RJZ v. People

• Citation: 104 P.3d 278
• Decision Date: 12 August 2004
• Docket Number: No. 03CA1556.,03CA1556.
• Parties: Upon the Petition of R.J.Z., Petitioner-Appellant, v. The PEOPLE of the State of Colorado, Respondent-Appellee.
• Court: Court of Appeals of Colorado

104 P.3d 278

Upon the Petition of R.J.Z., Petitioner-Appellant, v. The PEOPLE of the State of Colorado, Respondent-Appellee.

No. 03CA1556.

Colorado Court of Appeals, Division IV.

August 12, 2004.

Certiorari Denied December 20, 2004.¹

Newell and Vonachen, Steven R. Newell, Denver, Colorado, for Petitioner-Appellant.

James J. Peters, District Attorney, Paul R. Wolff, Deputy District Attorney, Centennial, Colorado, for Respondent-Appellee.

Opinion by Judge VOGT.

Petitioner, R.J.Z., appeals the trial court's order denying his petition to seal his arrest and criminal records. We reverse and remand with directions.

I.

In June 2001, petitioner was arrested and charged with multiple counts of sexual assault on a child by one in a position of trust and with other related offenses. All the charges arose out of allegations by a young woman that petitioner had had unlawful sexual contact with her several years earlier, when he was the youth pastor at her church. Thirteen of the twenty-five counts were dismissed at the preliminary hearing or at the close of the People's case, and the jury found petitioner not guilty of the remaining charges.

Three months after the trial, petitioner filed a petition pursuant to § 24-72-308, C.R.S.2003, to seal his arrest and criminal records. Notice of the petition was sent to the district attorney, the police and sheriff's departments, and eight other entities or individuals. The district attorney objected, and a hearing was held.

Petitioner was the only witness at the hearing. He testified regarding his employment history as a teacher and school administrator and regarding employment opportunities he had lost as a result of the charges.

After hearing his testimony and the arguments of counsel, the trial court denied the petition. It concluded that the public interest in keeping the records open to the public and to potential employers outweighed any harm to petitioner's privacy interests and any danger of unwarranted adverse consequences to him. In so ruling, the court stated that it had considered all the relevant factors bearing on its decision and had given the most weight to the severity of the charged offenses, the short time that had elapsed since acquittal, the pending "inquiry and possibly investigation" of petitioner by the district attorney's office, and the fact that petitioner was seeking to pursue employment in a field in which he would be supervising, and would be alone with, children and teenagers.

II.

Petitioner contends on appeal that the trial court abused its discretion in denying his petition. We agree. Section 24-72-308(1)(a)(I), C.R.S.2003, provides that a person acquitted of criminal charges may petition the district court for the sealing of all arrest and criminal records except basic identification information. If the court determines that the petition is sufficient on its face, it is to set the matter for hearing. Section 24-72-308(1)(b)(II)(B), C.R.S.2003. Thereafter, "if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records, the court may order such records, except basic identification information, to be sealed." Section 24-72-308(1)(c), C.R.S.2003; see also Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972)

(in case predating statute, supreme court recognized that harm to acquitted person from refusal to expunge arrest records could outweigh public interest in retaining the records).

A person whose records have been sealed cannot be required to disclose any information in the records, and "may state that no such action has ever occurred." Section 24-72-308(1)(f)(I), C.R.S.2003. However, the records are not physically destroyed. Section 24-72-308(1)(g), C.R.S.2003. They may be inspected by the person who is the subject of the records or by the prosecuting attorney upon petition to the court, see § 24-72-308(1)(e), C.R.S.2003, and are available to other criminal justice agencies seeking the information in the records. See § 24-72-308(3)(d), C.R.S.2003 ("This section shall not apply to arrest and criminal justice information or criminal justice records in the possession and custody of a criminal justice agency when inquiry concerning the ... information or ... records is made by another criminal justice agency.").

A trial court applying the statute must balance the competing interests of the individual and the public in determining whether criminal records should be sealed. Its decision may not be overturned on appeal absent an abuse of discretion. In re Petition of T.L.M., 39 P.3d 1239 (Colo.App.2001)(reversing order that partially denied petition to seal and directing trial court to seal social services records regarding dismissed child abuse charges).

In D.W.M. v. District Court, 751 P.2d 74 (Colo.App.1988), which involved a petition under a prior version of the statute that permitted sealing of records even where the petitioner had been convicted, a division of this court enumerated four factors to be considered in balancing the harm to the petitioner against the public interest: (1) the severity of the offense; (2) the time elapsed since the conviction; (3) the subsequent criminal history of the petitioner; and (4) the need for the government agency to retain the records.

In People v. Bushu, 876 P.2d 106 (Colo.App.1994), another division held that the D.W.M. factors remained relevant even though the statute no longer permitted convicted persons to petition for sealing of their records. In addition, courts could consider: (1) the strength of the government's case against the petitioner; (2) the petitioner's age and employment history; and (3) the specific adverse consequences the petitioner might suffer if the records were not sealed. Such factors were "not meant to be all-inclusive," and trial courts were to consider specific factors on a case-by-case basis. Bushu, supra, 876 P.2d at 108.

The trial court in this case cited the factors set forth above in its order. However, we conclude that its determination that these factors warranted denial of the petition reflects a misapplication of certain of the factors and, as to other factors, is manifestly against the weight of evidence in the record. See Hytken v. Wake, 68 P.3d 508, 510 (Colo.App.2002)

(abuse of discretion is found if trial court's findings and conclusions are "so manifestly against the weight of evidence in the record as to compel a contrary result"); Atmel Corp. v. Vitesse Semiconductor Corp., 30 P.3d 789 (Colo.App.2001)(court abuses its discretion when it inappropriately applies a legal standard).

A.

We first consider the extent to which the denial is supported by the first factor cited by the trial court, the severity of the charged offenses. The trial court gave significant weight to this factor in deciding to deny the petition. However, although severity of the offenses was recognized as a relevant factor in D.W.M. and Bushu, and although the felony sex offenses with which petitioner was charged were indeed serious, it does not follow that this factor weighs against sealing the records in the circumstances presented here.

As noted, more than half of the charges against petitioner were dismissed, and the jury acquitted him of the rest after a trial on the merits. Thus, this is not a situation where, for example, a defendant with a history of violence against women escaped conviction because the victim was afraid to testify, see People v. White, 169 Misc.2d 89, 642 N.Y.S.2d 492 (N.Y.Sup.Ct.1996)

(denying motion to seal records where interests of justice required that records remain unsealed), or where a defendant who admitted responsibility for abusing a child was acquitted after his confession was suppressed. See State v. S.R., 63 Ohio St.3d 590, 589 N.E.2d 1319 (1992).

In these circumstances, we conclude that the severity of the charges cannot be viewed as a factor supporting denial of a petition to seal. Indeed, if anything, in an acquittal context, the fact that the charges of which the petitioner was acquitted were serious increases the potential harm to him if the records are not sealed.

B.

Nor does the next factor cited by the court — "the amount of time that has elapsed since the petitioner was acquitted" — support denial of the petition.

In D.W.M., supra, the petitioner had been convicted and had served five months in jail, but had not been arrested in the fifteen years following his conviction. The division found that to be a relevant factor in determining whether to grant the petition. The Bushu division indicated that the "time elapsed" factor remained applicable in situations where an acquitted person sought to seal records. However, it vacated an order denying a petition to seal filed two months after the petitioner was acquitted and did not suggest that the short time weighed against granting the petition.

Here, the petition to seal was filed some three months after trial. The trial court stated it had considered this factor, but did not explain what significance it gave to the relatively short time elapsed. We perceive no reason, and the People suggest none, for attaching any significance to a three-month lapse of time when, as here, sealing of the records is sought following an acquittal.

C.

Although a petitioner's subsequent criminal history and the need for the government to retain the records are additional factors that the trial court is directed to consider, and although the court here noted the "pendency of a district attorney investigation concerning the petitioner," we again perceive no basis for concluding that these factors support denial of the petition to seal in this case.

There was no evidence that petitioner had been arrested or charged with any crimes subsequent to his acquittal on the charges at trial. Except for the district attorney, none of the entities or individuals who received notice of the...