This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,




Filed ­­­November 7, 2006


Harten, Judge*


Dakota County District Court

File No. K2-01-2646


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


James C. Backstrom, Dakota County Attorney, Scott Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)


Jeffrey C. Dean, Dean Law Office, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant argues that the district court erred in refusing to expunge the records of appellant’s prosecution for possession of pictorial representations of minors after this court reversed appellant’s conviction on that charge for insufficient evidence.  Because we see no error in the district court’s application of the statutes and no abuse of discretion in the decision not to expunge under the its inherent authority, we affirm.


During the 2000-2001 school year, appellant B.V.M., a fifth-grade teacher, admitted that he viewed adult pornography on school computers.  Child pornography was later found on school computers, and appellant was charged with possession of pictorial representations of minors.  A jury convicted appellant of that charge.  He challenged the conviction, and this court reversed it on the basis of insufficient evidence.  State v. Myrland, 681 N.W.2d 415 (Minn. App. 2004), review denied (Minn. 25 Aug. 2004).

In August 2005, appellant filed a petition for expungement in the district court. The district court denied appellant’s petition, and he challenges that denial.

D E C I S I O N[1]

1.         Minn. Stat. §§ 299C.11(b) (2004), 609A.02 (2004).

Two Minnesota statutes are relevant to expungement.  The district court’s application of statutory criteria to facts as found is a question of law subject to de novo review.  State v. Bunde, 556 N.W.2d 917, 918 (Minn. App. 1996).  

Minn. Stat. § 299C.11(b) provides:

No petition [for expungement] under chapter 609A is required if the person has not been convicted of any felony or gross misdemeanor, either within or without the state, within the period of ten years immediately preceding the determination of all pending criminal actions or proceedings in favor of the arrested person, and either of the following occurred:

            (1) all charges were dismissed prior to a determination of probable cause, or

            (2) the prosecuting authority declined to file any charges and a grand jury did not return an indictment.[2]


The charges against appellant were not dismissed; probable cause was determined; the prosecuting authority did file charges; and a district court jury of twelve found appellant guilty of possession of pictorial representations of minors.  Therefore, neither statutory subpart (1) nor (2) occurred, and appellant is not entitled to expungement under Minn. Stat. § 299C.11(b).  

Minn. Stat. § 609A.02, subd. 3, provides that a petition to seal all records may be filed “if the records are not subject to section 299C.11, paragraph (b), and if all pending actions or proceedings were resolved in favor of the petitioner.”  The district court shall grant the petition “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).

Here, the district court found that appellant admitted to using school computers to view pornography.   

He acknowledged that he betrayed the trust of his boss and fellow teachers by doing this, and that it was extremely reckless and irresponsible to potentially expose students to the pornographic material he was viewing.  The public and potential employers have a strong interest in this important information.  Given the information provided by [appellant] in this matter, the disadvantages to the public clearly outweigh any benefit to [him].


Appellant does not challenge these findings concerning his admissions. He argues, however, that his benefit from having the records expunged outweighs any disadvantage to the public from not expunging them.

As a practical matter, appellant’s effort to keep knowledge of his child pornography charge from the public by expunging the court’s records appears to be futile; detailed information on his criminal case from newspaper articles is indexed and easily available from sources in the public domain.  Moreover, the benefit of expungement to appellant is further mitigated by the public availability of this court’s decision concluding that the evidence was insufficient to convict him of that charge.  See State v. Myrland, 681 N.W.2d 415, 420-21 (Minn. App. 2004), review denied (Minn. Aug. 25, 2004).  Appellant has not shown that the benefit of expungement to himself outweighs the disadvantage to the public from not expunging. 

2.         Inherent Judicial Expungement.

             “The exercise of a court’s inherent power to expunge is a matter of equity, and we therefore review the district court’s conclusion under an abuse of discretion standard.”  State v. Ambaye, 616 N.W.2d 256, 261 (Minn. 2000).  Courts may use their inherent power to expunge in two situations: when the petitioner’s constitutional rights will be infringed by not expunging his record and when “expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing, and monitoring an expungement order.”  Id. at 258 (quotation omitted). 

In his brief, appellant alleges that the denial of his petition was “a violation of his federal and state due process rights” but he provides no explanation or argument for this allegation.  We decline to address allegations unsupported by legal analysis or citation.  Ganguli v. University of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).  So the question becomes whether the benefit expungement would yield to appellant is commensurate with the disadvantage it would cause to the public and the burden it would impose on the court. 

Appellant argues that the benefit to him would be prospective employers’ inability to discover that he was charged with possession of pictorial representation of minors.  The petitioner in Ambaye also sought expungement for “greater ease in obtaining employment.”  Ambaye, 616 N.W.2d at 261.  There, the supreme court found no abuse of discretion in the district court’s decision to deny expungement and relied in part on its statement that “the benefit [the petitioner] stood to gain from expungement, if granted, would override the very purpose of the background check.  Employers, sometimes pursuant to law and sometimes voluntarily, have required background checks in order to ‘assess any potential risk involved with hiring certain individuals.’”  Id. It would be a significant disadvantage to the public if a background check conducted on appellant for a teaching job did not reveal that he had been charged with and convicted of possessing pictorial representations of minors, even though that conviction was reversed.  As indicated, the benefit of expungement to appellant is limited by the availability within the public domain of both this court’s opinion reversing his conviction and newspaper accounts of the child pornography charge.  Thus, the benefit to appellant is not commensurate with the disadvantage to the public.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Although appellant claims in his reply brief that he seeks relief only under Minn. Stat. § 609A.02 (2004), in the interests of completeness this opinion will address the two statutes relevant to expungement and the judicial authority to expunge.

[2] This statute has since been amended (Minn. Stat. § 299C.11, subd. 1(b) (Supp. 2005)), but the amendments are immaterial to this appeal.