This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



John Herman Brevik,


Filed May 19, 1998


Foley, Judge

Anoka County District Court

File No. K2-97-103

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

F. Clayton Tyler, 230 Midland Square Building, 331 Second Avenue South, Minneapolis, MN 55401 (for appellant)

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

Considered and decided by Toussaint, Chief Judge, Foley, Judge, and Mansur, Judge.*


FOLEY, Judge

Appellant John Herman Brevik challenges his conviction for making sales without a sales tax permit, contending that (1) because the evidence demonstrated that he was only an employee of the business, he cannot be held liable for its actions; (2) he should have been permitted to cross-examine witnesses at his probable cause hearing; and (3) the district court abused its discretion in sentencing. We affirm.


Appellant owned a business named "Health & Education Association, Inc." It dissolved after the state revoked its sales tax permit on May 3, 1995 for failure to file any tax returns. Appellant asked his former girlfriend to file for a sales tax permit, issued February 23, 1995, for a new business named "Health & Education, Inc." This business used the same checking account and operated out of the same facilities as Health & Education Association, Inc. On September 29, 1995, a letter demanding sales tax returns was sent to Health & Education, Inc. because it had failed to file any sales tax returns. On December 31, 1995, the company filed sales tax returns for the first nine months of 1995, but did not pay any taxes. On April 23, 1996, the state revoked the sales tax permit issued to Health & Education, Inc.

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

A representative from the Department of Revenue met with appellant on April 26, 1996, and advised him that he would need a sales tax permit to operate the business. Appellant acknowledged that he needed the permit. On September 13, 1996, a department representative spoke with a person doing business with appellant who provided receipts for multiple taxable sales transactions made from a period from May 13, 1996, through August 8, 1996. The sales order forms indicate the transactions occurred after the revocation of Health & Education, Inc.'s sales tax permit.

The parties stipulated to the district court's adjudication of the case based solely on the complaint. Part of appellant's sentence was to timely file all future state and federal tax forms, because he had not filed business or personal income tax forms in Minnesota for the years 1993 through 1996. Appellant challenges that sentence as well as the legal basis for the guilty verdict.


1. Sufficiency of Stipulated Evidence

When determining the sufficiency of the evidence, we view the evidence in a light most favorable to the verdict and decide whether the trier of fact reasonably could have found the defendant guilty of the crime charged. State v. Olkon, 29 N.W.2d 89, 106 (Minn. 1980). The reviewing court must assume the trier of fact believed the state's witnesses and disbelieved any contrary evidence. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).

Appellant was convicted of one count of making retail sales without a permit.

A person who engages in the business of making retail sales in Minnesota after revocation of a permit under section 297A.07, when the commissioner has not issued a new permit, is guilty of a felony.

Minn. Stat. § 289A.63, subd. 3(b) (1996). If the sales occur without the necessary permits, the offense is a gross misdemeanor, but if the sales occur after the permits have been revoked, it is a felony. Minn. Stat. § 289A.63, subd. 3 (1996).

Appellant did not actually have to own the business to be criminally liable. He was at least a managing agent of Health & Education, Inc. and is responsible in that capacity.

It is the universal rule that an officer or agent of a corporation cannot avoid responsibility for his act on the ground that it was done in his official capacity, nor can he assert that acts in corporate form are not his acts merely because they are carried on by him through the instrumentality of the corporation which he controls and dominates and which he has employed for that purpose.

State v. McBride, 215 Minn. 123, 131, 9 N.W.2d 416, 420 (1943). Appellant is attempting to use the corporation as a shield for his criminal activities. It is uncontroverted that appellant knew of the permit's revocation. He stipulated to the complaint, and the complaint noted a discussion between appellant and a representative of the revenue department regarding the loss of the permit. At that time appellant specifically acknowledged that he knew he needed a state sales tax permit to operate his business. Months later, however, he continued to charge state sales taxes without filing or paying them. Thus, we conclude sufficient evidence existed for the district court to find appellant guilty of making retail sales without a permit.

2. Cross Examination of Witnesses at a Probable Cause Hearing

Appellant also claims he was improperly denied the opportunity to cross-examine witnesses during the omnibus probable cause hearing. The rules of criminal procedure require the opportunity for cross-examination of any live witnesses called, but they do not mandate the use of live witnesses. See Minn. R. Crim. P. 11.03 ("Each party may cross-examine any witnesses produced by the other."). Appellant argued that he was denied the opportunity to cross-examine witnesses "required to be produced by the other party." Because the parties stipulated to adjudication of the case based on the complaint, and the district court subsequently found this evidence sufficient to convict appellant, we conclude no witnesses were required to be produced at the probable cause hearing. Thus, appellant was not denied the right to cross-examine witnesses.

3. Sentencing

As one of the conditions of his probation, the district court required appellant to timely file his future state and federal tax forms. Appellant contends that this is an improper condition, as the district court did not have jurisdiction over the issue of his tax returns.

District courts have considerable leeway in setting the terms and conditions of probation, and that discretion is usually upheld so long as the conditions are "reasonably related to the purposes of sentencing" and are not "unduly restrictive of the probationer's liberty or autonomy." State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989). Because appellant has a history of noncompliance with applicable tax codes, we conclude it was within the district court's discretion to mandate he remain law-abiding and file his required tax forms in a timely manner.