IN THE COURT OF APPEALS OF IOWA

No. 20-0166

Filed February 3, 2021

STATE OF IOWA,

Plaintiff-Appellee,

vs.

AUSTIN MICHAEL BRUCKNER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Tamra J. Roberts, 

Judge, (sentencing) and Phillip J. Tabor, District Associate Judge, (trial).

Austin Bruckner appeals his conviction for serious-misdemeanor eluding, 

claiming there was insufficient evidence to convict. AFFIRMED AND REMANDED 

FOR ENTRY OF NUNC PRO TUNC ORDER. 

Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant 

Attorney General, for appellee.

Considered by Bower, C.J., and Vaitheswaran and Greer, JJ. Tabor, J., 

takes no part.
2

GREER, Judge.

Austin Bruckner appeals his conviction for eluding, in violation of Iowa Code 

section 321.279(1) (2019). Bruckner was charged with driving while barred (count 

I) and eluding under section 321.279(2) (count II).

1 He took the case to a jury trial, 

and the jury acquitted Bruckner of driving while barred. As for count II, the jury 

found Bruckner guilty of the lesser included offense of eluding under 321.279(1).2 

On appeal, Bruckner asserts the jury lacked substantial evidence to convict 

him of eluding because the State failed to prove he “willfully” eluded under section 

321.279(1). Alternatively, he argues that if we find substantial evidence supports

the conviction, Bruckner challenges a defect in the sentencing order. Both parties 

agree the sentencing order incorrectly stated Bruckner was convicted of 

aggravated-misdemeanor eluding under section 321.279(2) rather than seriousmisdemeanor eluding under section 321.279(1). Bruckner asks his conviction be 

reversed and remanded for sentencing, while the State asserts an order nunc pro 

tunc is the appropriate remedy.

 

1

Iowa Code section 321.279(2) states:

The driver of a motor vehicle commits an aggravated misdemeanor 

if the driver willfully fails to bring the motor vehicle to a stop or 

otherwise eludes or attempts to elude a marked official law 

enforcement vehicle . . . driven by a uniformed peace officer after 

being given a visual and audible signal . . . and in doing so exceeds 

the speed limit by twenty-five miles per hour or more. 

2

Iowa Code section 321.279(1) is a serious misdemeanor offense for eluding and 

is a lesser included offense of 321.279(2). Unlike section 321.279(2), section 

321.279(1) does not contain an element that the driver exceeded the speed limit 

while willfully failing to stop or eluding. 
3

Factual Background and Proceedings. 

Deputy Clayton Rabe of the Clinton County Sheriff’s Department was 

driving westbound in a marked patrol car on the four-lane portion of Highway 30 

when he spotted a bright orange vehicle heading eastbound at a high rate of 

speed. Deputy Rabe activated the patrol car’s radar and clocked the vehicle at 

eighty-seven miles per hour (mph) in a sixty-five mph zone. As Deputy Rabe 

turned his vehicle to pursue, he again activated the radar and clocked the same 

vehicle at an increased speed of 111 mph. Deputy Rabe later explained: 

I start heading eastbound. I was picking up speed, and I could just 

barely see this orange vehicle. At the time I thought it was . . . an 

orange MINI Cooper style vehicle.[3] But it had its top down—had the 

convertible top down . . . it was so fast when it went past me. So I’m 

headed eastbound and the vehicle makes a very sharp left-hand turn 

to head north on South 54th Street which is gravel.

Now with his patrol lights on, Deputy Rabe followed the vehicle onto the gravel 

road, driving at speeds between fifty-five and sixty-five mph. By the time he turned 

onto the gravel road, Deputy Rabe estimated the vehicle was “probably an eighth 

to a quarter mile” ahead moving fast. Deputy Rabe activated his patrol car’s siren 

but was losing ground and could only see the dust trail left by the vehicle. After a 

minute or so into the chase, Deputy Rabe saw the vehicle turn right and head 

eastbound. The vehicle was now “a quarter to a half” mile ahead of the squad car.

After losing sight of the vehicle, Deputy Rabe continued to travel in what he 

believed was the general direction of the vehicle when he received a call from the 

dispatch center reporting that a vehicle had crashed. When he arrived on the crash 

scene, he encountered the driver—Bruckner—and a female passenger sitting on 

 

3

 Bruckner drove an orange Volkswagen Beetle with a convertible top.
4

a hillside near a private road. From photographs taken at the scene, it was 

apparent the vehicle skidded off the road and smashed into a tree located on a 

private property. Deputy Rabe asked Bruckner why he was speeding; Bruckner 

replied he “didn’t want to stop for the speeding ticket.” Bruckner was arrested and 

taken into custody for eluding. 

After providing the previous description of events at the jury trial, during 

cross-examination, Deputy Rabe confirmed he could not clearly see the vehicle 

after it turned onto the gravel road. Because he could not see Bruckner’s vehicle 

on the gravel road ahead of him due to the dust trail, Deputy Rabe admitted it was 

possible Bruckner may not have been able to see his marked patrol car pursuing 

him on that gravel road. 

At trial, Bruckner did not testify but did call one witness. Bruckner’s 

passenger, Taylor Wiersema, a family friend, testified for the defense. Wiersema

would sometimes hire Bruckner to take her places in his vehicle. Such was the 

case on the day of the incident. Bruckner was taking Wiersema to Clinton so she 

could sell baby clothes. Wiersema denied ever seeing a Clinton County squad car

as she rode with Bruckner heading eastbound on Highway 30 toward Clinton. She 

testified she was not surprised when Bruckner turned onto the gravel road because 

it was “[Bruckner’s] typical route.” As the passenger, Wiersema claimed she was 

not monitoring Bruckner’s speed. At no time did Wiersema admit seeing the squad 

car, seeing any emergency lights, or hearing any sirens. She established that 

Bruckner’s convertible had the top down and they were “blasting” loud music. 

When asked how the crash occurred, Wiersema said, “I just know that [Bruckner] 

said that there’s a cat, so he swerved and missed the cat.”
5

Following testimony from the State’s witnesses, Bruckner moved for a 

judgment of acquittal on both the driving-while-barred and eluding charges. The 

court denied the motions. After deliberations, the jury returned a verdict finding 

Bruckner not guilty of count I, driving while barred, but guilty of a lesser included 

eluding offense in count II under Iowa Code section 321.279(1). The court 

sentenced Bruckner to ninety days in jail with sixty days suspended, imposed a 

fine of $315, and placed him on probation for a period of one year.

Sufficiency of Evidence Claim.

To begin, Bruckner challenges his conviction, claiming the jury lacked 

sufficient evidence to find he willfully eluded police. At the close of the State’s 

case, Bruckner moved for a judgment of acquittal, alleging the State “has failed to 

prove their case with respect to driving while barred and eluding.” Bruckner did 

not target any specific grounds in the motion. 

“To preserve error on a claim of insufficient evidence for appellate review in 

a criminal case, the defendant must make a motion for judgment of acquittal at trial 

that identifies the specific grounds raised on appeal.” State v. Truesdell, 679 

N.W.2d 611, 615 (Iowa 2004) (citation omitted). “Error is not preserved on a 

sufficiency of the evidence claim where counsel has failed to make a motion for 

judgment of acquittal specifying the elements of the charge being challenged.” 

State v. Vansickle, No. 14-1991, 2016 WL 531066, at *1 (Iowa Ct. App. Feb. 10, 

2016) (citation omitted) (holding that a broad motion asserting failure to meet the 

prima facie case for any of the offenses failed to preserve error on the insufficient 

evidence claim that the defendant was not the driver). The State argues that 

Bruckner’s motion for judgment of acquittal did not specify what element of the 
6

eluding charge he was challenging, and, as a result, error was not preserved on 

his sufficiency of the evidence challenge. 

Bruckner claims error was preserved relying on an exception to our normal 

error preservation rules “when the record indicates the grounds for the motion were 

obvious and understood by the trial court and counsel.” State v. Williams, 695 

N.W.2d 24, 27 (2005). We agree with the State that Bruckner did not specifically

challenge the “willful” element of eluding in his motion for judgment of acquittal. 

And while we cannot say it was “obvious” and “understood” by the court that 

Bruckner was challenging the willful element of eluding in his motion, his case was 

built around the theory that Bruckner had no idea the deputy was in pursuit. So 

giving Bruckner the benefit of the doubt, we conclude error was preserved. Still, 

his sufficiency of the evidence claim fails on the merits. 

When presented with a motion for acquittal, the standard is to view the 

evidence in the light most favorable to the State drawing “all fair and reasonable 

inferences from it and taking all the evidence into consideration, both direct and 

circumstantial.” See State v. Schlitter, 881 N.W.2d 380, 389 (Iowa 2016) (citation 

omitted). The evidence must be sufficient to convince a rational fact finder that the 

defendant is guilty beyond a reasonable doubt. State v. Shanahan, 712 N.W.2d 

121, 134 (Iowa 2006). With those concepts in mind, a jury could find sufficient 

evidence to convict Bruckner of eluding under section 321.279(1). First, a jury 

could believe Deputy Rabe’s testimony that Bruckner admitted he knew the Deputy

Rabe was in pursuit and fled to avoid a speeding ticket. Next, Bruckner’s actions 

in substantially increasing his speed after the pursuit began and his sudden turn 

onto a gravel road support a finding he intended to elude. Finally, his route on the 
7

gravel road, which did not track the stated trip purpose, also could provide 

evidence of an attempt to elude the authorities. Although the passenger said she 

did not see or hear the deputy, there was no testimony about whether Bruckner

heard or saw the vehicle. Likewise, she was a family friend, and the jury was free 

to discount her credibility. See State v. Wilson, 878 N.W.2d 203, 217, n.7 (Iowa 

2016) (“When a defendant offers an alternate explanation for his or her evasive 

conduct, it is up to the jury to decide whether to credit it.”)

We find there was substantial evidence to support the conviction of eluding 

under 321.279(1). 

Sentencing Error.

On this final issue, there is some agreement. Both parties agree the 

sentencing order incorrectly stated Bruckner was convicted of aggravatedmisdemeanor eluding under Iowa Code section 321.279(2) rather than seriousmisdemeanor eluding under Iowa Code section 321.279(1). This mistake appears 

to have been a clerical error as the court only referenced the charge at sentencing 

as a serious misdemeanor. “An error is clerical in nature if it is not the product of 

judicial reasoning and determination.” State v. Hess, 533 N.W.2d 525, 527 (Iowa 

1995) (citation omitted). If a clerical error leads to an incorrect sentencing order, 

we review the matter for correction of errors at law. Id. 

Bruckner concedes that despite the error in the sentencing order, his 

sentence was based on the correct serious-misdemeanor charge. As Bruckner 

stated in his brief: “It does appear the court intended to impose the correct 

judgment, because the fine . . . aligns with a serious misdemeanor conviction.” Yet

he urges “the level of conviction should be corrected” by reversing his sentence 
8

and remanding for sentencing. Contrary to that plan, the State proposes we simply 

direct the trial court to enter a nunc pro tunc order correcting the Iowa Code section 

cited in the sentencing order.

The State’s proposal is the correct route and fosters judicial economy. 

“When the record unambiguously reflects that a clerical error has occurred, we will 

direct the district court to enter a nunc pro tunc order to the correct the judgment 

entry.” Id. Thus, we affirm Bruckner’s sentence and conviction for serious 

misdemeanor eluding and direct the district court to enter a nunc pro tunc order to 

correct the sentencing order to reflect the correct statute for serious-misdemeanor 

eluding on remand. 

AFFIRMED AND REMANDED FOR ENTRY OF NUNC PRO TUNC

ORDER.