State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0726

State of Minnesota,
Respondent,

vs.

Mark Robert Miles,
Appellant.

Filed April 2, 2018
Affirmed in part, reversed in part, and remanded
Reilly, Judge

Ramsey County District Court
File No. 62-CR-15-1660

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Attorney, Thomas B. Hatch, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

John L. Lucas, Steven J. Wright, Minneapolis, Minnesota (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Mark Miles challenges his c onvictions for making retail sales after
revocation of a sales-tax perm it and for willfully failing to pay sales taxes. Appellant
argues that (1) the evidence is insufficient to support the verdict; (2) the statutory definition

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of “person” is unconstitutionally vague; (3) the warrantless search of his bank records
violates the constitution; (4) the district court erred in sentencing; and (5) his probationary
conditions are unsupported by the record. We affirm appellant ’s convictions but reverse
the probationary condition that appellant abstain from alcohol use and remand with
instructions to vacate.
FACTS
Appellant was the owner and chief executive officer of the Green Guardian
Corporation (GGC), a landscaping company. The Minnesota Department of Revenue (the
MDR) issued GGC a sales-tax permit in 2 006. In 2007, GGC’s account went into
collection for failure to submit tax reports an d remit sales taxes on a monthly basis. In
November 2013, when collection efforts proved unsuccessful, the MDR sent GGC a notice
of default and a notice of intent to revoke the company’s sales-tax permit. A collections
agent spoke with appellant and reiterated that appellant was obligated to pay GGC’s back
taxes in full and remit an up-to-date filing of the reports. Appellant failed to pay sales taxes
and, in January 2014, MDR revoked GGC’s sale s-tax permit. Appellant later spoke to a
collections agent and confirmed that the revocation was effective immediately. The agent
cautioned appellant that he could be charged with a felony if he continued operating GGC
without a sales-tax permit.
In April 2014, a former employee, G.H., informed the MDR that he purchased GGC
from appellant for one dollar and wanted to operate the business as Green Guardian
LandCare (GGL). The MDR agents were una ble to verify that GGC and GGL were
separate businesses and referred the case to MDR’s Criminal Investigation Division for

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investigation. The investigation revealed th at appellant had a defu nct business known as
Creative Automotive Products, Inc. (CAP), which was incorporated in 1992 and dissolved
in 1996. Appellant reactivated CAP in March 2014, converte d the company from a
corporation to a limited-lia bility company, and changed the name from CAP to GGL.
Records from the Minnesota Secr etary of State did not reflect that G.H. was an owner or
officer of GGL. G.H. was not authorized to sign checks on any of the bank accounts
associated with GGL, and had no control over how the funds were deposited or used. G.H.
continued to receive a paycheck from appellant with the same hourly wage that he earned
as an employee of GGC, and continued to perfo rm “the same role [he] had since the day
[he] started” at GGC. GGC and GGL operated out of the same business location, used the
same vehicles, products, tools, chemicals, and phone numbers, a nd relied on the same
customer-invoicing system.
The state charged appellant with making re tail sales after revocation of a sales-tax
permit and with willfully failing to pay sales taxes. Appellant waived his right to a jury
trial, and the case proceeded to a bench trial in January 2017. The district court adjudicated
appellant guilty of making retail sales after revocation of a sales-tax permit and of willfully
failing to pay sales taxes, and imposed sentence. This appeal follows.
ANALYSIS
I. Minnesota Statutes section 289A.63 is not unconstitutionally vague.
We first address appellant’s argument that Minnesota Statutes section 289A.63 is
unconstitutionally vague. “The void-for-vagueness doctrine re quires that a penal statute
define the criminal offense with sufficient definiteness that ordinary people can understand

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what conduct is prohibited and in a manne r that does not encourage arbitrary and
discriminatory enforcement.” State v. Bussmann , 741 N.W.2d 79, 83 (Minn. 2007)
(citation and quotation omitted). The “touchstone” is “whether the statute, either standing
alone or as construed, made it reasonably clear at the relevant time that the defendant’s
conduct was criminal.” State v. Stockwell , 770 N.W.2d 533, 540 (Minn. App. 2009)
(citation omitted). We presume that Minnesot a statutes are constitutional and we will
exercise our power to declare a statute unconstitutional “only when absolutely necessary.”
Bussmann, 741 N.W.2d at 82 (quo tation omitted). “A party challenging a statute on
constitutional grounds must demonstrate, bey ond a reasonable doubt, that the statute
violates a provision of the constitution.” State v. Grossman, 636 N.W.2d 545, 548 (Minn.
2001).
“A person who engages in the business of making retail sales in Minnesota after
revocation of a [sales-tax] permit . . . when the commissioner has not issued a new permit,
is guilty of a felony.” Minn. Stat. § 289A.63, subd. 3(b) (2016). Appellant contends that
the term “person” is ambiguous because it is broader than the definition of “person” used
elsewhere in the tax code. We are not persuade d. “The fact that taxpayers must rely on
common sense and intelligence to determin e whether their conduct complies with
[Minnesota tax] law does not render the law unconstitutionally vague on its face.” State v.
Enyeart, 676 N.W.2d 311, 321 (Minn. App. 2004) (citing State v. Kuluvar, 266 Minn. 408,
417, 123 N.W.2d 699, 706 (1963) (providing that use of broad, flexible standards requiring
exercise of judgment does not render statut e unconstitutional)). A statute is void for
vagueness if a person must “guess at its meaning.” State v. McElroy, 828 N.W.2d 741, 744

5
(Minn. App. 2013) (citation om itted). However, “[a] law that is flexible and reasonably
broad is nonetheless constitutional if it is clea r what the law as a whole proscribes.”
Enyeart, 676 N.W.2d at 321 (citation omitted); see also State v. Hipp , 298 Minn. 81, 88,
213 N.W.2d 610, 615 (1973) (construing statute in context and in light of its intent). Here,
when viewed in context, an individual of ordinary intelligence would be able to determine
whether or not their involvement with a business would qualify them as a “person” under
Minnesota Statutes section 289A.63, subdivis ion 3(b). Given the strong presumption in
favor of upholding the constitutionality of an ordinance, Bussmann, 741 N.W.2d at 82, we
determine that appellant did not satisfy his heavy burden of establishing that section
289A.63 is unconstitutional.
II. The evidence supports appellant’s convictions.
In evaluating the sufficiency of the evidence, we empl oy the same standard of
review for both bench and jury trials. State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011).
Our review of a sufficiency-of-the-evidence challenge is limited to a “painstaking analysis
of the record” to determine wh ether the evidence, when viewed in a light most favorable
to the conviction, was sufficient to support the conviction. State v. DeRosier, 695 N.W.2d
97, 108 (Minn. 2005) (quotation omitted). We will not disturb the verdict if the fact-finder,
“acting with due regard for th e presumption of innocence a nd the requirement of proof
beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the
charged offense.” State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012).
We apply a heightened standard of review, however, when an element of the offense
rests on circumstantial evidence. State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017); State

6
v. Al-Naseer , 788 N.W.2d 469, 474 (Minn. 2010) (holding that a conviction based on
circumstantial evidence warrants heightened scrutiny).
In reviewing the sufficiency of circum stantial evidence, we first identify the
circumstances proved and then “examine independently the reasonableness of all
inferences that might be drawn from the circumstances proved, including inferences
consistent with a hypothesis other than guilt.” State v. Porte, 832 N.W.2d 303, 310 (Minn.
App. 2013) (quotations omitted). We defer to the fact-finder’s acceptance of the
circumstances proved and rejection of evidence conflicting with those circumstances. State
v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013). We assume the fact-finder “believed the
state’s witnesses and disbelieved a ny evidence to the contrary.” State v. Caldwell , 803
N.W.2d 373, 384 (Minn. 2011 ) (quotation omitted). “This is especially true whe[n]
resolution of the case depends on conflicting testimony, because weighing the credibility
of witnesses is the exclusive function of the [fact-finder].” State v. Pieschke, 295 N.W.2d
580, 584 (Minn. 1980). We independently co nsider the inferences to determine if a
hypothesis of innocence is unreasonable. See Harris, 895, N.W.2d at 601.
Appellant challenges the sufficiency of the evidence underlying his six convictions
of failing to pay or collect and remit sales taxes. Specifically, he argues the evidence was
insufficient to prove beyond a reasonable doubt that he was a “person” for purposes of the
offenses of which he was convicted. Minnesot a law provides that “[a] person required to
pay or to collect and remit a ta x, who willfully attempts to evade or defeat a tax law by
failing to do so when required, is guilty of a felony.” Minn . Stat. § 289A.63, subd. 1(b)
(2016). A “person” is “any officer or employee of a corporation or a member or employee

7
of a partnership who as an officer, member, or employee is under a duty to perform the act
in respect to which the violation occurs.” Minn. Stat. § 289A.63, subd. 10 (2016).
In its findings of fact, the district cour t concluded that appellant was a “person”
responsible for collecting and remitting sales ta xes and with respect to the first prong of
the heightened-scrutiny analysis, the circumstances proved are as follows. Appellant is the
owner and operator of GGC. Af ter his account went into collections, appellant revived
CAP, identified himself as CAP’s chief ex ecutive officer, converted the company to a
limited-liability company, changed the comp any name to GGL, a nd purported to sell
ownership of the company to G.H. for one dollar. There is no evidence of a stock purchase
agreement legitimizing this transfer. Afte r the transfer, G.H. performed the same
professional duties, received the same paycheck, and did not have access to company bank
accounts. Appellant opened checking accounts in the name of GGL and was an authorized
check signer on all of the bank accounts held by both companies. GGC and GGL operated
out of the same building, used the same vehicles, tools and equipment, email and telephone
numbers, and marketing materials, and invoiced customers in the same manner. When a
customer paid an invoice, appellant determ ined which company re ceived the funds, and
directed which bills should be paid. These circumstances are consistent with guilt. See
Silvernail, 831 N.W.2d at 599.
We next consider whether the circumstances proved are consistent with a reasonable
inference other than guilt. Al-Naseer, 788 N.W.2d at 473-74. Here, the circumstances
proved are that appellant owned and operat ed GGC and GGL, oper ated both companies
out of the same location, used the same ma terials and vehicles, and was the check-signer

8
on all of the bank accounts. In light of th ese circumstances, it would be unreasonable for
a fact-finder to infer that appellant was not responsible for paying taxes. We therefore
conclude that sufficient eviden ce exists to permit the district court to conclude beyond a
reasonable doubt that appellant was guilty of violating Minnesota Statutes section 289A.63,
subdivisions 1(b) and 3(b).
Appellant also challenges the sufficiency of the evidence underlying his conviction
of making retail sales after revocation of a sales-tax permit. “A person who engages in the
business of making retail sales in Minnesota after revocation of a permit under section
270C.722, when the commissioner has not issued a new permit, is guilty of a felony.”
Minn. Stat. § 289A.63, subd. 3(b).
The district court also determined that appellant was a pers on engaged in the
business of making retail sales in Minnesota after revocation of his sales-tax permit, where
the commissioner had not issued a new permit. See Minn. Stat. § 289A.63, subd. 3(b). We
again apply the heightened-scrutiny standard of review. With respect to the first prong, the
circumstances proved are as follows: GGC’s account went into collection in 2007 for
failing to remit sales taxes, and the MDR revoked the company’s sales-tax permit in
January 2014. A collections agent advised appellant that he could be charged with a felony
if he continued to operate the business with out a sales-tax permit. Shortly thereafter,
appellant revived a dormant company an d changed its name to GGL. GGL is
indistinguishable in operation from GGC. Appellant failed to remit sales taxes collected
from the company. The circumstances proved by the state are consistent with appellant’s
guilt. See Silvernail, 831 N.W.2d at 599.

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The second step requires us to consid er whether the circumstances proved are
consistent with guilt and inconsistent with any reasonable hypothesis other than guilt. Al-
Naseer, 788 N.W.2d at 473-74. Appellant argues that he believed the sale of GGL to G.H.
was a “valid sale,” and claims that the district court insufficiently credited the testimony of
his witnesses. But these are not reasonable inferences, based on the circumstances proved.
Appellant controlled the bank accounts of both companies, operated both companies in the
same manner, and failed to remit sales taxes for those companies. The only reasonable
inference, given the totality of the circumstances, is that appellant willfully evaded
Minnesota’s tax laws.
In sum, we determine that su fficient evidence exists to permit the district court to
conclude beyond a reasonable doubt that appellant is guilty of violating Minnesota Statutes
section 289A.63, subdivisions 1(b) and 3(b).
III. Appellant lacks standing to object to the use of his bank records.
During the course of its investigation, th e MDR’s Criminal Investigation Division
issued subpoenas to banks used by appellant, GGC, and GGL. Appellant was not notified
of these subpoenas because they were issued as part of a criminal investigation. Appellant
argues that the warrantless search of his bank records violates his constitutional rights. We
determine that appellant lacks standing to object to the use of banking records at trial.
In United States v. Miller , the United States Supreme Co urt held that the Fourth
Amendment does not prohibit the government from obtaining information “revealed to a
third party and conveyed by [t he third party] to Governme nt authorities, even if the
information is revealed [by the defendant] on the assumption that it will be used only for a

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limited purpose and the confidence placed in th e third party will not be betrayed.” 425
U.S. 435, 443, 96 S. Ct. 1619, 1624 (1976) (concluding that bank depositor did not have a
legitimate “expectation of privacy” in bank records). And in State v. Milliman , the
Minnesota Supreme Court considered whether it was improper for the county attorney’s
office to use its subpoena power to obtain a defendant’s banking and employment records.
346 N.W.2d 128, 130 (Minn. 1984). The Minnesota Supreme Court cited Miller for the
principle that the “defendant had no reasonable expectation of privacy in the records in
question,” and, therefore, “[did] not have a constitutional interest in the records that would
entitle him to challenge the subpoenas.” Id. Given the uncontroverted holdings of Miller
and Milliman, we determine that appellant lacks standing to object to the use of his banking
records at trial.
IV. The district court’s sentencing decision is not erroneous.
Appellant argues that the district court e rred in sentencing because his convictions
arose from a single behavioral incident. Minnesota Statutes section 609.035 bars multiple
punishments for offenses that arise from the same behavioral incident. See Minn. Stat.
§ 609.035, subd. 1 (2016) (“[I]f a person’s conduct constitutes more than one offense under
the laws of this state, the person may be punished for only one of the offenses and a
conviction or acquittal of any one of them is a bar to prosecution for any other of them.”).
When a person is charged with multiple offenses, a district court must examine the offenses
charged to determine whether they “resu lted from a single behavioral incident.” State v.
Johnson, 273 Minn. 394, 404, 141 N. W.2d 517, 524 (1966). In such instances, multiple
sentences are strictly prohibite d to “protect a defendant co nvicted of multiple offenses

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against unfair exaggeration of the criminality of his conduct.” State v. Norregaard, 384
N.W.2d 449, 449 (Minn. 1986). The state bears the burden to establish that the offenses
were not committed as part of a single behavioral incident. State v. Williams, 608 N.W.2d
837, 841 (Minn. 2000). We re view de novo the district c ourt’s determination of whether
multiple offenses arose from a single behavioral incident. State v. Bauer, 776 N.W.2d 462,
477 (Minn. App. 2009), aff’d, 792 N.W.2d 825 (Minn. 2011).
The district court adjudicat ed appellant guilty of seve n felonies and imposed a
separate sentence on each count. Appellant argues that his convictions arose from a single
criminal objective and constitute a single behavioral incident. “Whether two acts are part
of a single course of conduct depends on the facts of the particular case.” State v. Bakken,
871 N.W.2d 418, 425 (Minn. App. 2015) (quoting State v. Hawkins , 511 N.W.2d 9, 13
(Minn. 1994)). When analyzing whether multiple , intentional crimes are part of a single
behavioral incident, we consider “the factors of [a unity of ] time and place and whether a
defendant is motivated by a si ngle criminal objective.” Id. (quoting State v. Bookwalter,
541 N.W.2d 290, 294 (Minn. 1995)). Here, th e offenses were not part of the same
behavioral incident because th e tax violations occurred on different dates and involved
different payments deadlines. 1 Appellant violated the tax code by failing to remit sales
taxes on a monthly basis, as required. The st ate satisfied its burden of establishing that

1We reached the same decisi on in an unpublished case, State v. Beattie , No. A13-1099,
2014 WL 1660688, at *1 (Minn. App. Apr. 28, 2014), affirming the district court’s order
that 18 counts of tax evasion constituted separate behavioral incidents “because each
involved a different type of tax with a diffe rent filing date and with a different payment
deadline.” Id. at *7.

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appellant’s conduct did not arise from a single behavioral incident by establishing that the
tax violations occurred on different dates. Under these circumstances, the district court
properly sentenced appellant on each of the separate offenses.
V. The district court’s probationary decisions are affirmed in part and reversed in part.

Appellant argues that the district court abused its discretion by prohibiting him from
“engag[ing] in any sales, retail or otherwise, ” while he is on probati on. We disagree. A
district court has broad discretion in setting the terms and conditions of probation. State v.
Franklin, 604 N.W.2d 79, 82 (Minn. 2000). Probationary conditions “must be reasonably
related to the purposes of sentencing and must not be unduly restrictive of the probationer’s
liberty or autonomy.” Id. (quotation omitted). The evidence produced at trial demonstrates
that appellant has a long history of failing to pay sales taxes. The district court’s prohibition
against engaging in retail sales is reasonably related to preventing such future conduct and
does not constitute an abuse of discretion.
The district court also ordered appellant to abstain from alcohol use as one of the
conditions of probation. The state does not object to a modification of appellant’s sentence
to remove “no alcohol” as a probationary co ndition. We therefore reverse that portion of
the sentence and remand with instructions to the district court to vacate the no-alcohol-use
condition of appellant’s probation.
Affirmed in part, reversed in part, and remanded.