State of Minnesota, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-2009

State of Minnesota,
Appellant,

vs.

Daniel Roy O’Day,
Respondent.

Filed July 14, 2025
Reversed and remanded
Bjorkman, Judge

Crow Wing County District Court
File No. 18-CR-24-2136

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for appellant)

Matthew Wildes, Wildes at Law LLC, Roseville, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Bratvold, Judge; and Segal,
Judge.∗
SYLLABUS
A person commits felony tax evasion under Minn. Stat. § 289A.63, subd. 1 (2018),
if they (1) had an obligation to file a tax return or pay taxes due, (2) did not satisfy their

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
tax obligation, and (3) failed to do so with the purpose to evade or defeat their tax
obligation. The state does not need to prove an additional evasive act.
OPINION
BJORKMAN, Judge
In this pretrial prosecution appeal, a ppellant State of Minnesota challenges the
district court’s order dismissing all charges against respondent Daniel Roy O’Day for lack
of probable cause. The state argues that the district court erred by interpreting the phrase
“willfully attempts in any manner to evade or defeat a tax” in the tax-evasion statute to
require evidence of an affirmative act—separate from the failure to file a tax return or pay
taxes owed—demonstrating an intention to evade or defeat a tax. Because the district court
erred by concluding that probable cause does not support the charges against O’Day, we
reverse and remand.
FACTS
The complaint alleges that in early 2023, the Minnesota Department of Revenue
(the department) received a tip that O’Day had not been filing state income taxes for
himself and his company, O’Day Transportation. The department’s subsequent
investigation revealed that from 2006 to 2014, O’Day was a W-2 employee and
consistently filed tax returns and paid state income taxes. O’Day last paid taxes in 2014,
filing as “Single-Head of Household,” and listing his occupation as “Appliance Delivery.”
In 2015, O’Day became self-employed and registered O’Day Transportation with
the Minnesota Secretary of State . The registration expired in 2016, and O’Day never
renewed it. But the department uncovered information that O’Day Transportation
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continued to operate and received income after that time. The department obtained 1099
tax forms from Forward Final Mile (F orward), which contracted with O’Day
Transportation to pick up, deliver, and install appliances F orward shipped to its hub in
Brainerd. The 1099s show Forward paid O’Day Transportation $609,709.44 in 2020,
$846,025.57 in 2021, and $897,320.81 in 2022. 1099G forms from 2021 and 2022 reveal
that O’Day also received $107,980.48 from casino winnings. O’Day did not report or pay
income taxes on the 1099 income or casino winnings.
The department also obtained O’Day’s bank records, discovering that he comingled
personal and business expenses in four separate accounts. From its investigation, the
department determined that O’Day had sufficient income to require filing of state income
tax returns and payment of taxes during the relevant time period , and that he owed
approximately $97,000 in unpaid income taxes.
In 2024, the state charged O’Day with ten counts of felony tax evasion for conduct
that occurred from 2019-2023.1 Five counts charged O’Day with “willfully attempt[ing]
in any manner to evade or defeat a tax law by failing to file . . . State Income Tax return[s]
when required to do so.” The other five counts charged O’Day with “willfully attempt[ing]
to evade or defeat a tax law by failing to remit . . . income taxes when required to do so.”
O’Day moved to dismiss the charges for lack of probable cause, arguing that there
was “no evidence that [he] attempted to evade or defeat the tax,” and that the complaint
only alleged “mere passive failure to timely file the returns and/or pay the taxes.” The state

1 The offense dates correspond to tax years 2018-2022.
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argued that the felony- level offense “is complete by willfully failing to file or pay when
required,” and that “intent [was] for the jury to decide.”
The district court granted O’Day’s motion and dismissed all of the charges,
reasoning that the “legislature intended for a felony charge to be supported by something
more than just an individual knowingly failing to file or pay their taxes.” According to the
district court, this “something more” is “other evidence to support a willful attempt to
evade,” and “the State has not provided evidence of any such behavior.” The state filed a
motion to reconsider, which the district court denied.
The state appeals.
ISSUES
I. Does the phrase “willfully attempts to evade or defeat a tax” as used in Minn. Stat.
§ 289A.63, subd. 1, require the state to prove the defendant’s failure to file or pay
taxes due and an additional evasive act to establish felony tax evasion?

II. Did the district court err by dismissing the charges for lack of probable cause?

ANALYSIS
The state’s ability to appeal in a criminal case is limited. State v. Lugo, 887 N.W.2d
476, 481 (Minn. 2016) (noting state’s right to appeal is “strictly construed because such
appeals are not favored”). Under Minn. R. Crim. P. 28.04, subd. 1(1), the state has the
right to appeal “probable cause dismissal orders based on questions of law.” But the rule
precludes the state from appealing probable-cause dismissals “premised solely on a factual
determination.” Minn. R. Crim. P. 28.04, subd. 1(1). Whether a probable-cause dismissal
is legal or factual in nature “is a threshold jurisdictional question.” State v. Ciurleo, 471
N.W.2d 119, 121 (Minn. App. 1991).
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In State v. Gray, the supreme court concluded that a probable- cause dismissal was
appealable because it was based, in part, on the district court’s interpretation of the statute
governing admission of a defendant’s confession. 987 N.W.2d 563, 566-67 (Minn. 2023).
Likewise, the district court here based its dismissal, in part, on its determination that Minn.
Stat. § 289A.63, subd. 1, requires the state to prove both a failure to satisfy a tax obligation
and another act or behavior indicating a willful attempt to evade the obligation. Because
the district court’s dismissal order is at least partly based on its interpretation of the law, it
is appealable.2
I. To establish a felony violation of Minn. Stat. § 289A.63, subd. 1, the state is not
required to prove that the defendant committed an evasive act in addition to
failing to file or pay taxes due.

Minnesota Statutes section 289A.63, subdivision 1, establishes criminal offenses for
failing to file tax returns and pay taxes. The statute provides that a person may commit tax
evasion in one of two ways:
(a) A person required to file a return, report, or other
document with the commissioner, who knowingly, rather than
accidentally, inadvertently, or negligently, fails to file it when
required, is guilty of a gross misdemeanor. A person required
to file a return, report, or other document who willfully attempts
in any manner to evade or defeat a tax by failing to file it when
required, is guilty of a felony.

2 The parties frame the jurisdictional issue as whether the district court’s decision has a
“critical impact” on the state’s case. See State v. Serbus, 957 N.W.2d 84, 87 (Minn. 2021);
Minn. R. Crim. P. 28.04, subd. 2(2). We agree with the parties that dismissal of all charges
generally satisfies the critical-impact requirement. See State v. Gosewisch, 921 N.W.2d
796, 798 (Minn. App. 2018), rev. denied (Minn. Mar. 19, 2019). But Minn. R. Crim.
P. 28.04, subd. 1(1), compels a different jurisdictional analysis of probable-cause
dismissals, which we apply above.
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(b) A person required to pay or to collect and remit a
tax, who knowingly, rather than accidentally, inadvertently, or
negligently, fails to do so when required, is guilty of a gross
misdemeanor. A person required to pay or to collect and remit
a tax, 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 (emphasis added). In both instances, liability is premised
on a person’s failure to satisfy a tax obligation. The distinction between the gross
misdemeanor and felony penalty levels turns on the difference between “knowingly”
failing to do so and “willfully attempt[ing] to evade or defeat” their tax obligation. State
v. Larson, 605 N.W.2d 706, 717 (Minn. 2000).
The parties disagree about whether the phrase “willfully attempts to evade or defeat
a tax” requires the state to prove—in addition to the failure to file a return or pay a required
tax—that the defendant committed a separate willful act to establish a felony-level
violation. The state argues that “willfully attempts to evade or defeat a tax” defines the
intent required to support a felony violation. According to the state, the first element of
the tax-evasion offense—the actus reus of the crime—is the failure to file or pay taxes
when required to do so. The mens rea offense element—which requires the defendant to
know the facts that make their conduct illegal—is the knowing failure to do so (gross
misdemeanor) or the willful failure to do so by attempting to evade or defeat the tax
obligation now or in the future (felony). See State v. Dorn, 887 N.W.2d 826, 830 (Minn.
2016) (defining mens rea). O’Day focuses on the word “attempt,” arguing that its inclusion
demonstrates that additional “affirmative action” is required to elevate the crime of evading
a tax obligation to a felony. In other words, O’Day contends the phrase “willfuly attempt
7
to evade or defeat” creates a second actus reus element, which the complaint does not
allege. Determining the elements of an offense is a matter of statutory interpretation that
we review de novo. State v. Beganovic, 991 N.W.2d 638, 647 (Minn. 2023).
When interpreting a statute, our goal is to discern and effectuate the legislature’s
intent. State v. Abdus -Salam, 1 N.W.3d 871, 876 (Minn. 2024); see also Minn. Stat.
§ 645.16 (2024). In doing so, we first determine whether the statutory language is
ambiguous. State v. Thonesavanh, 904 N.W.2d 432, 435 (Minn. 2017). Statutory language
is ambiguous if it is “ subject to more than one reasonable interpretation.” Id. (quotation
omitted). If statutory language is unambiguous, we apply its plain meaning. Abdus-Salam,
1 N.W.3d at 877. To determine plain meaning, we look to both the text and the statutory
context. State v. Bee, 17 N.W.3d 150, 153 (Minn. 2025).
To ascertain whether the phrase “willfully attempts to evade or defeat a tax” requires
the state to establish a second actus reus , we begin by interpreting the statutory language.
“Willful” is not defined in either Minn. Stat. § 289A.02 (2018) (tax-law definitions) or
Minn. Stat. § 609.02 (2018) (criminal-law definitions). Accordingly, we may look to
dictionary definitions of the term to determine if the statute’s meaning is plain.
Thonesavanh, 904 N.W.2d at 436. Dictionaries define “willful” as “[s]aid or done on
purpose; deliberate,” The American Heritage Dictionary of the English Language 1982
(5th ed. 2018); “[d]one wittingly or on purpose, as opposed to accidentally or casually;
voluntary and intentional, but not necessarily malicious,” Blacks Law Dictionary 1922
(12th ed. 2024) ; and “done deliberately; intentional,” Merriam- Webster’s Collegiate
8
Dictionary 1433 (11th ed. 2014). The ordinary meaning of “willful” clearly contemplates
deliberate, intentional conduct.
Minn. Stat. § 609.02, subd. 9(3), defines “intentionally” to mean that a person has
“a purpose to do the thing or cause the result specified.” See State v. Cyrette, 636 N.W.2d
343, 348 (Minn. App. 2001) (holding use of term “willfully” in child-neglect statute means
“intentionally”), rev. denied (Minn. Feb. 19, 2002). In contrast, “knowingly” is statutorily
defined to “require[] only that the actor believes the specified fact exists.” Minn. Stat.
§ 609.02, subd. 9(2) (defining “know”). Importantly, both intent and knowledge re late to
mens rea. See Dorn, 887 N.W.2d at 830-31. In the context of the tax-evasion statute, we
thus conclude “knowingly” means that the person believes that they failed to file a tax
return or pay a required tax. And we conclude that “willfully” means that the person
knowingly failed to file a tax return or pay a required tax with the purpose to attempt to
evade or defeat their tax obligation.3
The plain statutory terms and context convince us that the phrase “willfully attempts
to evade or defeat a tax” does not create an additional actus reus offense element. Rather,
it distinguishes the mens rea required to establish a felony violation of the statute

3 In State v. Beattie, we applied “willfully” to require proof of “specific intent to
purposefully evade the [tax] obligation now and in the future.” No. A13-1099, 2014 WL
1660688, at *5 (Minn. Apr. 28, 2014), rev. denied (Minn. July 15, 2014). While Beattie
did not formally interpret the statute—instead relying on the district court’s description of
the law as set out in the unobjected to jury instructions—and it is not a precedential opinion,
we consider it persuasive authority as to the meaning of “willfully” in the tax-evasion
statute. See Minn. R. Civ. App. P. 136.01, subd. 1(c) (“[N]onprecedential opinions may
be cited as persuasive authority.”).
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(willfullness) from that required to establish a gross misdemeanor violation (knowledge).
In both instances, the actus reus remains the same: failure to comply with a tax obligation.
To persuade us otherwise, O’Day points to Spies v. United States, 317 U.S. 492, 497
(1943), which interprets the federal tax-evasion statutes, to argue that the phrase “willfully
attempts to evade or defeat a tax” requires the state to prove a separate evasive act “taken
with the intent to trick, deceive, or mislead.” We are not persuaded.
Unlike Minnesota’s statute, the federal statute s use the term “willful ” to describe
the mens rea element of both misdemeanor and felony-level offenses. The federal statutes
separately punish a “willful[] attempt[] in any manner to evade or defeat any tax” as a
felony and a “willful[] fail[ure] to pay such estimated tax or tax, make such return, keep
such records, or supply such information” as a misdemeanor. 26 U.S.C. §§ 7201, 7203
(2018). The distinction between the federal and state statutory schemes is significant. As
the Supreme Court noted in Spies, “[t]he difference between willful failure to pay a tax
when due, which is made a misdemeanor, and willful attempt to defeat and evade one,
which is made a felony, is not easy to detect or define.” 317 U.S. at 497. To do so, the
Supreme Court focused on “the affirmative action implied from the term ‘attempt,’ as used
in the felony subsection,” holding: “We think that in employing the terminology of attempt
to embrace the gravest of offenses against the revenues Congress intended some willful
commission in addition to the willful omissions that make up the list of misdemeanors.”
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Id. at 498-99.4 And the Supreme Court explained that such an additional willful act could
be inferred from conduct such as “keeping a double set of books, making false entries or
alterations, or false invoices or documents, destruction of books or records, concealment
of assets or covering up sources of income.” Id. at 499.
Minnesota’s tax-evasion statute does not require us to similarly parse the statutory
language to discern the legislature’s intent; the statute plainly distinguishes the mens rea
required for the misdemeanor offense (knowing) from that required for the felony offense
(willful attempt to evade). Accordingly, we are not convinced that Spies conflicts with our
conclusion that Minnesota’s statute elevates tax evasion to a felony-level offense upon
proof that the defendant failed to satisfy a tax obligation with the purpose to evade or defeat
such obligation; no separate evasive act is required. But the examples of evidence evincing
affirmative willful conduct outlined in Spies are instructive as to the type of evidence the
state may marshal to prove that a defendant acted with the purpose to evade or defeat a tax
obligation. See State v. Rhodes, 657 N.W.2d 823, 840 (Minn. 2003) (“Intent may be
inferred from events occurring before and after the crime and may be proved by
circumstantial evidence.”).
In sum, to prove felony tax evasion under Minn. Stat. § 289A.63, subd. 1, the state
must prove the defendant knew they were obligated to file a tax return or pay taxes due,
did not satisfy their tax obligation, and failed to do so with the purpose to evade or defeat

4 The Supreme Court noted that it was not necessary to turn to “the complexities of the
common law” when discerning the meaning of “attempt” in the federal statute. Spies, 317
U.S. at 498.
11
their tax obligation. The state does not need to prove an additional evasive act. We
therefore turn to whether probable cause supports the charges against O’Day.
II. Probable cause supports the charged offenses.

When a defendant challenges probable cause, the district court must determine if,
“[g]iven the facts disclosed by the record, is it fair and reasonable . . . to require the
defendant to stand trial.” State v. Florence, 239 N.W.2d 892, 902 (Minn. 1976); see Minn.
R. Crim. P. 11.04, subd. 1(c) (stating the district court may base a probable-cause decision
“on the complaint or the entire record, including reliable hearsay”). “Probable cause exists
where the facts would lead a person of ordinary care and prudence to hold an honest and
strong suspicion that the person under consideration is guilty of a crime.” State v. Trei,
624 N.W.2d 595, 597 (Minn. App. 2001). The district court should deny a motion to
dismiss for lack of probable cause “if the facts before the district court present a fact
question for the jury’s determination on each element of the crime charged.” State v. Lopez,
778 N.W.2d 700, 704 (Minn. 2010) (quotation omitted).
The district court dismissed the complaint because it determined that the state did
not allege facts necessary to support the felony-level tax-evasion charges. The district
court explained that “the record reflects that [O’Day] had a knowledge of his duty to file
tax returns and pay said taxes, and even supports a probable cause finding that [O’Day]
knowingly failed to do so.” But the court concluded that “this record does not support a
finding of the additional willful attempt that is necessary for a felony-level charge.”
Because the district court’s determination was based, in part, on its interpretation of the
law, we review the decision de novo. State. v. Dixon, 981 N.W.2d 387, 392 (Minn. 2022).
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Having concluded that the state does not need to prove that O’Day committed an
evasive act in addition to failing to file or pay required taxes, we turn to whether the record
creates fact questions for the jury as to whether O’Day committed felony-level violations
of the tax-evasion statute. The state argues that his “willful attempt to evade” his tax
obligations may be inferred from the evidence, including O’Day’s “repeated and consistent
failure to file state income tax returns or pay income tax for nearly a decade while receiving
hundreds of thousands of dollars of business income a year.” Specifically, the state points
to the following inferences: (1) O’Day knew that he had to file state income tax returns and
pay state income taxes, having done so from 2006 to 2014; (2) O’Day “was a sophisticated
and seemingly successful business [owner], who stopped filing tax returns or paying
income tax after starting his own business”; (3) O’Day “used the income from his business
as his own”; and (4) O’Day “consistently failed to file tax returns or pay tax[es] . . . over
the course of nearly a decade despite having received substantial income.” And the state
provided evidence that O’Day Transportation was registered with the Secretary of State in
2015, that O’Day did not renew the registration after it expired in 2016 but the business
kept operating, and that he comingled business and personal expenses. Drawing all
inferences in favor of the state, a jury could infer that O’Day’s conduct involved more than
a mere knowing failure to file tax returns and pay taxes, and that O’Day also acted to
conceal his business because he intended to evade his tax obligations.
We recognize, as the district court did, that this unique record contains fewer facts
suggesting a willful attempt to evade or defeat a tax obligation than were present in Beattie,
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one of the few appellate decisions involving the felony tax-evasion statute. In Beattie, a
tax professional requested information and documents necessary to file tax returns and
Beattie refused; the department of revenue notified Beattie of his failure to file returns and
pay taxes; and when an employee inquired about paying taxes, Beattie responded, “What
are they going to do, fine me?” 2014 WL 1660688, at *5. But Beattie involved a challenge
to the sufficiency of the evidence presented at trial, not probable cause. This distinction
makes a difference. “The standard for the sufficiency of the evidence to support a
conviction is much higher than probable cause.” State v. Holmberg, 527 N.W.2d 100, 103
(Minn. App. 1995), rev. denied (Minn. Mar. 21, 1995); see State ex rel. Hastings v. Bailey,
116 N.W.2d 548, 551 (Minn. 1962) (stating at a preliminary hearing “[i]t is not necessary
for the state to prove the defendant’s guilt beyond a reasonable doubt”). Bearing in mind
that this case involves a probable-cause challenge, and viewing the record and all
reasonable inferences in favor of the state, we conclude that the facts “present a fact
question for the jury’s determination.” Lopez, 778 N.W.2d at 704 (quotation omitted). The
district court erred by dismissing the charges against O’Day for lack of probable cause.
DECISION
To prove felony tax evasion under Minn. Stat. § 289A.63, subd. 1, the state must
prove the defendant was obligated to file a tax return or pay taxes due, did not satisfy their
tax obligation, and failed to do so with the purpose to evade or defeat their tax obligation .
The state does not need to prove an additional evasive act. From the facts alleged in this
record, a jury could infer that O’Day failed to satisfy his tax obligations with the purpose
14
to evade or defeat them. Accordingly, the district court erred by granting O’Day’s pretrial
motion to dismiss the charges for lack of probable cause.
Reversed and remanded.