State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1840

State of Minnesota,
Respondent,

vs.

W. G. M.,
Appellant.

Filed August 19, 2019
Reversed and remanded
Cochran, Judge

Hennepin County District Court
File No. 27-CR-18-4962

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, David Bernstein, Ass istant City Attorney,
Minneapolis, Minnesota (for respondent)

Mary Moriarty, Fourth District P ublic Defender, Peter W. Gorman , Assistant Public
Defender, Minneapolis, Minnesota (for appellant)

Considered and decided by Coch ran, Presiding Judge; Worke, Jud ge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this expungement appeal, appellant challenges the district c ourt’s partial denial
of his petition for statutory expungement of records related to a charge that was dismissed

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a few months earlier. Appellant argues that the district court abused its discretion by
concluding that the City of Minn eapolis met its burden under Mi nn. Stat. § 609A.03,
subd. 5(b) (2018) to establish by clear and convincing evidence that grounds existed to
deny expungement of records of the Minneapolis City Attorney’s Office and the
Minneapolis Police Department rel ating to the dismissed charge. Because there is
insufficient evidence to support the district court’s decision that the city met its burden, we
reverse and remand.
FACTS
On February 23, 2018, respondent State of Minnesota charged app ellant W.G.M.
with domestic assault. Approxima tely three months later, the s tate dismissed the case.
Shortly thereafter, W.G.M. sought expungement of judicial and executive records pursuant
to Minn. Stat. § 609A.02 (2018). The city opposed W.G.M.’s petition for expungement in
a letter brief submitted to the district court on August 8, 201 9. The city specifically
opposed the expungement of executive branch records. The city did not attach any
affidavits or other evidence to its letter.
At the expungement hearing, counsel reiterated their positions . Neither party called
any witnesses or offered any evidence into the record. The cou rt gave W.G.M. an
opportunity to briefly discuss the events leading up to the alleged offense, but W.G.M. did
not provide sworn testimony. At the end of the hearing, the di strict court characterized
W.G.M.’s statements as “arguments” to the court.
Following the hearing, the district court granted in part and denied in part W.G.M.’s
petition, ordering expungement of judicial records but not expu ngement of executive

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records. The district court found that the city had met its burden “because of the recentness
and seriousness of the crime, and the possibility that the matt er could be re-charged.”
W.G.M. filed a motion for reconsideration and the district cour t issued an amended order
clarifying that the denial of W.G.M.’s petition to expunge executive records extended only
to the Minneapolis City Attorney ’s Office and the Minneapolis P olice Department. The
district court ruled that all other records must be sealed.
W.G.M. appeals.
D E C I S I O N
This court reviews a district court’s denial of an expungement petition for an abuse
of discretion. State v. R.H.B., 821 N.W.2d 817, 822 (Minn. 2012). We will only reverse
the district court’s decision if it is based on an erroneous in terpretation of the law, is
arbitrary or capricious, or is against the facts in the record. Id. A district court’s findings
of fact will not be set aside unless they are clearly erroneous . State v. H.A., 716 N.W.2d
360, 363 (Minn. App. 2006). A factual finding is clearly erron eous if it is “manifestly
contrary to the weight of the evidence or not supported by the evidence as a whole.” Id.
(quotation omitted).
W.G.M. argues that the district court abused its discretion by denying expungement
of the records of the city attorney’s office and the police dep artment. Because there is
insufficient evidence to support the district court’s decision, we agree.
The legislature has identified specific circumstances in which an individual may
petition to expunge a criminal record. Minn. Stat. § 609A.02. When a case is resolved in
the petitioner’s favor, the pe titioner is presumptively entitled to expungement of the case

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record. Minn. Stat. § 609A.03, subd. 5(b); see also R.H.B., 821 N.W.2d at 821 (describing
expungement after a case is resolved in petitioner’s favor as a presumption). There is no
dispute that W.G.M.’s case was resolved in his favor because it was dismissed. Under
Minn. Stat. § 609A.03, subd. 5(b), the district court “shall grant” W.G.M.’s petition to seal
the record unless the agency or jurisdiction whose records woul d be affected rebuts the
presumption. To rebut the statutory presumption, the agency opposing expungement must
establish by “clear and convincing evidence” that “the interest s of the public and public
safety outweigh the disadvantages to the petitioner of not seal ing the record.” Id. “[T]o
prove a claim by clear and convincing evidence, a party’s evidence should be unequivocal,
intrinsically probable and credible, and free from frailties.” Gassler v. State, 787 N.W.2d
575, 583 (Minn. 2010).
The public safety risk identified to rebut the presumption must b e “ u n i q u e o r
particularized.” See State v. A.S.R., 906 N.W.2d 526, 531 (Minn. App. 2017) (noting that
the agency must present clear and convincing evidence “that sealing the record presents a
unique or particularized public-s afety risk that outweighs the disadvantages to the
petitioner of not sealing the record”). When determining if the agency has met its burden,
the district court considers 12 factors:
(1) the nature and severity of the underlying crime,
the record of which would be sealed;
(2) the risk, if any, the pe titioner poses to individuals
or society;
(3) the length of time si nce the crime occurred;
(4) the steps taken by the petitioner toward
rehabilitation following the crime;
(5) aggravating or mitigating factors relating to the
underlying crime, includin g the petitioner’s level of

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participation and context and circumstances of the underlying
crime;
(6) the reasons for the expungement, including the
petitioner’s attempts to obtain em ployment, housing, or other
necessities;
(7) the petitioner’s criminal record;
(8) the petitioner’s record of employment and
community involvement;
(9) the recommendations of interested 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,
past efforts made by the petitioner towards payment, and the
measures in place to help en sure completion of restitution
payment after expungement of the record if granted; and
(12) other factors deemed relevant by the court.

Minn. Stat. § 609A.03, subd. 5(c)(1)-(12) (2018).
To rebut the presumption, the c ity submitted only its letter b rief objecting to
expungement. The city did not offer any evidence at the expung ement hearing regarding
the twelve factors, such as police reports or affidavits, or call any witnesses to testify about
the alleged underlying offense. Instead, the city relied on th e legal arguments in its letter
brief to the court.
In its order, the district court denied expungement of the city’s records “because of
the recentness and seriousness of the crime, and the possibilit y that the matter could be
re-charged.” There is no evidence in the record to support the reasons identified by the
district court. There is no evidence to demonstrate that a crime in fact occurred or that the
alleged crime was serious. Nor is there any evidence to demonstrate that the matter could
not be re-charged at a later date if the city’s records relatin g to the dismissed charge were
expunged. See Minn. Stat. § 609A.03, subd. 7(b)(1) (2018) (providing “[n]otwithstanding

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the issuance of an expungement order[,] . . . an expunged recor d may be opened for
purposes of . . . prosecution . . . upon an ex parte court order”).
On appeal, the city points to W .G.M.’s petition for expungement to argue that its
position is supported by information in the record. But the petition was not introduced as
evidence by either party during the hearing.1
Because the city failed to present any evidence in support of its position, the district
court abused its discretion when it found that the city met its burden to demonstrate by
“clear and convincing evidence” that the interests of the public and public safety outweigh
the disadvantages to W.G.M. of not sealing the city’s records r elating to the dismissed
charge. See Minn. Stat. § 609A.03, subd. 5(b); A.S.R., 906 N.W.2d at 531 (stating that the
agency must present clear and co nvincing evidence to rebut the presumption). We
therefore reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.

1 We note that, even if W.G.M.’s petition were considered eviden ce for purposes of the
expungement proceeding, the peti tion filed by W.G.M. fails to p rovide sufficient factual
support for the reasons given by the district court to deny exp ungement of the city’s
records.