In the Missouri Court of Appeals 

Eastern District

DIVISION TWO

JOHN DOE, )

)

Plaintiff/Respondent, ) No. ED102092

)

vs. )

)

MISSOURI STATE HIGHWAY PATROL ) Appeal from the Circuit Court of 

CRIMINAL RECORDS REPOSITORY, ) St. Louis County

)

Appellant, )

)

and ) Honorable Maura B. McShane

)

CITY OF UNIVERSITY CITY, ET AL, )

) Filed: August 18, 2015

Defendants. )

Introduction

The Missouri State Highway Patrol (MSHP) appeals the trial court’s Judgment and Order 

of Expungement of Arrest Records in favor of John Doe. On appeal, MSHP argues that the trial 

court erred in granting Doe’s petition for expungement because Doe did not prove the elements 

entitling him to expungement under the statute and Doe was otherwise barred from seeking 

expungement under the doctrine of issue preclusion. We affirm.
2

Factual Background

In April 2014, Doe filed a petition for expungement of arrest records pursuant to 

§ 610.122.1 Doe’s petition alleged he had been arrested on three counts of third-degree assault. 

MSHP filed its answer and motion to dismiss. MSHP argued that Doe was not eligible to have 

his arrest record expunged. Specifically, MSHP argued that Doe could not prove that the arrest 

was based on false information or that there was no probable cause to believe he committed the 

offense because Doe pleaded guilty to “an offense stemming from the arrest now sought to be 

expunged.” MSHP also contended that Doe could not prove that he was “actually innocent.” 

At the expungement hearing, Doe testified that he and his younger brother were driving 

in University City in 2008. Doe was driving the car, and “before [he] knew what had happened,” 

his younger brother leaned out the window and, using an air gun,2shot a man walking down the 

street. Doe testified that he did not shoot anyone and that, to his knowledge, his younger brother 

gave a statement to the police that he was the one who shot the air gun. Doe indicated he did not 

know that his brother had the air gun until he shot it. Doe testified that he believed the police 

tracked his license plate number to connect him and his brother to the incident. Doe recalled that 

he was arrested for a weapons violation, as well as three counts of assault. One count of assault 

arose from the air gun incident; the two other counts arose from an incident that Doe’s younger 

brother was involved in previously. Doe testified that he was not with his brother at the time of 

the other incident.

The weapons violation was amended to illegal parking on a residential street, to which 

Doe pleaded guilty. The three assault charges were nolle prosequi.

3

 Doe’s trial counsel clarified 

 

1 All statutory references are to RSMo (Supp. 2013) unless otherwise noted.

2 The air gun used in this instance was an airsoft gun, which uses compressed air to shoot plastic projectiles.

3 A charge is nolle prosequi when the prosecution has abandoned the action. BLACK’S LAW DICTIONARY 1070 (7th

ed. 1999).
3

that Doe sought to have the arrest records for the three counts of assault expunged. MSHP did 

not present any evidence at the hearing. The trial court granted Doe’s request to expunge the 

record of his arrests. The court found that the arrests were based on false information and that 

there was no probable cause at the time of the action to expunge that the individual committed 

the offense. This appeal follows.

Standard of Review

In reviewing court-tried cases, we affirm the judgment unless there is no substantial 

evidence to support it, it is against the weight of the evidence, or it erroneously declares or 

applies the law. Adum v. St. Louis Metropolitan Police Dep’t, 423 S.W.3d 327, 328 (Mo. App. 

E.D. 2014). The trial court’s application of statutory requirements is a question of law rather 

than fact; therefore, we review the trial court’s application of statutory requirements de novo. 

Sutton v. Municipal Court Division, Des Peres, No. ED101962, 2015 WL 2393287, at *2 (Mo. 

App. E.D. May 19, 2015). Additionally, the credibility of the witnesses is for the determination 

of the trial court, which is free to believe none, part, or all of the testimony. Maserang v. 

Crawford County Sheriff’s Dep’t, 211 S.W.3d 118, 121 (Mo. App. S.D. 2006). We defer to the 

trial court’s determination of the witnesses’ credibility. Id.

Point I: “Actual Innocence”

In its first point, MSHP argues that the trial court erred in granting Doe’s petition for 

expungement because Doe did not prove, by a preponderance of the evidence, that he was 

actually innocent. Doe counters that he proved that the arrest was based on false information and 

that there was no probable cause at the time of the petition to expunge.

Missouri law enforcement officials are required to submit records of criminal arrests, 

charges, and dispositions to the central repository pursuant to § 43.503. Under § 610.122.1(1), 
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any record of arrest recorded pursuant to § 43.503 may be expunged if the court determines that: 

(1) the arrest was based on false information; (2) there is no probable cause, at the time of the 

action to expunge, to believe the individual committed the offense; (3) no charges will be 

pursued as a result of the arrest; and (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. Additionally, under § 610.122.2, the record of arrest is only eligible for expungement 

if: (1) the subject of the arrest has no prior or subsequent misdemeanor or felony convictions; 

and (2) no civil action is pending relating to the arrest or the records sought to be expunged. 

The party seeking the expungement bears the burden of demonstrating by a 

preponderance of the evidence that he is actually innocent of the offense for which he was 

arrested. Martinez v. State, 24 S.W.3d 10, 20 (Mo. App. E.D. 2000). An individual proves he is 

actually innocent by satisfying the false information and probable cause requirements of 

§ 610.122. Id. 

MSHP contends that the term “actual innocence” in the context of expungement actions 

calls for the same standard as applied in habeas corpus and legal malpractice actions. Habeas 

corpus petitioners must show that a constitutional violation resulted in the conviction of an 

individual who is “actually innocent.” Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000). 

In order for a habeas corpus petitioner to show the requisite probability that he is actually 

innocent, he must show that “no reasonable juror would have convicted him in light of new 

evidence of innocence.” Id. Legal malpractice plaintiffs must “establish that his or her 

attorney’s actions proximately caused damages because in the absence of actual innocence ... a 

plaintiff’s own illegal actions would be the full legal and proximate cause of his damages.” 

Rosenberg v. Shostak, 405 S.W.3d 8, 14 (Mo. App. E.D. 2013). In the legal malpractice context, 
5

actual innocence is “an indispensable element of a malpractice claim against the attorney who 

represented the [criminal] defendant at trial.” Costa v. Allen, 323 S.W.3d 383, 387 (Mo. App. 

W.D. 2010). MSHP reasons that because an expungement action’s probable cause and false 

information requirements together require the petitioner to demonstrate actual innocence, under 

the Clay standard, the petitioner is required to present “new evidence” of innocence for his 

record to be expunged.

We disagree with MSHP’s contention. The standard for expungement is clearly laid out 

in § 610.122, and Missouri courts have previously construed the statute’s false information and 

lack of probable cause requirements. These two requirements—false information and no 

probable cause—themselves “imply and mean that a petitioner seeking expungement . . . has the 

burden to affirmatively demonstrate at a hearing, by a preponderance of the evidence . . . his 

actual innocence of the offense for which he was arrested.” Martinez, 24 S.W.3d at 20. While 

the Martinez court referred to an expungement petitioner being required to prove his “actual 

nonculpability,” the Court simply stated that to do so, a petitioner must “present evidence in an 

effort to show that he meets the specified criteria under [the statute].” Id. at 21. Thus, the 

“actual innocence” standard in the context of expungement proceedings contemplates the 

petitioner establishing that the arrest was based on false information and that there is no probable 

cause for the arrest at the time of the expungement action, as well as the other requirements of 

the statute, not the production of “new evidence.”

Furthermore, statutes relating to the expungement of arrest records are remedial in nature. 

Id. at 19. Remedial statutes “are to be liberally construed as to effect their beneficial purpose.” 

Id. (internal citation omitted). MSHP’s argument that expungement petitioners should be 

required to present new evidence of innocence, as habeas corpus or legal malpractice petitioners 
6

must do, is not only contrary to the text of the statute, but also contravenes a liberal construction

of § 610.122. Such a standard would impose a heightened burden of production not 

contemplated by the statute, making it more difficult to satisfy the statute’s requirements. 

Accordingly, we conclude that an expungement petitioner need not present new evidence 

of innocence in order to be granted an expungement and that the trial court properly applied the 

law to the facts at hand. Point I denied. 

Point II: False Information

In its second point, MSHP contends that the trial court erred in granting Doe’s petition 

for expungement because Doe did not prove that his arrest was based on false information. In 

response, Doe argues that his testimony at the expungement hearing supports that the arrest was 

based on false information. 

In order for a petitioner to establish that his arrest was based on false information, the 

petitioner must prove that some or all of the information that the police relied on to arrest him 

was false. In re Dyer, 163 S.W.3d 915, 918-19 (Mo. banc 2005). MSHP argues that Doe did not 

adduce evidence that the basis for the arrest was false. MSHP compares the present case to 

Adum v. St. Louis Metropolitan Police Dep’t, 423 S.W.3d at 327. In Adum, the petitioner was 

previously arrested for domestic assault. Id. at 328. At his expungement hearing, the 

petitioner’s only evidence was an affidavit from the victim that she did not wish to prosecute. Id.

at 329. However, the STLMPD presented the testimony of two officers who spoke to the victim 

after the incident, and both officers testified that the victim said that the petitioner hit her with a 

laptop and punched her. Id. Accordingly, the Court found that petitioner did not present 

evidence that his arrest was based on false information or that there was no probable cause. Id.

at 330. MSHP also compares Doe’s case to Coleman v. Missouri State Criminal Records 
7

Repository, 268 S.W.3d 464 (Mo. App. E.D. 2008), where the petitioner sought to have an arrest 

for stealing expunged. Id. at 465. At the hearing, the petitioner testified that she not only 

pleaded guilty, but also that she actually committed the offense. Id. at 466-67. Accordingly, the 

trial court denied her petition for expungement, finding that she did not prove that the arrest was 

based on false information and that there was no probable cause at the time of the petition to 

expunge. Id.

Doe’s case is unlike Adum and Coleman. Unlike Adum, no evidence was adduced at the 

expungement hearing that Doe did, in fact, assault the victim with an air gun. Unlike Coleman, 

Doe never admitted that he shot the air gun. The preponderance of the evidence established that 

Doe’s arrest for three counts of assault was based on false information. The false information 

relied on was that Doe, the individual driving the car, was also the person who shot the air gun. 

The undisputed evidence presented at the hearing established that Doe was driving the car when, 

unbeknownst to him, his younger brother shot the air gun. The police located Doe and his 

younger brother through tracking the license plate number of Doe’s car. MSHP did not present 

evidence to establish that an officer observed Doe shoot the air gun, that Doe was aware of his 

brother’s plan to shoot the air gun, or that Doe was present for the two prior incidents of assault. 

The trial court was entitled to determine Doe’s credibility and was free to believe none, part, or 

all of the testimony. Maserang, 211 S.W.3d at 121. MSHP’s claim is without merit.

Based on the foregoing, a preponderance of the evidence showed that Doe’s arrests for 

assault were based on false information. There was substantial evidence to support the trial 

court’s findings. Point II denied.
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Point III: Probable Cause

In its third point, MSHP argues that the trial court erred in granting the petition for 

expungement because Doe failed to show that there was no probable cause at the time of the 

action to expunge to believe that he committed the offense. Doe counters that at the time of the 

expungement hearing, a reasonably prudent person could not have found Doe guilty of assault.

Probable cause, in the context of an expungement petition, “is different than what is 

required to justify an arrest.” Sutton, 2015 WL 2393287, at *3. Rather, probable cause is “in the 

broad sense of ‘reasonable cause’ of ‘having more evidence for than against,’ and of facts that 

would cause a reasonably intelligent and prudent person to believe the accused person had 

committed the crime charged.” Id. (citation omitted).

MSHP argues that Doe’s testimony at the expungement hearing does not meet the burden 

of showing that a reasonably prudent person could not believe that Doe committed three acts of 

assault. We disagree. We again note that the evidence adduced at the expungement hearing was 

that Doe did not shoot the air gun, nor was he involved in the two prior incidents of assault. 

Further, Doe pleaded guilty to a lesser offense of illegal parking as part of a plea agreement on 

the weapons violation. The three charges of assault were nolle prosequi. Doe’s guilty plea to 

illegal parking, in and of itself, does not establish that there was probable cause to arrest Doe for 

assault. 

Accordingly, the trial court’s conclusion that, at the time of the expungement hearing, 

there was no probable cause to arrest Doe for assault, was based on substantial evidence. Point 

III denied.
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Point IV: Issue Preclusion

Finally, MSHP argues that Doe is barred from seeking expungement under the doctrine 

of issue preclusion. Doe counters that MSHP does not satisfy the test for application of issue 

preclusion. Further, Doe argues that MSHP did not properly preserve the issue for appellate 

review and that it is, therefore, waived.

Section 610.124 provides that a party to an expungement action “may appeal the court’s 

decision in the same manner as provided for other civil actions.” Therefore, the general rules 

applicable to appellate review of civil cases apply to appeals of the grant or denial of an 

expungement petition. “An appellant’s failure to preserve an issue at the trial court waives the 

issue, and it is not reviewable on appeal.” Ryan v. Maddox, 112 S.W.3d 476, 479 (Mo. App. 

W.D. 2003). However, “[p]lain errors affecting substantial rights may be considered on appeal, 

in the discretion of the court, though not raised or preserved, when the court finds that manifest 

injustice or miscarriage of justice has resulted therefrom.” Id. at 489 (citations omitted).

Here, MSHP did not argue issue preclusion in either its motion to dismiss or during the 

expungement hearing. Because MSHP never presented the issue to the trial court, it is waived 

and is not reviewable by this Court. Further, MSHP does not request this Court to review for 

plain error. Accordingly, we decline to exercise plain error review. Point IV denied.

Conclusion

The trial court’s judgment is affirmed.

_______________________________

Philip M. Hess, Presiding Judge

Gary M. Gaertner, Jr., J. and 

Angela T. Quigless, J. concur.