State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0183

State of Minnesota,
Respondent,

vs.

S. M. C.,
Appellant.

Filed December 18, 2017
Affirmed
Reilly, Judge

Nicollet County District Court
File No. 52-CR-06-39

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michelle M. Zehnder Fische r, Nicollet County Attorney , St. Peter, Minnesota (for
respondent)

Craig E. Cascarano, Minneapolis, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge

Appellant S.M.C. challenges the district court’s order denying his petition for
statutory expungement of criminal-sexual-condu ct charges, arguing that the proceedings

2
were resolved in his favor and the state faile d to meet its burden of establishing that the
disadvantages to public safety outweighed the benefits of the expungement. We affirm.
FACTS
In January 2006, the state charged appellant with criminal sexual conduct stemming
from an incident where the victim, C.H., reported that she had been raped by appellant and
by a second individual identified as J.M. In November 2008, J.M. entered a plea of guilty
to criminal sexual conduct a nd admitted to having nonconsen sual sex with C.H. J.M.
testified that he saw appellant touch C.H.’s breast, but he did not know whether the contact
was consensual. A year later, in November 2009, the state dismissed the charges against
appellant without prejudice and the district c ourt issued an order for dismissal without
prejudice under Minnesota Rule of Criminal Procedure 30.01.
In July 2016, appellant filed a petition for statutory expungement under Minnesota
Statutes section 609A.03 (2016), arguing th at he qualified for expungement because the
charges were dismissed by the prosecuting authority. The state opposed the petition,
arguing that appellant failed to include re quired information in his petition—including
records of his seven past criminal charges and convictions—and failed to demonstrate that
he would receive any benefit from the exp ungement. The Minnes ota Department of
Human Services and the Minnesota Department of Health also opposed the petition. C.H.
opposed the petition and appeared at the expungement hearing to provide a statement. The
district court denied the petition. While recognizing that the proceedings were resolved in
appellant’s favor and the state bore the burden of proof, the district court determined that
the statutory expungement factors, considered together, “establish by clear and convincing

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evidence that the public’s interest in keeping the records unsealed outweighs the
disadvantages to [appellant] of not sealing the records.”
This appeal follows.
D E C I S I O N
I. Standard of Review
We review a district court’s denial of an expungement petition for an abuse of
discretion and will only set aside factual findings for clear error. State v. H.A., 716 N.W.2d
360, 363 (Minn. App. 2006). A factual findin g is clearly erroneous if it is “manifestly
contrary to the weight of the evidence or not supported by the evidence as a whole.” Id.
(quotation omitted). We review questions of statutory interpretation de novo. See State v.
S.A.M., 891 N.W.2d 602, 604 (Minn. 2017).
II. Expungement Statute
A district court has both statutory and inhe rent authority to expunge a petitioner’s
criminal records. State v. Ambaye , 616 N.W.2d 256, 257 (Minn. 2000). Statutory
expungement is available only in limited circumstances. See Minn. Stat. § 609A.02 (2016)
(limiting statutory expungement to certain controlled-substance offenses, to crimes
committed by juveniles prosecut ed as adults, and to cert ain enumerated criminal
proceedings). A petitioner qualifies for expungement under section 609A.02, subdivision
3(a)(1), when “all pending actions or proceedings were resolved in favor of the petitioner.”
If a petitioner meets this legal threshold, the di strict court “shall grant the petition to seal
the record unless the agency or jurisdiction whose records wo uld be affected establishes
by clear and convincing evidence that the interests of the public and public safety outweigh

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the disadvantages to the petitioner of not sealing the record.” State v. R.H.B., 821 N.W.2d
817, 821 (Minn. 2012) (describing “two-step procedure for statutory expungement”). The
district court considers
1. the nature and severity of th e underlying crime, the record
of which would be sealed;
2. the risk, if any, the petitione r poses to i ndividuals or
society;
3. the length of time since the crime occurred;
4. the steps taken by the pe titioner toward rehabilitation
following the crime;
5. aggravating or mitigating factors relating to the underlying
crime, including the petitioner’s level of participation and
context and circumstances of the underlying crime;
6. the reasons for the expungement, including the petitioner’s
attempts to obtain employm ent, housing, or other
necessities;
7. the petitioner’s criminal record;
8. the petitioner’s record of employment and community
involvement;
9. the recommendations of inte rested law enforcement,
prosecutorial, and corrections officials;
10. the recommendations of victims or whether victims of the
underlying crime were minors;
11. the amount, if any, of restitution outstanding. . . ; and
12. other factors deemed relevant by the court.
Minn. Stat. § 609A.03, subd. 5(c).
It is undisputed that the criminal charges against appellant were dismissed, and the
proceeding was resolved in his favor. Thus, appellant is “presumptively entitled to

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expungement,” Ambaye, 616 N.W.2d at 257, and the state bears the “burden of persuasion,”
R.H.B., 821 N.W.2d at 821 (citation omitted). The district court analyzed the 12 statutory
expungement factors articulated in section 60 9A.03, subdivision 5(c), and concluded that
clear and convincing evidence weighed against the petition.
III. Analysis
a. Disadvantages to Public and Public Safety
i. Nature and severity of crime, 5( c)(1); Risk to individuals or
society, 5(c)(2); Victim recommendation, 5(c)(10)
The district court determined that the nature and severi ty of the underlying crime,
the risk to society, and the recommendation of the victim weighed against expungement.
Minn. Stat. § 609A.03, subds. 5(c)(1), (2), (10 ). C.H. opposed the petition at the hearing
and stated that appellant “h eld her down” while J.M. sexua lly assaulted her. Minnesota
Statute permits a victim to speak at an expu ngement hearing and directs the district court
that:
A victim of the offense for which expungement is sought has a
right to submit an oral or written statement to the court at the
time of the hearing describing the harm suffered by the victim
as a result of the crime and the victim’s recommendation on
whether expungement should be granted or denied. The judge
shall consider the victim’s statement when making a decision.
Minn. Stat. § 609A.03, subd. 4 (2016).
The district court found C.H.’s testimony “sincere and credible,” and reasoned that
her testimony lent credence to a determination that appellant “pose[d] a risk to society,
especially young females.” It is the district court’s prerogative to weigh the evidence and
make credibility determinations. See State v. Engle, 731 N.W.2d 852, 859-60 (Minn. App.

6
2007) (“Assessing the credibility of witnesses and weighing their testimony are within the
exclusive province of the factfinder.”) (quotation omitted). We do not discern any error in
the district court’s determination that these factors weighed against expunging appellant’s
criminal record.
ii. Aggravating or mitigating factors, 5(c)(5)
The district court found that aggrava ting factors weighed against expungement
because C.H. testified that appellant was an “active participant in the crime” and acted
“callous[ly]” toward her, and J.M. testified at his plea hearing that appellant was “present
in the hotel room and was touching [C.H.] on the breast.” Appellant argues that the district
court mischaracterized J.M.’s testimony and “i nculpat[ed] [a]ppellant for [the charged]
offense.” We disagree. The district court explained that “in finding [C.H.’s] testimony to
be credible, it is not thereby finding Defendan t guilty of the offense. ” The district court
acknowledged that the case was dismissed seve n years ago and that appellant “has never
been convicted of anything in connection with it.” But the district court continued:
The question here is whether to grant the expungement
petition. The testimony of [C.H.] is relevant and properly used
for that purpose. Minn. Stat. § 609A.03, subd. 4 gives [C.H.]
the right to make a statement and directs the Court to consider
it. The opinion of a victim is one of the factors listed in Minn.
Stat. § 609A.03, subd. 5(c). Th e Court used the testimony of
[C.H.] when applying the f actors to determine whether
expungement is appropriate.
The record demonstrates that the district court carefully analyzed this statutory factor as it
relates to appellant’s expungement petition, without suggesting that appellant was guilty
of the underlying offense.

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iii. Steps toward rehabilitation, 5(c)(4); and Petitioner’s criminal
record, 5(c)(7)
Upon review of appellant’s criminal reco rd, the district court determined that
appellant has a “significant record of othe r charges and convictio ns,” including driving
offenses in 1997, 1999, 2006, and 2009, and a domestic assault charge in 2010. The district
court characterized appellant as having “a significant record of trouble with the law,” and
noted that appellant originally failed to include records of these charges and convictions in
his petition for relief. Appellant argues that the 1997 and 1999 driving offenses occurred
before the offense at issue, and that his only criminal conviction was eight years ago. We
are not persuaded by this argumen t. Minnesota law directs the district court to consider
“the petitioner’s criminal record,” Minn. St at. § 609A.03, subd. 5(c)(7), and the plain
language of the statute is not limited to charges and convictions arising after the date of the
underlying crime.
The district court also found that appellant had a history of alcohol-related criminal
offenses but failed to “set forth any steps th at he has taken toward rehabilitation since the
incident.” The district court noted that appellant “present[s] a risk to society, particularly
if he is under the influence of alcohol.” Th e January 2006 complaint states that appellant
and J.M. were drinking alcohol with C.H. before the assau lt occurred. And appellant’s
criminal record includes several impaired-driving offenses. The district court found that,
as of the date of the hearing, there was no evidence “regarding what, if anything, [appellant]
has done with regards to alcohol use.” Becau se the record supports the district court’s
factual findings, the district court’s review of appellant’s criminal record is not erroneous.

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b. Benefits to Petitioner
Appellant did not articulate how the benefits of an expungement outweighed the
disadvantages to the public or to public safe ty. The district court considered the reasons
for expungement and found that appellant “did not state th at he has had any difficulty
obtaining employment, housing or other necessities for living.” See Minn. Stat. § 609A.03,
subd. 5(c)(6) (directing court to consider reasons for expungement “including the
petitioner’s attempts to obtain employment, housing, or other necessities”). Appellant has
not contested this determination on appeal. On balance, the district court found that “[t]he
foregoing factors considered together establish by clear and convinci ng evidence that the
public’s interest in keeping the records unsealed outweighs the disadvantages to [appellant]
of not sealing the record.” We agree. The record demonstrates that the district court
considered each of the statutory factors and concluded that the st ate met its burden of
establishing that clear and convincing evidence weighed in favor of denying the petition.
Appellant argues that the district court’s ruling is contrary to R.H.B., 821 N.W.2d
at 817 and State v. D.R.F., 878 N.W.2d 33 (Minn. App. 2016). We disagree. The petitioner
in R.H.B. sought an expungement under sec tion 609A.03, subdivision 5(b). R.H.B., 821
N.W.2d at 820. The state opposed the petition and presented three affidavits stating that
an expungement threatened public safety. Id. at 822. However, the affidavit statements
were “unremarkable and generalized, and could be submitted in nearly every expungement
case” because they were not unique to the petitioner. Id. The Minnesota Supreme Court
noted that “the State presented almost no evid ence that sealing R.H.B.’s criminal record
would present a unique or particularized harm to the public,” and rein stated the district

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court’s order granting expungement. Id. at 822-23 (“Because the State presented little more
than generalities explaining why it is beneficial for State and county licensing agencies and
police departments to maintain the criminal records of an acquitted defendant, we hold that
the district court did not err when it granted R.H.B.’s petition.”). The petitioner in D.R.F.
also sought statutory expungement under se ction 609A.03, subdivision 5(b), which the
state opposed. D.R.F., 878 N.W.2d at 35. The district court denied the petition and we
reversed on appeal, determining that becaus e there was not a “unique or particularized
harm to the public” presented by the facts of the case, the harm suggested by the state was
“too speculative to constitute clear-and-convincing evidence.” Id. at 36.
R.H.B. and D.R.F. are inapplicable here. The dist rict court had specific evidence
regarding the “unique and particularized harm” to the public of granting the petition. While
appellant disagrees with how the district court weighed the competing interests, the record
reveals that the district court addressed each of the 12 statutory factors and determined that
it was in the public’s interest to deny the expungement petition. A district court’s weighing
of competing interests in an expungement case is a discretionary task, which we review for
abuse of discretion. R.H.B., 821 N.W.2d at 822. The dist rict court did not abuse its
discretion by determining that the state sustained its burden of persuasion in this case.
Affirmed.