Friday, December 02, 2005
Nebraska Supreme Court (J.Wright) affirms conviction for sales tax evasion Court could receive evidence of Department of Revenue tax regulations and recite them in the jurors' instructionsState v. Grosshans, 270 Neb. 660 December 2, 2005. No. S-04-1370 Grosshans was charged by information in York County with two counts of willfully attempting to avoid sales tax, a Class IV felony, in violation of Neb. Rev. Stat. § 77-2713(1) (Reissue 1996). The first count related to a motorcycle purchased in 2003, and the second count related to a Chevrolet Corvette purchased in 2001. The jury found Grosshans guilty of count I and not guilty of count II. Defendant contends the court should not receive the regulations over his hearsay, confrontation objections, and it appears a "bill of attainder" objectionGrosshans claims the district court erred in admitting into evidence a certified copy of 316 Neb. Admin. Code, ch. 1, § 020 (1998), the sales and use tax regulations of the Department of Revenue. Although the regulations were received in evidence and used as the basis for some of the jury instructions, they were not given to the jury during its deliberation. The regulations were certified by Nebraska's Secretary of State as having been adopted by the Department of Revenue and approved by the offices of the Attorney General and the Governor. Agency regulations properly adopted and filed with the Secretary of State of Nebraska have the effect of statutory law. Lariat Club v. Nebraska Liquor Control Comm., 267 Neb. 179, 673 N.W.2d 29 (2004) Neb. Rev. Stat. § 77-369 (Reissue 2003).We conclude there was no abuse of discretion in the district court's receiving the regulations into evidence. Def also contended the evidence was insufficient to convict him of sale tax evasion§ 77-2713(1) The regulations and instructions incorporating them were proper evidence. The district court did not err by instructing the jury as to the content of the regulations. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. State v. Anderson, 269 Neb. 365, 693 N.W.2d 267 (2005). Grosshans has not demonstrated that he was prejudiced because of the instruction given by the court.
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