State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0391

State of Minnesota,
Respondent,

vs.

C. L. S.,
Appellant.

Filed December 19, 2022
Reversed and remanded
Bryan, Judge

Wabasha County District Court
File No. 79-CR-16-880

Keith Ellison, Attorney General, Benjamin C. Johnson, Assistant Attorney General, St.
Paul, Minnesota (for respondent s Minnesota Department of Human Services and
Minnesota Department of Health)

Karrie Kelly, Wabasha County Attorney, Jacob J. Barnes, Sr. Assistant County Attorney,
Wabasha, Minnesota (for respondent county)

Thomas R. Braun, Restovich Braun & Associates, R ochester, Minnesota (for appellant)

Considered and decided by Bryan, Presiding Judge; Bjorkman, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from an order denying appellant’s petition for statutory expungement
of a criminal record, appellant makes the following two arguments: (1) the district court
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erred by requiring appellant to bear the burden of proof; and (2) the district court erred in
its analysis of whether the public’s interest in keeping the criminal record unsealed
outweighed the disadvantages to appellant. We conclude that the district court erred in its
application of the law, and we reverse and remand for consideration of appellant’s petition
under the proper burden of proof and based on the applicable statutory factors .
FACTS
On September 30, 2016, respondent State of Minnesota charged appellant C.L.S.
with disseminating child pornography. In 2017, C .L.S. pleaded guilty to the charge. The
district court stayed adjudication and placed C.L.S. on probation for seven years. In August
2020, the district court discharged C.L.S. from probation following a recommendation
from the Minnesota Department of Cor rections. A few months later, C.L.S. submitted his
first petition for expungement of his criminal record, seeking to regain employment as a
physician assistant among other reasons. Although he remained licensed as a physician
assistant in the State of Mi nnesota, C.L.S . could not find employment in this field as a
result of his criminal record . The district court denied C.L.S.’s initial expungement
petition, concluding that C.L.S. was not yet eligible for expungement because one year had
not passed since the district court discharged C.L.S. from probation.
In October 2021, C.L.S. submitted a second petition for expungement. C.L.S. stated
that he was seeking an expungement of his record “for several reasons, which include
employment, medical licensure, and volunteer opportunities.” C.L.S. again noted that
although he was employed as an electrician, he wished to regain employment as a physician
assistant but could not do so because of his record. The Minnesota Bureau of Criminal
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Apprehension (BCA) submitted a letter to the district court noting that it would not oppose
C.L.S.’s petition. However, the state opposed the petition, stating that its position “remains
the same” as articulated in response to the first expungement petition.
On January 21, 2022, the district court denied the second petition, concluding that
C.L.S. failed to show that the statutory factors favored expungement.1 The district court
determined that the following six factors favored denying the petition: the nature of the
underlying offense; the risk posed to society; the length of time since the underlying
offense occurred; the stated reasons supporting the petition; the preference of the victim of
the underlying offense; and the final, catch -all factor listed in the statute. In considering
the nature of the offense, the district court emphasized the age of the victim in this case,
the harm experienced by the victim, and the public policy favoring registration of sex
offenders:
The Court views this as a serious criminal offense. The
maximum sentence for dissemination of pornographic work
involving minors is seven years and/or a $10,000.00 fi ne. It is
also not a victimless crime. The child victim in this case was
just 9-12 years old. The Minnesota Legislature has taken steps,
such as the creation of the Minnesota Predatory Offender
Registration, to ensure that child predators cannot veil

1 The expungement statute enumerates eleven specific factors and one general , “catch-all”
factor for district courts to consider when balancing the interests of the public against the
interests of the petitioner : (1) “the nature and severity of the underlying crime ”; (2) any
risk to society; (3) “the length of time since the crime occurred ”; (4) “steps taken by the
petitioner toward rehabilitation following the crime ”; (5) aggravating or mitigating factors
relating to the crime; (6) the “reasons for the expungement , including the petitioner’s
attempts to obtain employment”; (7) “the petitioner’s criminal record”; (8) “the petitioner’s
record of employment and community involvement” ; (9) law enforcement, prosecutorial,
and corrections recommendations; (10) the victim’s recommendations; (11) the petitioner’s
efforts to pay, if any, restitution; and (12) “other factors deemed relevant by the court.”
Minn. Stat. § 609A.03, subd. 5(c) (2020).
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themselves from the public eye. If the Court were to allow
[C.L.S.’s] records to be sealed, he could finish his proba tion
and be absolved of having ever committed this crime. The
damage to the Victim, however, can never be undone. This
factor weighs against [C.L.S.].

In analyzing the risk to society, the district court considered the harm that a new,
similar offense would cause, despite a “very low risk” of this occurring:
Even a very low risk, however, could carry serious
consequences in a case involving minors. This is because the
gravity of the harm that would be inflicted on another child
victim, if [C.L.S.] were to re -offend, is very high. For this
reason, the Court views this factor as weighing against
[C.L.S.].

In evaluating the length of time that has passed from the underlying offense until
the filing of the expungement petition, the district court focused on the date that C.L.S. was
discharged from probation:
The crime occurred on July 4, 2016. [C.L.S.] was
discharged fro m probation on August 20, 2020. He promptly
filed a petition for expungement. [C.L.S.] has been law
abiding since the date of his s entencing. [C.L.S.], however,
has only been discharged from probation for about a year -and-
a-half. This is a fairly insub stantial amount of time, and
indeed, it is just past the statutory one -year requirement to
apply for expungement under Minn. Stat . 609A. This factor
weighs against [C.L.S.].

The district court also determined that C.L.S.’s stated reason for filing the pe tition
weighed in favor of denying the petition because he has obtained employment as an
electrician, even if his criminal record prevents him from returning to work as a physician
assistant:
[C.L.S.] relies heavily on this factor in arguing that his
expungement should be granted. [C.L.S.], however, has
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successfully completed electrician school and has worked as
an electrician for the past two years. There is no indication that
[C.L.S.] is unable to provide for his family’s basic needs in his
new profession. This factor weighs against [C.L.S.].

In analyzing the final factor, the district court expressed concern that as a physician
assistant, C.L.S. could pose a risk of harm to minor patients:
The Petition suggests that if the expungement were granted,
[C.L.S.] may be able to practice as a physician [] assistant.
[C.L.S.’s] former court -ordered therapist, Dr. James Alsdurf,
indicated that Defendant may be able to work in a supervised
setting. He did not, however, say that Defendant could work
in a fully u nsupervised role as a physician[] assistant. The
Court is concerned that [C.L.S.] may be unsupervised if he
were to practice, and is concerned about possible interaction
with minor patients. This factor weighs against [C.L.S.].

The district court determined that the following four factors were neutral : the steps
C.L.S. took toward rehabilitation; aggravating and mitigating factors relating to the
underlying offense; the recommendations of law enforcement agencies, prosecutors, an d
corrections officers; and C.L.S.’s efforts to pay restitution. More specifically, in its
reasoning concerning rehabilitative steps, the district court acknowledged that C.L.S.
completed court-ordered therapy, but the district court determined that C.L.S . presented no
additional evidence of any rehabilitative action.
Finally, the district court determined that two factors favored granting the petition:
the absence of a lengthy criminal record and C.L.S.’s history of employment and
community involvement. C.L.S. appeals.
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DECISION
C.L.S. argues that the district erred as a matter of law when it misapplied the
statutory burden of proof and when it analyzed the first three of the statutory expungement
factors. We reverse and remand because it is unclear w hether the district court req uired
the state to bear the burden of proof and because the district court misstated two of the
applicable statutory factors.
I. Burden of Proof
The applicable burden of proof depends on which of two statutory provisions apply.
When a petitioner has succe ssfully completed a stay of adjudication and “has not been
charged with a new crime for at least one year since completion of the . . . stay of
adjudication,” Minn. Stat. § 609A.02, subd. 3(a)(2) (2020), the petitioner is presumptively
entitled to expungement and the burden of proof to rebut this presumption rests with the
state. The district court “shall grant the petition to seal the record unless the agency . . .
establishes by clear and convincing evi dence that the interests of the public and public
safety outweigh the disadvantages to the petitioner of not sealing the record.” Minn. Stat.
§ 609A.03, subd. 5(b) (2020); see also State v. Ambaye, 616 N.W.2d 256, 257 (Minn. 2000)
(concluding that under s ubdivision 5(b), a petitioner “is presumptively entitled to
expungement”). An individual who cannot satisfy the requirements of subdivision 3,
however, may still petition for expungement, but no presumption in favor of the petition
applies, and the burden of proof rests with the petitioner. Minn. Stat. § 609A.03, subd. 5(a)
(2020); see also State v. R.H.B., 821 N.W.2d 817, 821 at n.2 (Minn. 2012) (observing that
7
the petitioner bears the burden of proof under subdivision 5(a)). 2 Although we generally
review expungement decisions for an abuse of discretion, see id. at 822 (concluding that
the district court exercises its discretion when it weighs the competing interests set forth in
the expungement statute) , we review issues of law de novo, State v. C.W.N., 906 N.W.2d
549, 552 (Minn. App. 2018) . The question of who bears the burden of proof is a question
of law that we review de novo. E.g., C.O. v. Doe , 757 N.W.2d 343, 352 (Minn. 2008).
In this case, it is not entirely clear whether the district court applied the burden of
proof in subdivision 5(a) or the burden of proof in subdivision 5(b). On the one hand,
before analyzing the statutory factors for expungement in this case, the distric t court cited
subdivision 5(a), and portions of the district court ’s reasoning required C.L.S. to prove
facts relevant to the expungement factors. At the conclusion of its analysis, however, the
district court also cited subdivision 5(b). Given these inc onsistent statements, we are
unable to determine which burden of proof provision the district court ultimately applied.
We reverse and remand for the district court to analyze the expungement factors under the
burden of proof set forth in subdivision 5(b) .
II. Statutory Factors for Expungement
As noted above, the expungement statute requires the district court to balance public
safety and the interests of the public against the interests of the petitioner, while considering
twelve factors. Minn. Stat. § 609A.03, subd. 5(b)-(c). C.L.S. argues that the district court

2 The standard of proof remains the same: clear and convincing evidence. Compare Minn.
Stat. § 609A.03, subd. 5(a), with subd. 5(b). Clear and convincing evidence is shown when
“the truth of the facts asserted is highly probable.” Weber v. Anderson, 269 N.W.2d 892,
895 (Minn. 1978) (quotation omitted).
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erred as a legal matter in the following three ways: (1) the district court effectively
converted the first factor into a per se rule, mandating automatic denial of petitions for
expungement of offenses involving dissemination of child pornography;
(2) the district court misstated the second factor by considering the harm that would result
from a new, similar offense; and (3) the district court misstated the third factor by
considering the time that elapsed from the date C.L.S. was discharged from probation until
the filing of the second petition. We review these legal challenges de novo. C.W.N., 906
N.W.2d at 552.3
We are not convinced that the district erred as a matter of law in its consideration of
the first factor for three reasons. First, th e district court made particularized findings,
specific to the facts of the underlying offense . Second, contrary to C.L.S.’s
characterization, the district court did not go so far as to conclude that this factor
categorically favors denial of all similar expungement petitions. Third, we agree with the
district court that the available consequences after conviction for an offense can be an
indication of the seriousness of that offense. The district court referred to the legislature’s
decision to require predatory offender registration for persons convicted of possessing child
pornography “to ensure that child predators cannot veil themselves from the public eye.”

3 C.L.S. also expresses disagreement with the weight that the district court gave to certain
evidence, such as the evidence that C.L.S. took steps toward rehabilitation by completing
his court -ordered therapy and evidence that C.L.S. desired to participate in recreational
activities with his family, including organized athletics. Given our decision to remand for
findings consistent with the applicable burden of proof, however, we need not determine
whether the district court acted against logic or otherwise abused its discretion in weighing
this evidence or in weighing any of the other contested expungement factors .
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Had the district court decided not to impose the stay of adjudication, C.L.S. could have
been required to register as a sex offender and would not be eligible to petition for
expungement. See Minn. Stat. § 609A.02, subd. 4 (2020) (prohibiting expungement of
offenses for which registration is required). 4 In staying adjudication, the district court
necessarily determined that registration was not required as a consequence of the offense
in this case. However, the registration requirement that could have applied makes this
offense more serious than other offenses that do not involve the predatory offender registry.
Turning our attention to the second factor, we conclude that the district court erred
as a matter of law for two reasons. First, the second factor requires district courts to
consider whether the act of granting expungement and sealing the criminal record would
harm the public. R.H.B., 821 N.W.2d at 823 (analyzing the second factor and affirming
the district court’s decision to grant an expungement petition because “the state presented
no evidence that sealing R.H.B.’s criminal record would present a unique or particularized
harm to the public”). The district court in this case, however, considered the consequences

4 Although we are not aware of precedential decisions squarely addressing this issue, two
nonprecedential decisions suggest that t he registration requirement appl ies to convictions
for dissemination of child pornography, at lea st in some circumstances. See In re Welfare
of J.C.L., No. A21-1018, 2022 WL 1210405, at *5 (Minn. App. Apr. 25, 2022), rev. denied
(Minn. July 19, 2022) (stating tha t dissemination of child pornography “is an offense
enumerated for predatory registration” in Minnesota Statutes section 243.166, subdivision
1b(a)(2)(vii)); see also Rye v. State, No. A21-1731, 2022 WL 3581566, at *2 (Minn. App.
Aug. 22, 2022) ( discussing J.C.L. and remanding to the district court with instructions to
remove the registration requirement imposed at sentencing because the possession charges
that were dismissed did not arise out of the same set of circumstances as the dissemination
charges to which appellant pleaded guilty) .
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of a subsequent offense, weighing “the gravity of the harm that would be inflict ed on
another child victim.” It did not analyze the impact of sealing the criminal record.
Second, this factor requires analysis of actual, not speculative , harm tied to the
particular criminal record at issue. See State v. D.R.F., 878 N.W.2d 33, 36 (Minn. App.
2016) (reversing denial of expungement petition where the state’s identified harm to the
public was speculative rather than actual); R.H.B., 821 N.W.2d at 823 (concluding that the
second expungement factor requires consideration of “ a unique or particularized harm to
the public”). The district court, however, considered generalized harm; it did not consider
actual harm tied the criminal record at issue in this case.
Finally, we also conclude that the district court erred as a matter of law regarding
the third factor. The statute specifically requires consideration of “the length of time since
the crime occurred. ” Minn. Stat. § 609A.03, subd. 5(c)(3). The dis trict court however
considered the length of time that had elapsed since the date that C.L.S. was discharged
from probation: “ [C.L.S.], however, has only been discharged from probation for about a
year-and-a-half. This is a fairly insubstantial amount of time .” The offense here occurred
in July 2016, but C.L.S. was discharged more than four years later in August 2020, and
C.L.S. filed the instant petition in October 2021. The statute requires consideration of the
entire period of time from July 2016 through October 2021, not only consideration of the
“a year-and-a-half” that elapsed between being discharged from probation and filing the
instant petition. For these reasons, we remand for consideration of the petition under the
proper burden of proof and based on the applicable statutory factors.
Reversed and remanded.