This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Corey Ryan Walthers,



Filed August 19, 2003


Gordon W. Shumaker, Judge


Kandiyohi County District Court

File No. K39966




Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Boyd Beccue, Kandiyohi County Attorney, 415 S.W. Sixth Street, Willmar, MN 56201 (for respondent)


Robert Fowler, Kelly & Fawcett, P.A., 2350 US Bancorp Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)



Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N



Appellant Corey Walthers was charged with one count of criminal sexual conduct in the fourth degree and one count of illegally providing alcohol to minors.  After a jury acquitted appellant of the charges, he petitioned the district court to expunge the records of his arrest and criminal charges.  The court denied the petition, and appellant challenges that denial.  We reverse.


          The charges against appellant arise out of events in the summer of 1998.  At that time, appellant was 24 years old and employed as a Renville County deputy sheriff.  One evening, when he was off-duty, appellant went to the home of an 18-year-old acquaintance, M.C.S., at approximately 10:30 p.m. where a handful of minors were drinking alcohol.  Appellant knew most of the individuals and that they were minors.  He arrived at M.C.S.’s home with his own 12-pack of beer and placed it into the refrigerator.  He testified that he was not concerned that the minors would drink his beer because he observed them drinking their own alcohol.  He did not report or otherwise stop the underage drinking, and he continued to drink his own beer throughout the night.

            Appellant played pool in the garage until approximately 2:30 in the morning, at which time he went inside to watch movies, and fell asleep on the couch for a short time.  After he awoke, he and one of the underage individuals, J.N., went outside to appellant’s pickup truck, in which M.C.S. had fallen asleep.  M.C.S. later alleged that appellant had come out to the pickup truck and placed his hand down M.C.S.’s pants a couple times.  But appellant testified at trial that he was out at his pickup truck while J.N. had reached into M.C.S.’s front pants pockets a couple of times looking for cigarettes.

Appellant went back to play pool in the garage, but M.C.S. came into the house shortly thereafter and accused appellant of putting his hands down M.C.S.’s pants.  M.C.S. told appellant to leave his home, then ran upstairs and returned, waving a gun at appellant.  At that point, appellant left the party.  He never reported the underage drinking or threat against him with a firearm. 

A jury acquitted appellant of all the charges.  In addition, appellant has been reinstated to his employment with the sheriff’s department after an arbitrator determined that appellant’s conduct, while constituting conduct unbecoming an officer and violating public trust, was not illegal, and the sheriff’s department failed to show that appellant would not be able to perform his duties.  And the arbitrator noted that appellant has taken positive steps to recover from his alcohol-abuse problem and has completed a rehabilitation program.


            Expungement is an extraordinary form of relief, requiring that all evidence of an event be erased, as if it never occurred.  State v. M.B.M., 518 N.W.2d 880, 882 (Minn. App. 1994).  This court reviews the district court’s decision in expungement cases under an abuse of discretion standard.  Id. at 883.

A petition for expungement of a criminal record may be filed under Minnesota law if a pending action was resolved in favor of the petitioner and the petitioner is not demanding a return of identification data to petitioner.  Minn. Stat. § 609A.02, subd. 3 (2002).  Under the expungement statute, a district court has the authority to seal criminal records.  Minn. Stat. § 609A.03, subd. 5(c) (2002).  The records are not destroyed or returned to the petitioner and may not be opened or disclosed without court order.  Id.  The district court must grant a petition to expunge or seal the record if the criminal action was resolved in the petitioner’s favor,

unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence 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) (2002) (emphasis added).  In light of this statute, the supreme court has established a balancing test under which the challenging agency can overcome the petitioner’s presumption of expungement “only by clear and convincing evidence that the public’s interest in having the criminal records available outweighs the petitioner’s interest in expungement.”  State v. Ambaye, 616 N.W.2d 256, 258 (Minn. 2000).

            Appellant petitioned to expunge the criminal records of charges of fourth-degree criminal sexual conduct and illegally providing alcohol to a minor, but appellant has not sought to have the records returned to him.  It is undisputed that the criminal proceedings were resolved in appellant’s favor because the jury returned a verdict of not guilty on both charges.  Thus, it is presumed that appellant is entitled to an expungement, unless the state can prove by clear and convincing evidence that the public’s interest in having appellant’s court file available outweighs appellant’s interest in having the file expunged.  Minn. Stat. § 609A.03, subd. 5(b) (2002); Ambaye, 616 N.W.2d at 257-58.

            Appellant argues that the district court abused its discretion because the county did not provide clear and convincing evidence that the public’s interest in sealing the record outweighed the disadvantages to him of not sealing the record.  He claims that an arbitrator’s decision in his job-termination proceeding that he should be reinstated to his position as a law-enforcement officer supports his argument that he is not a danger to the public. 

            Appellant also argues that the district court did not address the disadvantage to appellant of keeping open the record of criminal sexual conduct charges, erroneously concluded that future employers had an interest in the open file, failed to consider evidence of appellant’s rehabilitation, and erroneously relied on the fact that appellant is a police officer.

            The district court relied on the state’s submission of a transcript of appellant’s trial testimony as clear and convincing evidence of the public’s interest in keeping the file open.  In his testimony, appellant acknowledged that he was drinking beer while off-duty at a house where underage persons were also drinking alcohol and smoking cigarettes and that he did nothing to stop the underage drinking.  He also acknowledged that he did not report that one of the minors pointed a gun at him, but that he merely left the house at that time.  Appellant did, however, dispute the sexual-conduct incident.  Presented only with this evidence of appellant’s trial testimony, the district court concluded that appellant’s conduct revealed “questionable conduct” and thus the public’s interest, especially the interest of a future law-enforcement employer, outweighed the disadvantages to appellant of keeping the record open. 

But the district court failed to articulate or weigh the disadvantages to appellant of keeping the record open.  Such disadvantages include the stigma of the unproven charges of criminal sexual conduct against appellant.

We agree that appellant exercised questionable judgment.  Society holds police officers to a high standard of conduct.  Thompson v. City of Appleton, 366 N.W.2d 326, 329 (Minn. App. 1985).  And a police officer must present an image of integrity and trust in performing his duties.  City of Minneapolis v. Moe, 450 N.W.2d 367, 370 (Minn. App. 1990).  But, despite the higher societal standard to which police officers are held, we know of no authority that automatically disqualifies a police officer from obtaining an expungement of criminal charges in an appropriate case.  The arbitrator concluded that appellant’s conduct, while unbecoming and violating public trust, was not illegal and that the state did not prove that appellant would be unable to perform his job duties or that the public’s perception of how he would perform his duties was irreparably damaged as a result of the incident.  Appellant has completed an alcohol-abuse treatment program.  And a jury determined that appellant committed no crime and acquitted him of all charges.  Based on the acquittal alone, appellant enjoys the presumption that the expungement must be granted. 

When we apply the statutory balancing test, we conclude that the state has not, by submitting appellant’s trial testimony, provided clear and convincing evidence that the public’s interest or safety outweighs the disadvantages to appellant.  In light of the statutory presumption of expungment, we conclude that, under the circumstances of this case, appellant’s single incident of questionable judgment, when combined with a jury’s not-guilty verdict and an arbitrator’s reinstatement of appellant’s job, is insufficient to support denial of appellant’s motion to expunge his criminal record.