on involuntary restricted status.” He further contends that “In fact, he thought he was on active status.” Having carefully reviewed the record, we are satisfied that there is ample evidentiary support for finding 11. Therefore, we conclude that finding 11 is not clearly erroneous. Notwithstanding Rudawski’s argument that he had no knowledge that he was on involuntary restricted status and that Kautzer’s letter of March 24, 2003, “never indicates that Jerome M. Rudawski was placed on involuntary restricted status,” we reach the same conclusion with respect to finding nuniber 12. As for Rudawski’s contention with respect to findings 11 and 12 that he had no knowledge that he was on involuntary restricted status, we note that the contention is inconsistent with the record before us. There is no question that this court placed Rudawski on involuntary restricted status by order on January 23, 2003, and that he was not reinstated until this court’s August 13, 2003, reinstatement order. Having been placed on involuntary restricted status by order from this court, Rudawski had to have known that to be reinstated an order of this court was required. Any belief on his part to the contrary was unreasonable.

Finding 13 involves an April 24, 2003, letter sent by Kautzer to Rudawski, which Rudawski contends he did not receive. Rudawski’s challenge to finding 14 calls into question the referee’s'determination as to when Rudawski’s affidavit of compliance was- sent to the Board. Both of these findings ar.e based on the referee’s resolution of disputed testimony and credibility determinations. On this record, we are not “left with the definite and firm conviction that a mistake has been made.” See In re Wentzell, 656 N.W.2d at 405. Moreover, in that the referee is in a better position, having been there to hear and see the witnesses, to resolve disputes with respect to the testimony at the hearing, and to make credibility determinations than this court is, we conclude that findings 13 and 14 are not clearly erroneous.

Finally, with respect to Rudawski’s challenges to findings 18 and 19 and the referee’s conclusion of law, we conclude that his denial “that he.intentionally practiced law while on voluntary restricted status” is without merit. As noted above, Rudawski knew that this court’s January 23, 2003, order placed him on involuntary restricted status. He makes no claim that he received an order from this court before this court’s August 13, 2003, order reinstating his license to active status. Absent such an order, he had to have known that any practice of law on his part between January 23 and August 13, 2003, was unauthorized. On that basis, we conclude that the referee’s findings of fact and the conclusions of law challenged by Ru-dawski are not clearly erroneous. We also conclude, on the record before us, that the Director has established by “full, clear, and convincing” evidence that Rudawski engaged in the unauthorized practice of law in violation of Rule 5.5(a).

Having determined that Rudawski violated Rule 5.5(a), we turn our attention to the appropriate discipline for Rudawski’s misconduct. “The purpose of disciplinary sanctions for professional misconduct is not to punish the attorney, but rather ‘to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.’ ” In re Vaught, 693 N.W.2d 886, 890 (Minn.2005) (quoting In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004)). “Although a referee’s recommendation for discipline carries great weight, we have final responsibility for determining whether discipline is appropriate and, if so, the type of discipline to be imposed.” In re Edinger, 700 N.W.2d 462, 467 (Minn.2005).

We consider four factors in determining the appropriate sanction: (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. Disciplinary actions are imposed on a case-by-case basis after considering both aggravating and mitigating circumstances, as well as looking to similar cases for guidance.

In re Vaught, 693 N.W.2d at 890 (citation omitted).

In seeking a disciplinary sanction greater than that recommended by the referee, the Director relies on In re Wertz, 442 N.W.2d 781 (Minn.1989), and In re Beman, 451 N.W.2d 647 (Minn.1990). In In re Wertz, the attorney stipulated that she had knowingly practiced law for almost two years while on restricted status for failure to complete CLE credits. 442 N.W.2d at 781-82. She and the Director jointly recommended that she be suspended for 90 days and this court approved the recommendation. Id. at 782. In In re Beman, the attorney had practiced while on CLE restricted status for more than nine years. 451 N.W.2d at 647. The order in In re Beman is silent on whether Beman knew, reasonably should have known, or did not know that he had been practicing without a license. Id. After a hearing, Beman and the Director entered into a joint agreement recommending a minimum 180-day suspension. Id. at 647-48. In imposing a lesser suspension of 90 days, we wrote:

Since this is the first time the matter has come before the court and since there are no allegations of noncompliance resulting in any harm to the public, the court has reduced the period of suspension to three months. The bar, however, is placed on notice that henceforth we shall consider noncompliance with CLE requirements to be a very serious matter and may well result in more stringent disciplinary sanctions being imposed.

Id. at 648.

In seeking a disciplinary sanction less severe than that recommended by the referee, Rudawski argues that his case is most closely analogous to In re Quinn, 605 N.W.2d 396 (Minn.2000). Quinn admitted that he had engaged in the unauthorized practice of law for over 16 years by practicing while on CLE restricted status and while suspended for nonpayment of attorney registration fees. Id. at 396. Quinn entered into a stipulation with the Director jointly recommending that Quinn be publicly reprimanded, placed on two years of unsupervised probation, and be required to pay $900 in costs. Id. This court “independently reviewed the file and approve[d] the jointly-recommended disposition.” Id.

In that we conclude that some period of suspension is appropriate, but that the length of suspension recommended by the Director is greater than necessary to protect the public and the judicial system and to deter further misconduct by Ru-dawski as well as other attorneys, we adopt the recommendation of the referee and order that:

1. Rudawski is suspended from the practice of law for 60 days. The suspension, as ordered, shall commence 15 days after the date this opinion is filed. Rudawski may apply for reinstatement by filing an affidavit pursuant to Rule 18(f), RLPR.
2. Rudawski shall take and successfully pass the professional responsibility portion of the Minnesota Bar Exam within one year of the date of this opinion.
3. Rudawski must comply in all re- ' spects with Rule 26, RLPR.
4. Rudawski shall pay to the Director the sum of $900 in costs and disbursements pursuant to Rule 24(a), RLPR.

So ordered.

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.

      . As of that date, Rudawski actually needed 24.25 additional hours to meet his 45-hour requirement.


source: Caselaw Access Project

author: ANDERSON, G. BARRY, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Jeffery Lamar YOUNG, Appellant.
    No. A04-0613.
    Supreme Court of Minnesota.
    March 2, 2006.
    See also 695 N.W.2d 578.

      ■ Bradford William Colbert, St. Paul, for appellant.

      Mike Hatch, Atty. Gen., St. Paul, Robert M.A. Johnson, .Anoka County Atty., Robert D. Goodell, Asst. County Atty., Anoka, for respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

Jeffery Lamar Young appeals from his convictions of first-degree felony murder; second-degree intentional murder, second-degree assault, and kidnapping. Young requests a reversal of his murder convictions based on insufficient evidence. In the alternative, alleging error on several grounds, Young seeks a new trial. Because sufficient evidence sustains the murder convictions and there is no error warranting a new trial, we affirm.

This direct appeal arises out of the murder of Curtis Anthony, the assault and kidnapping of Precious Franklin, and the assault and kidnapping of R.E., Franklin’s son. Anthony was attacked and shot at Franklin’s apartment in the early morning hours of November 3, 2002. He later died as a result of the gunshot wound. Lennell Martin was also convicted of Anthony’s murder. See State v. Martin, 695 N.W.2d 578, 582 (Minn.2005).

Anthony, at the time of his death, had been living with Franklin and her son, R.E., for about two months. Anthony had previously been involved in a relationship with Monique Frye and they had a daugh-r ter together. Frye is a cousin of Martin and Young. Frye had previously called Martin and Young when she had problems with Anthony “so they could talk to [Anthony] and calm him down.” Frye eventually applied for a restraining order against Anthony. She testified that she applied for the order because Anthony threatened to shoot her and her boyfriend. Frye also testified that Young had encouraged her to use the court system to resolve her issues with Anthony and that Young had once calmed Anthony when Anthony began to get belligerent with the police. The day before Anthony’s death, Anthony went to his daughter’s dance studio, an area included in the order.

On the morning of November 3, 2002, at approximately 4:00 "a.m., Franklin awoke and went to check on R.E. She noticed that her kitchen light was on and when she entered her kitchen she was confronted by a man holding a gun and a man holding a knife. Franklin testified that she did not know the men. She screamed and ran into the bedroom, waking Anthony. The two men followed Franklin into the bedroom, pointing the gun at both Anthony and Franklin. R.E. entered the bedroom and joined Franklin and Anthony on the bed. Franklin and Anthony pleaded with the men for R.E.’s safety. The man with the gun took Franklin’s arm and placed her and R.E. in the bathroom. While in the bathroom, Franklin heard the men “interrogating” Anthony and she heard Anthony say “I don’t know where” and “cousin.” She ■ also heard Anthony “making noises like he was hurt.”

During this time, Franklin’s upstairs neighbor had heard Franklin’s scream and had walked outside the building to investigate. He saw a greenish-colored Cadillac parked near the apartment building. He came báck inside and knocked at Franklin’s door. While at the door, the neighbor heard . a man say, “That’s my money.” Franklin heard a knock on her door, followed by a gunshot and noises as if people were running out of the apartment. The neighbor also heard the gunshot and ran upstairs to his apartment to call the police. Franklin emerged from the bathroom and saw Anthony bent over, bleeding heavily and having difficulty breathing. Franklin testified that Anthony told her, “Call the police. Jeff and Lenair” or “Call the police. It’s Jeff and Lennell.” By the time the police arrived Anthony was unable to say anything more than that he could not breathe. He stopped breathing within minutes of the arrival of the police.

The police officer who spoke with Franklin at the scene testified that Franklin told him that there were two perpetrators and that one perpetrator’s name was “Lenny” or “Lennell.” Franklin was later interviewed by a detective who testified that Franklin stated that Anthony had told her to call the police and tell the police “Jeff and Lenair or Lennell.” Franklin later approached the detective and told him she had spoken with Anthony’s sister and that “Jeff and Lennell” were cousins of Anthony’s former girlfriend. Police spoke with Frye, who gave them the full names of Young and Martin. Later that day, Franklin identified Martin out of a photographic lineup as the perpetrator who had carried the gun. After she made that identification, she pointed to another picture on the lineup and indicated that she thought that was the other suspect “but I told them that I wasn’t absolutely positive but some of the traits were similar.” Franklin testified that at that point the police told her “No. No. The second suspect isn’t on this one.” The next day, Franklin identified Young out of a separate photographic lineup.

The day after Anthony was shot, Young and Martin voluntarily went to talk to the police. In his statement to police, Young said he did not know where Anthony lived and that he was at his sister’s home at the time Anthony was killed. Blood found in Martin’s vehicle, a blue-green Cadillac, matched Anthony’s DNA profile. Other blood found in the vehicle contained a mixture of DNA profiles. The predominant profile in the mixture matched Anthony’s profile, and Young and Martin could not be excluded as contributors to the mixture. Young’s fingerprint was found on the driver’s window in Martin’s car. In addition, a handwritten note containing directions to Franklin’s apartment was found in Young’s vehicle. A handwriting expert testified that there were indications that Young had written the note but was unable to make a positive identification of the author. At trial, Young presented expert testimony that no blood had been found in his car or on his or Martin’s clothing. In addition he presented the testimony of three character witnesses.

Young was convicted of first-degree felony murder, second-degree intentional murder, two counts of second-degree assault and two counts of kidnapping. He was acquitted of first-degree premeditated murder. Young was sentenced to life imprisonment for the first-degree felony murder conviction. The district court imposed sentences of 36 months imprisonment for each of the assault convictions and sentences of 36 and 58 months for the kidnapping convictions. Each of these four sentences was imposed concurrently with Young’s life sentence. Young directly appeals his convictions to this court.

Young raises the following six issues on appeal:

1. Was the evidence sufficient to support Young’s convictions of first-degree felony murder and second-degree intentional murder?

2. Did the state commit misconduct in closing argument, and, if so, does such misconduct constitute reversible error?

3. Did the district court commit reversible error when it permitted the state to introduce Franklin’s previous identification of Young?

4. Did the district court commit reversible error by denying Young’s motion to remove a juror for cause?

5. Did the district court’s admission of Anthony’s hearsay statement constitute reversible error?

6. Did the district court commit reversible error by refusing the jury’s request during deliberations for a transcript of Franklin’s testimony?

I.

Young was convicted of first-degree felony murder, Minn.Stat. § 609.185(a)(3) (2004); the underlying felony was burglary. Young was also convicted of second-degree intentional murder, Minn.Stat. § 609.19, subd. 1(1) (2004). Both of these crimes require an intentional killing. See Minn.Stat. §§ 609.185(a)(3), 609.19, subd. 1(1). Young argues that the evidence was insufficient to show that he committed Anthony’s murder intentionally, and therefore he asks this court to reverse his convictions of first and second-degree murder. The state argues that there is sufficient evidence to show that Martin intentionally killed Anthony and that Young is liable as an accomplice under Minn.Stat. § 609.05 (2004).

When reviewing sufficiency of evidence, we inquire “whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jury could reasonably find that the defendant was guilty of the charged offense.” State v. Pierson, 530 N.W.2d 784, 787 (Minn.1995). We view the evidence in the light most favorable to the verdict. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989).

To convict Young under Minn.Stat. § 609.185(a)(3) or Minn.Stat. § 609.19, subd. 1(1), the state must prove that Young, or someone for whose crimes Young is liable under Minn.Stat. § 609.05, caused the death of Anthony “with intent to effect the death of [Anthony] or another.” Minn.Stat. §§ 609.185(a)(3), 609.19, subd. 1(1). In this case, the state did not seriously pursue the theory ■ that Young actually shot Anthony, and instead argued, both to the jury and on appeal, that Young is liable for the crimes of Martin under section 609.05. Accordingly, the evidence is sufficient to support Young’s convictions if there is: (1) sufficient evidence for a jury to reasonably find that Martin caused the death of Anthony with the intent to effect the death of Anthony, and (2) sufficient evidence for a jury to reasonably find Young liable for Martin’s crimes under section 609.05.

A. Whether sufficient evidence exists for the jury to. reasonably find that Martin possessed the requisite intent to kill.

Martin had the intent required by MinmStat. §§ 609.185(a)(3), 609.19, subd. 1(1), if he either had a purpose to kill Anthony or believed that his actions, if successful, would kill Anthony. See Minn. Stat. § 609.02, subd. 9(4) (2004). “Intent is an inference drawn by the jury from the totality of circumstances.” State v. Raymond, 440 N.W.2d 425, 426 (Minn.1989). A conviction based on circumstantial evidence will stand only if the circumstantial evidence forms “a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.” State v. Leake, 699 N.W.2d 312, 319-20 (Minn.2005) (citation omitted). A jury may infer a person’s intent to kill from the nature of the killing. State v. Darris, 648 N.W.2d 232, 236 (Minn.2002).

Young argues that the evidence suggests that the shooting was more likely an accident than an intentional killing. Viewing the evidence in a light most favorable to the verdict, however, the evidence is strong that the killing of Anthony was not accidental. As the state points out, Martin brought a loaded gun with him as he burglarized the apartment. Martin removed Franklin and R.E. from the bedroom where Anthony was, and then returned to the bedroom and shot Anthony. Moreover, the gunshot wound was not the only injury Anthony suffered. The medical examiner testified that Anthony suffered an approximately inch-deep, non-lethal stab wound to his neck, as well as defensive lacerations to his thumb. In addition, Anthony suffered a fractured larynx. The jury could reasonably infer that the gunshot that killed Anthony was not accidental, but instead the last act in a series of acts committed for the purpose of killing Anthony. This circumstantial evidence excludes, beyond a reasonable doubt, any reasonable inference other than that Martin had the intent to kill Anthony when he caused Anthony’s death.

B. Whether sufficient evidence exists for the jury to reasonably find that Young was liable for the crimes of Martin under section 609.05, subd. 1.

Under Minn.Stat. § 609.05, subd. 1, Young is hable for Martin’s murder of Anthony if Young intentionally aided, advised, hired, counseled, conspired with or otherwise procured Martin to kill Anthony. Jurors can infer the necessary intent from factors including: “defendant’s presence at the scene of the crime, defendant’s close association with the principal before and after the crime, defendant’s lack of objection or surprise under the circumstances, and defendant’s flight from the scene of the crime with the principal.” Pierson, 530 N.W.2d at 788.

The record contains more than sufficient evidence to find that Young intentionally aided Martin in the murder of Anthony. Young and Martin burglarized the apartment together, and the jury could reasonably infer from Franklin’s testimony that Young stood guard over Anthony while Martin removed Franklin and R.E. from the eventual murder scene. After Anthony was shot, Young fled the scene with Martin. In addition, there is evidence that Young personally possessed the intent to kill Anthony, because Franklin saw Young holding a knife and Anthony suffered a knife wound to his neck as well as defensive lacerations to his hands. We conclude that there is sufficient evidence to hold Young liable for Martin’s intentional murder of Anthony under Minn.Stat. § 609.05, subd. 1, and consequently there is sufficient evidence to sustain Young’s convictions of first-degree felony murder and second-degree intentional murder.

II.

Young argues that the prosecutor engaged in misconduct in closing argument, and that such misconduct warrants reversal of his convictions. Young alleges three types of misconduct occurred: (1) that the prosecutor engaged in “name-calling,” (2) that the prosecutor improperly argued that the presumption of innocence no longer applied to Young, and (3) that the prosecutor presented the jury with a motive for the murder that was unsupported by the evidence.

Young did not object to any of the alleged misconduct during trial. In the absence of objection at trial, we review the defendant’s claim of prosecutorial misconduct to determine if plain error occurred. State v. MacLennan, 702 N.W.2d 219, 235 (Minn.2005). Plain error consists of (1) error, (2) that is plain, and (3) affects substantial rights. Leake, 699 N.W.2d at 327. If the error was prejudicial and affected the outcome of the case, the third prong of this test is met. Id. Plain error is considered prejudicial if “there is ‘a reasonable likelihood’ that the error ‘had a significant effect’ .on the.jury’s verdict.” Id. (quoting State v. Griller, 583 N.W.2d 736, 741 (Minn.1998)). If all three prongs of the plain error test are met, we then determine “whether we should address the error to ensure fairness and the integrity of the judicial proceedings.” Id. When evaluating alleged misconduct, we look to the closing argument as a whole. State v. Powers, 654 N.W.2d 667, 679 (Minn.2003).

A. The prosecutor’s reference to Young and Martin as “cowards.

Young argues that the prosecutor’s description of Young and Martin as “cowards” constituted misconduct. During closing argument, while describing the sequence of events surrounding the murder, the prosecutor said:

Eventually, they shot [Anthony].. Right in the chest. And as he lay — or is standing there bleeding profusely, grasping at any straws left of life, the two cowards, Jeff and Lennell, ran out of the apartment, got into the green Cadillac, the getaway car, and. left the scene, and left Curtis Anthony to die there.

Character attacks during ■ closing arguments are improper, but “parties are permitted to argue reasonable inferences from the facts presented at trial.” Leake, 699 N.W.2d at 328. The state concedes that in the usual case reference to a defendant as a “coward” would likely constitute misconduct, but argues, based on Young’s introduction of evidence of his good character,that the statement was not improper. But, even if the reference to Young as a “coward” constituted prosecutorial misconduct, this isolated statement does not constitute prejudicial error. The reference to Young as a “coward” was not repeated, the jury acquitted Young of premeditated murder, and the jury was properly instructed' that the arguments of attorneys were not evidence. See State v. Washington, 521 N.W.2d 35, 40 (Minn.1994). There is no reasonable likelihood that the prosecutor’s isolated reference to Young as a “coward” had a significant effect on the jury’s verdict, and therefore, even if this reference was error, it is not reversible error.

B. Presumption of innocence.

Young next argues that the following portion .of the prosecutor’s final argument was improper:

Wfiien the trial began, the Court told you that that young man right there is an innocent man. He was. Until the defense stood up and rested. Because at that time the state had presented to you sufficient evidence to find the defendant guilty of all the crimes that the Court just gave you the — instructions on. He’s no long [sic] an innocent man. The evidence’ that’s been presented to you by the state has shown you that he’s guilty beyond a reasonable doubt. Let me tell you why[.]

Young claims that this statement amounted to a claim that Young was not entitled to the presumption of innocence when the jurors began their deliberation. Read in context, however, the prosecutor’s argument appears to be that the state had produced sufficient evidence of Young’s guilt to overcome the presumption of innocence, not that he was not entitled to the presumption in the absence of proof ber yond a reasonable doubt. The language used by the prosecutor is analogous to the language used to describe the presumption of innocence in CRIMJIG 3.02. See 10 Minn. Dist. Judges. Ass’n,. Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.02 (4th ed. 1999) .(“The defendant is presumed innocent of the charge made. .This presumption remains with the defendant unless and until the defendant has been proven guilty beyond a reasonable doubt.”) (emphasis added). We have previously recommended that, when explaining the presumption of innocence, counsel would be wise to “ ‘adopt some definition which has already received the general approval of the authorities, especially those in our own state.’ ” State v. Bohlsen, 526 N.W.2d 49, 50 (Minn.1994) (quoting State v. Sauer, 38 Minn. 438, 439, 38 N.W. 355, 356 (1888)). The argument of the prosecutor was not a misstatement of the law, and did not constitute error.

C. Speculation regarding motive.

The state’s closing argument is not required to be “colorless, [but] it must be based on the evidence produced at trial, or the reasonable inferences from that evidence.” State v. Porter, 526 N.W.2d 359, 363 (Minn.1995). Young alleges that the prosecutor committed misconduct in closing argument by misstating the evidence and speculating about the motive for the murder. The prosecutor stated:

Why would somebody, do this to [Anthony]? Nobody knew. Nobody could give a reason why Curtis Anthony was killed. Did anybody- have a reason? You’ve got enough facts before you to form a few reasons. Was Monique Frye pregnant with Curtis’s baby? She told [you that] she last slept with Curtis in October. Did she find out she was pregnant? And Curtis snuffed her and went back to Precious? So Monique cried to Jeffery arid Lennell, “You’ve got to help me.' Curtis won’t take' care of this baby. He’s dumping me.” And Jeff and Len-nell, as they’ve done in the past, go to Monique’s rescue? Is' that the motive? Sounds pretty harsh.
The only people that really know are those people that were in the room that night. Jeff, Lennell and Curtis. Curtis can’t tell us why.

Frye testified that her sexual relationship with Anthony ended in August of 2002, not October of 2002. While misstating a date is not ordinárily a basis for a claim of prosecutorial misconduct, absent the incorrect date, the prosecutor’s argument becomes implausible. Since the child with whom Frye was pregnant at the time of Anthony’s murder was born in July of 2003, it is not reasonable to infer that Anthony was the father of the child or that Frye thought Anthony was the child’s father. This portion of the prosecutor’s closing argument was error, and, in light of Porter, the error was plain.

While this portion of the argument constituted plain error, there is no reasonable likelihood that the error had a significant effect on the jury’s verdict. The impact of improper speculation was lessened because the prosecutor emphasized that no one knew the actual motive. In light of this qualification of the improper statements, the jury’s acquittal of Young of premeditated murder, and the fact that the jury was instructed that the arguments of the attorneys were not evidence, the error was not prejudicial.

III.

At trial Franklin identified Young and also testified that she had identified Young through a pretrial photographic lineup. On appeal Young challenges the admission of this evidence, arguing that Franklin assumed that a suspect was in the photographic lineup. Based on this assumption, Young argues that the district court’s admission of Franklin’s pretrial identification of Young violated Young’s right to due process because the lineup was unnecessarily suggestive and created a very substantial likelihood of misidentification.

A two-part test is'used to determine whether pretrial eyewitness identification testimony must be suppressed. State v. Ostrem, 535 N.W.2d 916, 921 (Minn.1995). The first determination is whether the pretrial identification procedure was unnecessarily suggestive. Id. If the procedure is found to be unnecessarily suggestive, the identification evidence may still be admissible as long as “the .totality of the circumstances establishes that the evidence was reliable.” Id.

When determining whether an identification procedure was unnecessarily suggestive, we inquire “whether the procedure used by the police influenced the witness identification of the defendant.” State v. Taylor, 594 N.W.2d 158, 161 (Minn.1999). The key factor in considering whether an identification procedure was unnecessarily suggestive is whether the defendant was unfairly singled out for identification. Ostrem, 535 N.W.2d at 921.

Young argues that the procedures used by police were unnecessarily suggestive because they led Franklin to believe that a suspect was in the second lineup. Although it is possible that Franklin assumed a suspect was in the lineup when she made her identification of Young, it is far from clear that this was her assumption and even less clear that police led her to that assumption. She testified that the police brought the lineup so ■ she could, “identify the second suspect,” and to “verify the second suspect that came into my home,” but she also testified that the police read her the standard advisory — stating that the suspect may or may not be in the lineup — before she made her identification. In addition, Young has not argued that the lineup “singled him out” in any way, and Franklin testified that the police did not give any indications regarding which photograph she should choose. We hold that the photographic lineup was not unnecessarily suggestive and did not violate Young’s right to due process.

iv.

Both the United States and Minnesota Constitutions guarantee criminal defendants the right to an impartial jury. U.S. Const, amends. YI, XIV; Minn. Const, art. 1, § 6; State v. Greer, 635 N.W.2d 82, 87 (Minn.2001). The exclusive grounds on which a juror may' be challenged for cause are found in Minn. R.Crim. P. 26.02, subd. 5(1). State v. Roan, 532 N.W.2d 563, 568 (Minn.1995). When reviewing the district court’s decision to remove a juror for cause, we give “deference to the trial judge because the trial judge is in the best position to observe prospective jurors.” Id.

Young argues that he was denied his constitutional right to an impartial jury because the district court refused to remove a juror whom Young challenged for cause. Young’s challenge is based on statements made by the juror in his questionnaire and in voir dire concerning the role of religion in the juror’s decision-making process. On his juror questionnaire, in response to the question “[w]hy do you feel you would be a good juror in this case?” the challenged juror wrote “[b]ecause I am a Christian who can ask for divine wisdom.” During voir dire, the following exchange occurred between the prosecutor and the juror:

Q: One thing that you said — and I just want you to explain it a little bit to me. Okay?
A: Uh-huh.
Q: Is that you felt that because you’re a Christian you could ask for divine wisdom.
A: Yes.
Q: So you would pray about making the right decision?
A: Yeah. You — you can — you—you can go with your mind and with your heart—
Q. Okay.
A: — And stuff.
Q: Okay. And you’d be able to incorporate all that — all the evidence that you hear into that. Right?
A: Yeah. I mean....
Q: And put it altogether [sic] to make your decision?
A: Yeah. That’s....
Q: Okay. How many hours a week do you work?

After the district court denied Young’s challenge for cause, Young decided not to use a peremptory challenge.

It is unclear on which ground of Minn. R.Crim. P. 26.02, subd. 5(1), Young is challenging the juror’s fitness to serve. Before the .district court, Young stated that the juror’s “religious beliefs would substantially prejudice the rights of Mr. Young.” . On appeal, Young references Minn. R.Crim. P. 26.02, subd. -5(1)(1), which relates to juror bias, but Young does not argue that this juror’s religious beliefs biased the juror against Young. Instead Young appears to argue that the juror’s statement that he could “ask for divine wisdom,” or pray, when making his decision showed that the juror would not base his decision on the evidence and jury instructions. But Young offers no support establishing that the juror’s reliance on prayer was in place of an evaluation of the evidence presented or a refusal to follow the law as instructed. Nor does Young produce authority for his argument that a district court’s refusal' to remove a juror who relies, in part, on prayer to make his or her final decision is an abuse of discretion. Young’s argument for disqualification of a juror who relies on prayer is without merit. We. hold that the district court did not abuse its discretion in denying Young’s motion to remove the juror for cause.

V.

In his pro se' supplemental brief, Young argues that the admission of Anthony’s hearsay' statement; “Call the police. Jeff and Lenair,” constitutes reversible error. Young argues that this statement was not admissible as a dying declaration or an excited utterance, and that its admission violated Young’s Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Young concedes that he did not object at trial to the admission of this hearsay statement. In the appeal of Young’s codefendant, Lennell Martin, we held that the district court did not abuse its discretion in admitting Anthony’s statement under the dying declaration exception to the hearsay rule. Martin, 695 N.W.2d at 584. We also held that “the admission into evidence of a dying declaration does not violate a defendant’s Sixth Amendment right to confrontation ■within the meaning of Crawford because an exception for dying declarations existed at common law and was not repudiated by the Sixth Amendment.” Id. at 585-86. After reviewing the evidence in this case, we hold that the evidence in the two cases relating to this issue does not differ in any material respect. The district court did not abuse its discretion in admitting Anthony’s hearsay statement as a dying declaration.

VI.

While in deliberations, the jurors requested “a copy or recording” of Franklin’s testimony. The district court denied this request. In his pro se supplemental brief, Young argues that the district court committed reversible error by denying the jury’s request to review Franklin’s testimony. Young concedes that he personally waived his right to be present in the event the jury returned with a request to see a transcript of testimony or to have testimony read to them. Young’s counsel indicated in advance that she agreed with the district court’s “standard answer” of denial of such requests by the jury, and she failed to object when the district court, after answering the jury’s question, described the response given. A defendant may waive review of the district court’s determination regarding the review of testimony by failing to object before the district court. State v. Smith, 582 N.W.2d 894, 896 (Minn.1998). We may still review the district court’s decision for plain error. Griller, 583 N.W.2d at 740.

A district court has broad discretion when determining whether to allow jurors to review testimony during deliberations. State v. Lane, 582 N.W.2d 256, 259 (Minn.1998). Young argues, however, that the district court failed to exercise its discretion by imposing a “blanket rule” against allowing the jury to review testimony. He bases this claim on the district court’s statement to Young and trial counsel that its “standard answer is, ‘No. You have to take evidence altogether and you have to remember what it is you heard.’ ” The district court continued, “Presuming that you’re in agreement with that response, what I want to know is does — is it necessary to pull us all back together into the courtroom simply to give them that response if they’re asking for something that has to do with somebody’s testimony?”

We have indicated that district courts cannot follow a “blanket rule” in denying such requests from the jury. State v. Rean, 421 N.W.2d 303, 306 (Minn.1988). But we have also held that, even if a district court makes its denial on the basis of a “blanket rule,” such a denial does not constitute error if the district court could have denied the request in a proper exercise of discretion. Id.

Franklin’s testimony concluded twelve days before the jury began deliberations and the state told the jury that Franklin’s testimony was key to the case against Young. See State v. Spaulding, 296 N.W.2d 870, 878 (Minn.1980) (noting that effect of district court’s blanket refusal to allow jury to review testimony “force[d] the jury to decide the case on the basis of sketchy memory of the evidence”). On the other hand, allowing the jury to review Franklin’s testimony could have given the testimony undue prominence. Lane, 582 N.W.2d at 260 (upholding a district court’s decision not to allow jury to review testimony, based, in part, on belief that the rereading of requested testimony would give it undue prominence). In addition, granting the jury’s request would have involved gathering 152 pages of transcript. “This court has made it clear that, when the jury requests review of. numerous pages of transcript, the trial court may deny the request.” State v. Daniels, 332 N.W.2d 172, 177 (Minn.1983). Based on these reasons, the district court could, in its discretion, deny the jury’s request. Therefore, the district court did not err in denying the jury’s request.

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.

      . At oral argument, Young also argued that, pursuant to Minn.Stat. § 611.02 (2004), if we had a "reasonable doubt” about the sufficiency of the evidence to support Young's convictions, we should reduce his felony murder conviction from first-degree to second-degree. We have found no authority supporting such use of the statute and decline to adopt Young's proposed application of Minn.Stat. § 611.02.

      . A juror may be challenged for cause on the ground of "[t]he existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.” Minn. R.Crim. P: 26.02, subd. 5(1)(1):


text:
    In re Petition for DISCIPLINARY ACTION AGAINST William C. PUGH, a Minnesota Attorney, Registration No. 195261.
    No. C7-97-1350.
    Supreme Court of Minnesota.
    March 2, 2006.
   OPINION

PER CURIAM.

William C. Pugh was admitted to the practice of law in Minnesota on October 28,1988. On July 25,1997, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action seeking to have Pugh disbarred based on Pugh’s misappropriation of over $1 million from a real estate closing company he owned. As a result of his misappropriation, Pugh was indicted in federal court on 34 felony counts, including mail fraud, wire fraud, interstate transportation of money obtained by fraud, money laundering, concealment of material facts, and causing the unlawful act of another. A jury found Pugh guilty of 33 of the counts in the indictment. In addition to the director filing the petition for disciplinary action on July 25, the director and Pugh entered into a stipulation suspending Pugh from the practice of law. The stipulation provided that Pugh was not required to file an answer to the petition until appellate review of his criminal conviction was completed. Pursuant to the stipulation, we suspended Pugh from the practice of law and extended the time for Pugh to file his answer until appellate review of his conviction was completed.

Pugh’s appeal of his convictions was unsuccessful and, in 2003, the director moved this court to appoint a referee for a hearing. The Honorable Norbert P. Smith was appointed as referee, and a hearing was held on July 12, 2005. At the hearing, the director requested Pugh’s disbarment for violating Minn. R. Prof. Conduct 8.4(b) and (c). Neither the director nor Pugh called witnesses.

The referee found that Pugh owned and operated Sierra Title Company, a real estate closing company. Sierra Title Company held funds and insurance premiums that belonged to buyers and sellers of real estate, lenders, and a title insurer. The funds were to be distributed as part of real estate closings. Pugh misappropriated over $1 million of these funds,.which he used to finance his business interests and to enhance his personal lifestyle. .

Pugh was ultimately indicted on 34 felony counts. On June 30, 1997, a jury found Pugh guilty of 33 of the charged counts. He was sentenced to 78 months’ imprisonment and was ordered to pay $1,245,000.00 in restitution to Commonwealth Land Title Insurance Co. On direct appeal, the United States Court of Appeals for the Eighth Circuit affirmed 32 of Pugh’s convictions. United States v. Pugh, 151 F.3d 799, 800 (8th Cir.1998). Finally, in 2003, the Eighth Circuit, remanded the case to a magistrate judge for a hearing regarding the issue of the amount of restitution Pugh owed. United States v. Pugh, 75 Fed.App’x 546, 547 (8th Cir.2003). In doing so, the court emphasized that the “hearing will not be an opportunity for Pugh to challenge the validity of the underlying conviction or restitution obligation.” Id.

The referee further found that Pugh’s argument that “his actions were common business practice ⅜ ⅜ * is an improper attempt to re-litigate the underlying conviction in disregard of Rule 19, Rules on Lawyers Professional Responsibility (RLPR).” The referee concluded that Pugh engaged in misconduct in violation of Minn. R. Prof. Conduct 8.4(b) and (c) by committing criminal acts ¡that- reflect adversely on a lawyer’s honesty, trustworthiness, and fitness as a lawyer. Therefore, the referee recommended that Pugh be disbarred from the practice of law and pay $900 in costs plus disbursements.

Neither the director nor Pugh disputes the referee’s findings and conclusions. Moreover, Pugh admits' that he committed the acts undérlying his convictions. Therefore, the only issue presented in this case is the appropriate discipline. In considering a petition for disciplinary action, we have the ultimate responsibility for determining the appropriate sanction. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). “The purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” Id. (citing In re Daffer, 344 N.W.2d 382, 385 (Minn.1984)).

We consider four factors in determining the appropriate sanction: (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. Id. Appropriate sanctions are determined on a case-by-case basis after considering both aggravating and mitigating circumstances. In re, Wentzell, 656 N.W.2d 402, 408 (Minn.2003). We look to similar cases for guidance in setting the proper discipline. In re Thedens, 557 N,W.2d 344, 347 (Minn.1997).

Generally, felony convictions warrant “disbarment, unless significant mitigating factors exist.” In re Anderley, 481 N.W.2d 366, 369 (Minn.1992). The ABA Standards for Imposing Lawyer Sanctions state that disbarment is appropriate when “a lawyer engages in serious criminal conduct, a necessary element of which includes * * * misrepresentation, fraud, extortion, misappropriation, or theft.” ABA Standards for Imposing Lawyer Sanctions, Rule 5.11(a) (1992). Pugh was convicted of mail and wire fraud, interstate and foreign transportation of money obtained by fraud, money laundering, and fraudulent concealment of material facts. Therefore, under the ABA Standards, disbarment would be an appropriate sanction.

In cases similar to this one, we have disbarred attorneys convicted of mail fraud and money laundering. See, e.g., In re Perez, 688 N.W.2d 562, 565, 569 (Minn.2004) (disbarring attorney convicted of felony mail fraud related to his practice of law); Oberhauser, 679 N.W.2d at 154-55 (disbarring attorney based on conviction of money laundering); In re Klane, 659 N.W.2d 701, 701 (Minn.2003) (disbarring attorney who committed felony mail fraud in representing a trust); In re Koss, 611 N.W.2d 14, 14-15 (Minn.2000) (disbarring attorney convicted of felony mail fraud and racketeering); Anderley, 481 N.W.2d at 368, 370 (disbarring attorney based on a conviction of mail fraud); In re Kraemer, 361 N.W.2d 402, 403 (Minn.1985) (disbarring attorney for convictions of interstate transportation of stolen goods, mail fraud, conspiracy, and theft). We have also disbarred an attorney who misappropriated real estate sale proceeds received as a real estate closer. In re Ploetz, 556 N.W.2d 916, 916 (Minn.1996).

Here, Pugh argues that he should be subject to discipline short of disbarment, raising as mitigation the argument that the actions on his part that resulted in his convictions were condoned and accepted in the title industry at the time he committed them, that he did not intend to commit a crime, and that he was only convicted of the felonies because certain witnesses lied during his trial. As part of his argument, Pugh points out that he has not been the subject of previous complaints “that have warranted action from the Director.” He also emphasizes that his felonious conduct did not take place in his practice of law. The director, in arguing that Pugh should be disbarred, notes that Pugh’s claimed mitigating factors are merely an attempt to use this proceeding to relitigate his underlying convictions.

While we will consider mitigating factors in determining the appropriate discipline, “[a] lawyer’s criminal conviction in any American jurisdiction * * * ⅛ * * * conclusive evidence that the lawyer committed the conduct for which the lawyer was convicted.” Rule 19(a), RLPR. Because a conviction is conclusive evidence, we will not allow an attorney to relitigate the underlying facts of the conviction. In re Dvorak, 554 N.W.2d 399, 402 (Minn.1996).

Pugh’s mitigation arguments fail. They fail because they do nothing more than attempt to explain why he should not have been convicted for his actions. In essence, the arguments are nothing more than an impermissible attempt to relitigate his underlying convictions. Further, with respect to his argument that his conviction arose out of a common business practice, we note that the fact that criminal activity may have been a common business practice does not affect Pugh’s obligation to conduct himself according to the law and the ethical standards of the legal profession. As for Pugh’s argument that he did not intend to commit a crime, it is enough to note that “when the criminal conduct includes a specific state of mind, the conviction is conclusive evidence that the lawyer acted with that state of mind.” Oberhauser, 679 N.W.2d at 159. Here, either intent, knowledge, or willfulness is an element of each offense for which Pugh was convicted. 18 U.S.C. § 2 (2000) (causing the act of another); 18 U.S.C. § 1001 (2000) (concealment of material fact); 18 U.S.C. §§ 1341, 1343 (2000) (mail and wire fraud); 18 U.S.C. §§ 1956(a)(1)(B)®, 1957 (2000) (money laundering); 18 U.S.C. § 2314 (2000) (interstate and foreign transportation of property obtained by fraud). Therefore, the jury’s guilty verdicts are conclusive evidence that, in misappropriating the money, Pugh acted with the requisite criminal intent.

To the extent that Pugh suggests that his disciplinary sanction should be lighter because his misconduct did not involve the practice of law, that suggestion also fails. We have held in the past that a lawyer’s ethical obligations are not limited to actions occurring in the practice of law, but extend to business dealings unconnected with the practice of law. In re Peters, 428 N.W.2d 375, 380 (Minn.1988).

Finally, while we consider an attorney’s lack of previous discipline to be a mitigating factor when determining the appropriate sanction, lack of previous discipline alone will not mitigate severe misconduct. See In re Olsen, 487 N.W.2d 871, 875 (Minn.1992) (disbarring attorney for misappropriation of client funds when lack of prior discipline was sole mitigating factor). The record before us establishes that Pugh’s misconduct was not only serious, but continued over a period of more than three years, and resulted in the misappropriation of over $1 million from multiple clients of his real estate closing company. There being no other mitigating factors, Pugh’s lack of previous discipline does not mitigate the misconduct here. Given the seriousness of Pugh’s misconduct and the absence of mitigation, we conclude that disbarment is the appropriate disciplinary sanction.

Therefore, we order that William C. Pugh be, and hereby is, disbarred.

      . Pugh’s indictment indicates that he misappropriated funds from approximately November 1990 until approximately January 1994.

      . The last charge was dismissed by the prosecution.

      .While Pugh ordered a transcript of the referee hearing, with the result that the referee’s - findings and conclusions are not deemed conclusive under Rule 14(e), RLPR, he has not challenged any of the referee’s findings of fact or conclusions of law in these proceedings.


author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Gerald Arthur GILLESPIE, Appellant.
    No. A05-269.
    Court of Appeals of Minnesota.
    Feb. 28, 2006.

      Mike Hatch, Attorney General, John Garry, Assistant Attorney General, St. Paul, MN; and Jeffrey R. Edblad, Isanti County Attorney, Cambridge, MN, for respondent.
    Paul W. Rogosheske, Thuet, Pugh, Ro-gosheske & Atkins, Ltd., South St. Paul, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; SHUMAKER, Judge; and HALBROOKS, Judge.
   OPINION

LANSING, Judge.

A jury found Gerald Gillespie guilty of terroristic threats, false imprisonment, and fifth-degree domestic assault following a trial in which Gillespie represented himself. The conviction was based on testimonial and medical evidence that Gillespie assaulted his wife. On appeal from the denial of his motion for a new trial, Gillespie challenges the jury-selection process, the admission of the victim’s medical records and the testimony of her treating physician, and the district court’s failure to advise him that he could stipulate to his prior convictions. Because we conclude that the district court did not err by admitting the medical records and the physicians testimony and did not plainly err on the remaining issues, we affirm.

FACTS

Jury Selection

At the beginning of the trial, the district court indicated that it intended to call twenty prospective jurors for voir dire. This number represented eight more jurors than the court would need to impanel to serve on the twelve-person jury. The court told Gillespie he would receive five peremptory challenges and told the state it would receive three. The court then explained that Gillespie and the prosecutor would have the opportunity to question the jurors after the court completed its voir dire. When the court told Gillespie that he would have an opportunity to’ exercise his peremptory strikes after questioning was completed, Gillespie responded, “I’m not going to do any strikes.” The court explained to Gillespie that he was required to strike five jurors.

WTien the panel was drawn, only seventeen prospective jurors were available for voir dire. To be able to proceed, the court eliminated the state’s peremptory challenges. The court indicated that if it struck any prospective jurors for cause, it would ask Gillespie if he would be willing to give up some of his peremptory challenges. If Gillespie was not willing, the court would declare a mistrial and start over the next day. Gillespie did not object.

Before voir dire, the court went through the questions it would be asking the panel and asked Gillespie if there were any questions he would like the court to ask. Gillespie replied, “No comment.” During voir dire, four jurors each said that they had previously served on a criminal jury. The court asked those jurors how long ago they had served and whether they had reached verdicts.

In response to later questioning, two of the four jurors with past jury experience stated that they would find it difficult to be an impartial juror. The first said that she had experienced domestic violence within her family and initially indicated that she “would probably be pretty partial.” But after further questioning she confirmed that she was willing to be objective. Gillespie ultimately struck this juror peremptorily. The second of the two prospective jurors with past jury experience expressed disillusionment over the tactics one of the attorneys had used in the previous ease. But she nonetheless confirmed that she could listen to the facts objectively, and she was impaneled without objection. The remaining two jurors with past jury experience were also impaneled without objection.

After concluding its voir dire, the court told Gillespie that it was his opportunity “to ask any questions [he wanted] of the jurors.” Gillespie replied,‘“I have no questions.” The court then asked Gillespie if he passed the jury for cause. Gillespie responded, ‘Tes, oh, yes.” Gillespie then exercised his peremptory challenges.

Medical Evidence

Several months before trial, the státe applied for the release of the victim’s med ical records. The state provided the victim with a copy of the application, advised her how to contest' it, and stated that the court would likely release her records if she did not object. The victim did not respond. A week later, the court granted the application.

After receiving the records, the state filed a motion in limine, seeking to introduce the victim’s medical records, the testimony of her treating physician, and evidence of Gillespie’s prior domestic-assault convictions. When the district 'court asked Gillespie if he opposed the motion to admit the victim’s medical records and her physician’s testimony, Gillespie replied, “No comment.” When asked whether he opposed the motion to admit evidence of his prior convictions, Gillespie similarly replied, “No comment.” The court- granted the motion to admit the records and the physician’s testimony and took the prior-convictions issue under advisement. Before the second day of testimony began, Gillespie moved to exclude the physician’s testimony. The court denied the motion, reasoning that the issue previously had been decided.

The medical records reflected that a physician at a regional medical center examined the victim the day after she was assaulted and that her sister was present during the examination. At trial, the physician testified that the victim’s abdominal and neck muscles were tender and that he found bruises on the victim’s middle finger, right leg, and left wrist. The physician also testified that the victim told him that Gillespie had punched her stomach and head, pushed her onto a bed, put a pillow over her head, and sat on her. The victim also told the physician that Gillespie had abused her physically' and emotionally for seven- years. ■ The victim later conveyed the same information to a deputy sheriff. The information that the victim gave to law enforcement became the basis of the complaint against Gillespie.

This appeal follows the denial of Gillespie’s motion fqr a new trial.

ISSUES

I. Given its decision not to impanel any alternate jurors, did the district court plainly err by calling only seventeen ' prospective jurors for voir dire?

II. Did the district court plainly err by not asking prospective jurors who had previously served on criminal juries follow-up questions about their service?

III. Did the district court plainly err by not sua sponte striking, the jurors who initially indicated-partiality?

IV. Did the district court err by admitting the victim’s medical records and her physician’s testimony over Gillespie’s assertion of the physician-patient privilege?

V. Did the district court have a duty to advise Gillespie that he could stipulate to his prior'convictions?

ANALYSIS

Failure to object to an alleged error in the district court generally constitutes waiver of the right to raise the issue on appeal. State v. Litzau, 650 N.W.2d 177, 182 (Minn.2002). Despite having the opportunity to challenge the jury-selection procedure, Gillespie did not object to any part of the process. Nor did he object to the admissibility of his prior convictions. By failing to object, Gillespie waived consideration of these issues on appeal. See State v. Quick, 659 N.W.2d 701, 718 (Minn.2003) (stating that defendant who fails to object to jury-selection process forfeits right to object on appeal).

Nonetheless, the court may, in its discretion, consider plain errors affecting-substantial rights. Minn. R.Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). Plain errors are reversible only if they seriously affected the fairness, integrity, or public perception of the proceedings. Griller, 583 N.W.2d at 742.

I

Gillespie first argues that the district court violated Minn. R.Crim. P. 26.02, subd. 4, by calling only seventeen venire-members for voir dire. Gillespie’s argument lacks a solid base because it is premised on the erroneous assumption that the court was required to impanel alternate jurors.

Rule 26.02 prescribes three methods for selecting a jury. Under the first method, the district court must direct that as many prospective jurors be drawn and called as will equal the number of jurors who must be sworn plus the number of peremptory challenges available to both parties and the number of any alternate jurors. Minn. R.Crim. P. 26.02, subd. 4(3)(a)l. Under the second method, the court must direct that as many prospective jurors be drawn and called as will equal the number of jurors who must be sworn plus the number of any alternate jurors. Id., subd. 4(3)(b). The third method is not relevant to this ease.

The district court made it clear before and during voir dire that it intended to seat no alternate jurors. The court stated at the outset that the jury would be a twelve-person jury. The court then told the parties that it intended to call twenty prospective jurors for voir dire and noted that it was calling eight more people than would be seated. The court ultimately seated only twelve jurors. The decision not to impanel any alternate jurors was within the court’s discretion. See id., subd. 8 (providing that “trial judge may impanel alternate or additional jurors whenever in the judge’s discretion, the judge believes it advisable to have such jurors available to replace jurors who, pri- or to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties”). Because the trial lasted only one day, the court did not abuse its discretion by opting not to impanel any alternate jurors.

Given the court’s decision not to impanel alternate jurors, its decision to proceed to voir dire with only seventeen prospective jurors was not error. Under the first jury-selection method, the court was required to draw and call a minimum of seventeen prospective jurors (the twelve jurors required for a criminal trial plus the number of peremptory challenges available to both parties, which the court reduced to five, presumably to comply with the rule 26.02, subdivision 4(3)(a)l). Under the second method, the court was required to draw and call a minimum of twelve prospective jurors (the twelve jurors required for a criminal trial). The court did not err, therefore, by proceeding to voir dire with only seventeen veniremembers.

II

Gillespie next argues that the court committed plain error by failing to ask followup questions of prospective jurors who indicated that they had previously served on criminal juries. We disagree. Although it would have been preferable for the court to question these jurors further, the court’s limited voir dire did not constitute plain error under the circumstances of this case. ■ <

The purpose of voir dire is to probe the jury for bias or partiality to enable counsel to exercise informed peremptory challenges and challenges for cause. Minn. R.Crim. P. 26.02, subd. 4(1). The Constitution “does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992). Nonetheless, the defendant’s right to an impartial jury is guaranteed, in part, by an adequate voir dire that permits the identification of unqualified jurors. . Id. The scope of voir dire is ' committed to .the district court’s sound discretion. Mu’Min v. Virginia, 500 U.S. 415, 422, 111 S.Ct. 1899, 1904, 114 L.Ed.2d 493 (1991) (stating that court retains great latitude in deciding what questions should be asked on voir dire); Rosales-Lopez v. United States, 451, U.S. 182, 189, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981) (recognizing that trial judge’s first-instance obligation to impanel impartial jury must be accompanied with ample discretion to rely and act on immediate perceptions). The district court abuses its discretion if its failure to ask sufficient questions renders the defendant’s trial fundamentally unfair. Mu’Min, 500 U.S. at 425, 111 S.Ct. at 1905 (stating that questions are not constitutionally compelled simply because they “might be helpful”).

The rules of criminal procedure require the district court to ask prospective jurors any questions it deems necessary to ascertain their qualifications to serve ■ as jurors in the case on trial. Minn. R.Crim. P. 26.02,. subd. 4(1). The parties may supplement the court’s voir dire by questioning prospective jurors themselves. Id. Despite its broad discretion in determining the scope of voir dire, the court may not unreasonably limit counsel’s right to elicit sufficient information to determine if ■ a peremptory challenge is advisable. State v. Evans, 352 N.W.2d 824, 827 (Minn.App.1984).

In this case, the district court asked prospective jurors if they had previously served on a criminal jury. The information was significant because ia party may challenge for cause a prospective juror who previously servéd on a jury that tried another person for the same or a related offense. Minn. R.Crim. P. 26.02, subd-. 5(1)9. The court then asked if the jurors who had previously served on a criminal jury had reached a verdict in the other case. But' neither the court nor the parties asked follow-up questions to test the jurors for bias that might have resulted from their past jury service. ■

Ideally, the' district court should have inquired about the nature of the charges in the previous cases and the effect of the jurors’ past jury serviceten- their present ability to serve. See Darbin v. Nourse, 664 F.2d 1109, 1113 (9th Cir.1981) (stating that probing inquiry is necessary because general inquiries often fail to reveal relationships or experiences: that may cause upconscious or.unacknowledged bias). Because the district court’s questioning was sufficient to elicit the information necessary for the .parties .to test the prospective jurors for bias or partiality, the court’s limited voir dire did not constitute error.

Even if the court’s limited voir dire had constituted error, the error would not warrant a new trial for four reasons. First, Gillespie failed to object to the court’s limited voir dire. A criminal defendant. may not stand silently by during voir dire, acquiesce ■■ in the proceedings, and-accept the jury panel as constituted, only later to.assail the process on appeal. See State v. Stofflet, 281 N.W.2d 494, 497 (Minn.1979) (recognizing that allowing defendant to withhold objections and obtain new trial or acquittal based on resulting error would foster abuse of fair-trial procedures).

Second, Gillespie did not ask the court to conduct additional inquiry into the prospective jurors’ past service, even though the court extended the opportunity to both attorneys to submit additional questions. Presumably, Gillespie was satisfied that the district court’s inquiry was sufficient. See People v. Vieira, 35 Cal.4th 264, 25 Cal.Rptr.3d 337, 106 P.3d 990, 1004 (2005) (holding that defendant could not challenge district court’s refusal to include particular question in jury questionnaire because defendant did not request such question).

Third, Gillespie had the opportunity to inquire further into the jurors’ past service during his voir dire of the prospective jurors. See id. (holding that refusal to include particular question in jury questionnaire was not error so long as parties themselves had opportunity to ask question during voir dire). He may not now complain that the questioning was insufficient to test for bias.

Finally, Gillespie has not established that the court’s limited questioning made the trial fundamentally unfair. See Quick, 659 N.W.2d at 718 (finding no plain error when defendant failed to establish prejudice). No evidence indicates that the veniremembers who were not questioned extensively about their past jury service held specific biases that made Gillespie’s trial fundamentally unfair. Without more, past jury service does not establish bias.

Given the strength of the evidence against Gillespie, the lack of an objection, Gillespie’s failure to ask for a more thorough inquiry or to question the prospective jurors himself, and the absence of a showing of prejudice, reversal based on the court’s limited voir dire is unwarranted.

Ill

Gillespie next argues that the district court committed plain error by failing to strike sua sponte the two veniremembers who had previously served on a jury and who initially expressed reservations about their ability to be impartial. We disagree.

Challenges for cause must be initiated by motion. Minn. R.Crim. P. 26.02, subd. 5(1) (stating that “juror may be challenged for cause by either party ” (emphasis added)). A challenge for cause “may be oral and shall state the grounds on which it is based.” Id., subd. 5(2). The court’s role is to determine whether to sustain the challenge. See id. (defining district court’s duty on challenge for cause). Neither the caselaw nor the rules of criminal procedure impose on the district court a duty to strike prospective jurors for cause sua sponte. See State v. Yant, 376 N.W.2d 487, 491 (Minn.App.1985).

We have previously held that the district court did not have a duty to replace sleeping jurors sua sponte when the court believed that the defendant was not prejudiced and the defendant was apprised of the potential misconduct and declined to voir dire the jurors, replace them with alternates, or move for a mistrial. Id. at 491. In this case, as in Yant, the district court could reasonably have inferred from the defendant’s failure to object that, as a tactical matter, Gillespie was willing to retain the prospective jurors. Indeed, because the second of these two jurors had indicated that she was disappointed in lawyers, Gillespie may reasonably have concluded that it was to his advantage to retain her as a juror, and it may have been error for the district court to dismiss this juror for cause sua sponte.

Even if we concluded that the court had a duty to dismiss prospective jurors for cause sua sponte, the exercise of this duty is still subject to the district court’s discretion. See id. (applying abuse-of-discretion standard to sua sponte replacement of jurors). Both of the jurors initially indicated reservations about their ability to serve as an impartial juror. When the district court asked further questions, however, they indicated that they could be objective or impartial jurors. Because of this rehabilitation, the district court- did not abuse its discretion by not dismissing them for cause sua sponte.

The test of an impartial juror is that he “can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” State v. Andrews, 282 Minn. 386, 394, 165 N.W.2d 528, 534 (1969) (quotation omitted); see also State v. Alladin, 408 N.W.2d 642, 650 (Minn.App.1987) (“A juror must simply undertake to try the case fairly, and the trial judge, being in the best position to observe and assess the demeanor of the prospective juror, is to be given deference in determining whether the juror should be removed for cause.”). Gillespie’s claim of reversible error with respect to the first of these prospective jurors fails at the outset because he struck the juror peremptorily, and she was not impaneled. See Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 2277, 101 L.Ed.2d 80 (1988) (stating any claim that jury was not impartial must focus on jurors who ultimately sat). Even if Gillespie had not struck this juror, the court did not abuse its discretion by failing to strike her for cause sua sponte because she indicated her willingness to consider the evidence objectively. Similarly, the court did not abuse its discretion by not striking the second juror for cause, because the second juror ultimately concluded that she could listen to the facts objectively. Gillespie’s claim that the district court had a duty to dismiss these two veniremembers for cause sua sponte is unpersuasive.

IV

Gillespie also argues that the district court violated the victim’s physician-patient privilege by admitting the victim’s medical records and by allowing her physician to testify about statements the victim made in the course of treatment. We conclude otherwise.

The physician-patient privilege prevents medical providers from disclosing information acquired in the context of a physician-patient relationship. Minn.Stat. § 595.02, subd. 1(d) (2004). The purpose of the privilege is to encourage patients’ full disclosure of information, which will enable medical providers to extend the best medical care possible. See State v. Staat, 291 Minn. 394, 397, 192 N.W.2d 192, 195 (1971) (stating that “theory underlying [the physician-patient] privilege is that a patient’s fear of an unwarranted, embarrassing, and detrimental disclosure in court of information given to his doctor would deter the patient from freely disclosing his symptoms to the detriment of his health” (quotation omitted)). The privilege is “solely for the protection of the patient and is designed to promote health and not truth.” Snyker v. Snyker, 245 Minn. 405, 407, 72 N.W.2d 357, 359 (1955). Because the privilege belongs to the patient, no person other than the patient has standing to invoke the privilege. See State v. Rice, 411 N.Wüd 260, 262 (Minn.App.1987) (holding that, because privilege against self-incrimination is personal to witness, defendant lacked standing to contest grant of immunity to witness who testified against him).

Reasoning that the physician-patient privilege belongs to the patient, courts in other jurisdictions-have held that a criminal' defendant lacks standing to assert the victim’s physician-patient privilege as a shield against prosecution. See, e.g., People v. Palomo, 31 P.3d 879, 885 (Colo.2001) (stating that defendant may not assert privilege “to raise issues concerning the medical records in [the victim’s] file”); State v. Evans, 802 S.W.2d 507, 511 (Mo. 1991) (holding that defendant convicted of raping his girlfriend lacked standing to object to introduction of her medical records on basis of physician-patient privilege); In re Grand Jury Proceedings, 56 N.Y.2d 348, 452 N.Y.S.2d 361, 437 N.E.2d 1118, 1120 (1982) (stating that criminal defendant “should not be permitted to assert the victim’s physician-patient privilege as a bar to production of relevant medical records or testimony”); State v. Boehme, 71 Wash.2d 621, 430 P.2d 527, 536-37 (1967) (stating that physician-patient privilege is designed to protect patient and “should not, by unrealistic or impractical application, become a means whereby criminal activities of third persons may be shielded from detection, prosecution; and punishment," however magnanimous, coin-passionate or conciliatory the victim might otherwise wish to be”).

We, too, conclude that the physician-patient privilege is personal and may not be invoked by a criminal defendant to shield himself from prosecution. Allowing a criminal defendant to exclude relevant medical evidence by asserting the privilege of a victim who has' not expressed any concerns about confidentiality would convert the privilege into a tool for shielding criminal áetivity from prosecution and would result in á miscarriage of justice. By contrast, the purpose underlying the physician-patient privilege would be minimally frustrated, if at all,., by not allowing a defendant to invoke the victim’s privilege.

Even if Gillespie had standing to invoke the victim’s privilege, the privilege was unavailable because the victim waived it by allowing her sister to be present, during the examination and by voluntarily disclosing to a deputy sheriff the information she gave the physician in the course of treatment. The presence of a third party during consultation or treatment renders statements a patient makes to a physician nonprivileged if the third party is not a necessary and customary participant in the consultation or treatment. State v. Kunz, 457 N.W.2d 265, 267 (Minn.App.1990) (holding that privilege did not apply to observations acquired by physician during medical examination because police officer was in room with patient’s acquiescence during examination), review denied (Minn. Aug. 23, 1990); see also State v. Andring, 342 N.W.2d 128, 133 (Minn.1984) (holding that statements made in group-psychotherapy sessions were privileged). The victim’s sister was not a necessary and customary participant in the consultation, and she was present during the consultation with the victim’s consent. Her presence during the consultation, therefore, rendered the victim’s statements to the physician nonprivileged. Additionally, the statements lost their privileged character after, the victim disclosed them to a deputy sheriff, and they became the basis of the criminal complaint against Gillespie. See State v. Clark, 296 N.W.2d 372, 376 (Minn.1980) (stating that information, once made public, loses its privileged character). The filing of the complaint rendered the information public and removed the protection that the physician-patjent privilege might otherwise have afforded.

■ Gillespie argues that the state’s motion in limine lacked “factual or evidentiary support” because it was unaccompanied by affidavits, testimony, or medical records. But Gillespie has cited no authority for the proposition that a motion must be supported by anything other than persuasive legal arguments and authority. The state offered persuasive arguments and legal authority for each of its requests. Nothing more was required.

V

Last, Gillespie argues that the district court erred by not advising him that he had a right to stipulate to prior convictions, which the state used to prove motive and intent.

Pro se litigants are generally held to the same standard as attorneys. State v. Seifert, 423 N.W.2d 368, 372 (Minn.1988), superseded by rule on other grounds, Minn. R.Crim. P. 28.02, subd. 5, as recognized in Black v. State, 560 N.W.2d 83, 86 (Minn.1997). Just as the court is not required to advise attorneys about trial strategy, the court is not required to advise pro se defendants about trial strategy. Furthermore, in light of the state’s position that the convictions were admissible on the issue of motive and intent, any tactical suggestion from the court would have drawn the court into the trial itself and compromised its judicial function.

DECISION

The district court did not plainly err by proceeding to voir dire with seventeen veniremembers, by failing to ask follow-up questions of prospective jurors who indicated that they had previously served on criminal juries, by not sua sponte dismissing prospective jurors who initially indicated partiality, or by failing to advise Gillespie that he had a right to stipulate to his prior convictions. Nor did the district court err by admitting into evidence the victim’s medical records and her physician’s testimony.

Affirmed.