Simpson v. Mo. State Highway Patrol Criminal Records Repository, No. SD 34639

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: DON E. BURRELL, J.
• Citation: 522 S.W.3d 369
• Parties: Dominique Roshaud SIMPSON, Plaintiff-Respondent, v. Missouri STATE HIGHWAY PATROL CRIMINAL RECORDS REPOSITORY, Defendant-Appellant.
• Decision Date: 21 June 2017
• Docket Number: No. SD 34639

522 S.W.3d 369

Dominique Roshaud SIMPSON, Plaintiff-Respondent,
v.
Missouri STATE HIGHWAY PATROL CRIMINAL RECORDS REPOSITORY, Defendant-Appellant.

No. SD 34639

Missouri Court of Appeals, Southern District, Division One.

Filed: June 21, 2017

ROSS D. KEELING, Jefferson City, for Appellant.

DON E. BURRELL, J.

The Missouri State Highway Patrol ("MSHP") appeals the trial court's judgment expunging Dominique Roshaud Simpson's ("Petitioner") arrest records relating to an alleged ordinance violation.¹ See section 610.122. In two interrelated points, MSHP challenges the trial court's findings that (1) "[t]he arrest was based on false information" and (2) "[t]here is no probable cause, at the time of the action to expunge, to believe the individual committed the offense." Finding merit in MSHP's points, we reverse the judgment of the trial court.²

Applicable Principles of Review and Governing Law

We will affirm a judgment resulting from a bench trial unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We leave all credibility determinations to the trial court, which is free to believe none, part, or all of the testimony of any witness. Maserang v. Crawford Cty. Sheriff's Dep't, 211 S.W.3d 118, 121 (Mo. App. S.D. 2006).

522 S.W.3d 371

As relevant here, a trial court may expunge an arrest record

if the court determines that the arrest was based on false information and the following conditions exist:

(1) There is no probable cause, at the time of the action to expunge, to believe the individual committed the offense;

(2) No charges will be pursued as a result of the arrest;

(3) The subject of the arrest has no prior or subsequent misdemeanor or felony convictions;

(4) The subject of the arrest did not receive a suspended imposition of sentence for the offense for which the arrest was made or for any offense related to the arrest; and

(5) No civil action is pending relating to the arrest or the records sought to be expunged.

Section 610.122.

Background

On October 24, 2013, Petitioner filed his "PETITION FOR EXPUNGEMENT " of any records related to his January 7, 2012 arrest for "Possession of marijuana" ("the arrest"). MSHP filed an "ANSWER AND MOTION TO DISMISS " that asserted Petitioner was not entitled to relief. At the bench-trial of the petition, Petitioner testified about the arrest, and the arresting officer's police report was admitted into evidence as "State's Exhibit #1[.]" The uncontested evidence of what occurred during the arrest is as follows.

On January 7, 2012, in Joplin, Rob Green ("Green"),³ an acquaintance of Petitioner, brought marijuana ("the marijuana") into Petitioner's car. Petitioner and Green then smoked the marijuana. Ten-to-fifteen minutes later, an officer of the Joplin Police Department smelled the odor of marijuana, which became stronger as he approached Petitioner's parked car. The officer then discovered and detained Petitioner and Green (who were both sitting inside the car), informed them that he could smell marijuana, and asked where the marijuana was located. Acting on Green's response, the officer discovered and seized a "roach" located in the car's ash tray. Both Petitioner and Green admitted to the officer that they had smoked the marijuana. The officer then placed them under arrest for possession of marijuana.

Green ultimately pleaded guilty to possessing the marijuana. In lieu of the charge of marijuana possession, Petitioner's charge was amended, and he pleaded guilty to disturbing the peace. Petitioner does not have any other misdemeanor or felony convictions.

In its judgment granting the petition for expungement, the trial court made the following factual findings:

States [sic] exhibit #1 states that [Petitioner] smoked the marijuana. [Petitioner] never admitted in the arrest report that it was his marijuana. Testimony at trial was that Green pled guilty to the possession of marijuana charge. [Petitioner] testified at trial it was Green's marijuana, not his.

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