State of Iowa v. Kim Tielebein

IN THE COURT OF APPEALS OF IOWA

No. 21-0352
Filed March 2, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KIM TIELEBEIN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Buchanan County, Kelly M. Lekar,

Judge.

Kim Tielebein appeals from his conviction and the court costs assessed in

his sentencing order. CONVICTION AFFIRMED; SENTENCE AFFIRMED IN

PART AND REMANDED.

Martha J. Lucey, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ.
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GREER, Judge.

Kim Tielebein appeals from his conviction of eluding or attempting to elude

a law enforcement vehicle, enhanced as a habitual offender, in violation of Iowa

Code section 321.279(2)(b) (2020).1 He argues there was insufficient evidence to

support the findings that he reached a speed of more than twenty-five miles per

hour (mph) in excess of the speed limit. He also challenges the sentence imposed

ordering him to pay court fees for dismissed misdemeanor traffic violations.

Background Facts and Proceedings.

On November 5, 2020, Jemini Tielebein called 911 to report her father, who

she identified as Kim Tielebein, had driven off in a black Trailblazer while “all high”

on methamphetamines. She confirmed he did not have a valid driver’s license.

After learning about the general direction he headed, two Buchanan County

deputies, Deputy Matthew Cook and Sergeant Chris Chesmore, separately began

pursuit. Sergeant Chesmore located the vehicle, pulled up next to it at an

intersection, and identified the driver as Tielebein. Once he identified Tielebein,

Sergeant Chesmore yelled, “Kim stop” and turned on his emergency lights.

Tielebein did not stop, and Chesmore initiated his siren. Sergeant Chesmore

began pursuing Tielebein on a gravel road with a fifty-five mph speed limit. Driving

erratically, Tielebein reached speeds of sixty-two mph on the gravel road and

drove through several stop signs. On the paved roads, the deputies, now in

1The jury also found Tielebein guilty of operating while intoxicated (OWI), second
offense, but he does not appeal from that conviction. The district court sentenced
Tielebein to two years in prison on the OWI conviction and fifteen years on the
eluding conviction, with the two sentences running consecutive to each other but
concurrent to a sentence involving a separate parole revocation case.
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tandem, began “pacing” or maintaining a steady distance between the vehicles.

At times, they exceeded a speed of eighty mph. The front camera on Deputy

Cook’s vehicle recorded the speeds and reflected a top speed of ninety-two mph

in the fifty-five mph zone. The pursuit continued on paved roads until stop sticks

deflated the vehicle’s tires.

Tielebein was tried for OWI and eluding at a jury trial in February 2021.

Some of the evidence about the vehicle speeds was offered without objection,

including the video from Deputy Cook’s vehicle that referenced the speed he was

traveling during the pacing activity. Tielebein objected twice to Sergeant

Chesmore’s testimony about the speeds traveled by simply stating “foundation.”

The district court overruled those objections.

After all the evidence was presented, Tielebein moved for a directed verdict,

arguing the State failed to prove that Tielebein had exceeded the speed limit by

twenty-five mph or more and that the State lacked the necessary foundation to

prove the speeds. The court denied the motion. Tielebein did not present any

evidence in his defense.

After deliberations, the jury found Tielebein guilty of both charges. After

sentencing, Tielebein timely appealed.

Standard of Review.

“We review challenges to the sufficiency of the evidence for correction of

errors at law.” State v. Veal, 930 N.W.2d 319, 328 (Iowa 2019). “Inherent in our

standard of review of jury verdicts in criminal cases is the recognition that the jury

was free to reject certain evidence, and credit other evidence.” State v. Button,

622 N.W.2d 480, 483 (Iowa 2001) (citation omitted). “Consequently, where the
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record contains substantial evidence, ‘we are bound by the jury’s finding of guilt.’”

Id. (citation omitted).

Insofar as Tielebein preserved a challenge to the admission of specific

evidence, we review the court’s evidentiary rulings for an abuse of discretion. See

State v. Rodriguez, 636 N.W.2d 234, 239 (Iowa 2001).

“We review the district court's restitution order for errors of law.” State v.

Petrie, 478 N.W.2d 620, 622 (Iowa 1991). We seek to “determine whether the

court’s findings lack substantial evidentiary support, or whether the court has not

properly applied the law.” State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).

Analysis.

A. Was There Sufficient Proof of Tielebein’s Speed to Support an

Eluding Charge?

Tielebein argues the district court abused its discretion in overruling

foundational objections and erred in denying his motion for judgment of acquittal2

because there was insufficient evidence about his speed. More specifically, he

contends there was a “lack of proof that the speedometers in the squad cars, driven

by Chesmore and Cook, had ever been calibrated and the fact that there was no

testimony that either had been trained in the technique of pacing while in pursuit

of another vehicle.” To prove the eluding charge, the jury instructions required the

State to show:

1. On or about the 5th day of November, 2020, Mr. Tielebein
was driving a motor vehicle.

2Technically, Tielebein moved for directed verdict. “For purposes of this appeal
we will treat [Tielebein’s] motion for directed verdict as a motion for judgment of
acquittal.” State v. Adney, 639 N.W.2d 246, 249 n.2 (Iowa Ct. App. 2001).
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2. Mr. Tielebein willfully failed to bring the motor vehicle to a
stop or otherwise eluded or attempted to elude a marked official law
enforcement vehicle driven by a uniformed peace officer after being
given a visual and audible signal to stop.
3. In doing so Mr. Tielebein exceeded the speed limit by
twenty-five [mph] or more.

See State v. Canal, 773 N.W.2d 528, 530 (stating the jury instructions become the

“law of the case” when there is no objection). To meet this burden, the State

presented testimony from two law enforcement officers on Tielebein’s excessive

speeds as he tried to drive away from the officers. To counter that proof, Tielebein

complains the State failed to establish the necessary foundation to opine on his

speed. To allow this testimony, Tielebein contends the State had to show the

speedometers of the officers’ vehicles were calibrated, or at a minimum, the

deputies were trained to employ the pacing technique they used to determine the

speeds. Rather than using radar to pin down Tielebein’s speeds, the deputies

used a pacing technique. Sergeant Chesmore explained:

Q. Okay. When you’re following the vehicle in the way that
you’re talking about, how are you determining—are you using your
radar, or how are you determining how fast the vehicle[ is] going?
A. I’m pacing him with my speedometer.
Q. What does that mean? A. I’m looking at my speedometer
to determine how fast I am going and whether or not I’m catching up
to him, not catching up to him.
Q. Okay, and is that something you’ve learned through your
training and also just in your work as a deputy? A. It is.
Q. So when you’re talking about speeds, you’re talking about
comparing your speed with the distance between the vehicles, and if
you’re gaining or losing ground? A. Yes.
....
Q. What’s the speed limit? A. Fifty-five.
....
Q. Okay. What were the speeds like on the paved roadway?
A. For the majority of the time, there was 80, and at—towards the
very end of the chase—
DEFENDANT: Objection. Renewed objection to foundation.
THE COURT: Overruled.
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A. Towards the very end of the chase, it—we topped at 92
miles per hour.
....
Q. Okay, so when you’re hitting speeds of 80, up to 90 or 92,
it’s a 55-mile-per-hour zone? A. That is correct.
Q. And again, you’re not alleging that you were using your
radar while chasing this vehicle, you were pacing the vehicle based
on your experienced using what you’re going and if you’re able to
catch up or falling behind; is that correct? A. That’s correct.
....
Q. Okay, and I’m going to back you up a little bit back before
the crash when you were talking about higher speeds, that, at some
point being, I think, 90 or 92 miles an hour. At that point, was that
when you were attempting to catch up, or was that the steady speed
between you and the vehicle in front of you? A. That was the steady
speed.
Q. So it wasn’t like you got behind and the only reason you
were going that fast was to catch up? A. You’re—that’s correct.

We first note that “[p]acing has been determined to be an adequate procedure for

determining speed.” State v. Sorenson, No. 14-1101, 2016 WL 718984, at *2

(Iowa Ct. App. Feb. 24, 2016) (citing State v. Bedwell, 417 N.W.2d 66, 70 (Iowa

2006)). In Sorenson, the officer testified that his speedometer had not been

calibrated, but the court found the pacing to be reliable. Id.

Beyond the pacing proof and to further bolster its case, the State offered

video evidence showing that the in-car cameras captured speeds as the deputies

followed Tielebein on a chase. Those videos were admitted as evidence without

objection.3 Each deputy testified to their training and experience in the pacing

technique. And Deputy Cook confirmed his speedometer was calibrated.

Tielebein presented no evidence to dispute these statements. And while Tielebein

objected on foundation grounds, he only now, on appeal, identifies the specifics

3 In the video from Deputy Cook’s vehicle, a jury could conclude that the pacing
was consistent and that the speeds displayed on the screen, at times, exceeded
ninety mph.
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underlying the foundation objection. See 7 Laurie Kratky Doré, Iowa Practice

Series: Evidence § 5.103:4 (November 2021 update) (“Challenges to evidence on

foundational grounds must specify the particulars in which the foundation is

lacking; the objection ‘no proper foundation’ is insufficient.”). Because Tielebein

failed to properly raise a foundational challenge to the evidence, we need not

review the district court’s decision to admit it.

Between the deputies’ testimony and the video evidence of the car chase,

substantial evidence supports that Tielebein reached speeds of more than twenty-

five mph over the speed limit.

Still, even if the foundation objection had the requisite detail, Tielebein could

not prevail on this issue. “Evidence is substantial if it would convince a rational

fact finder that the defendant is guilty beyond a reasonable doubt.” State v. Biddle,

652 N.W.2d 191, 197 (Iowa 2002). “We review the evidence in the light most

favorable to the State, including legitimate inferences and presumptions that may

fairly and reasonably be deduced from the record evidence.” Id. Under this rubric,

we find substantial evidence that Tielebein traveled in excess of twenty-five mph

as he eluded the deputies on the chase. We affirm the conviction. We now turn

to the sentencing issue.

B. Was Ordering Payment of Costs on Dismissed Charges an Error?

After the verdicts on the OWI and the eluding charges, Tielebein pled guilty

to the enhancements as a habitual offender. During the record made on the guilty

plea, the district court inquired if there was any agreement between the State and

Tielebein over the enhancement plea agreement. None was formulated, so the

parties said no. At the sentencing hearing, the State dismissed four other
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companion simple misdemeanor cases involving traffic violations. The district

court further ordered that Tielebein was without the ability to pay category “B”

restitution.4 In the sentencing order, the court noted:

Upon the recommendation of the State and/or under the terms of the
plea agreement and/or by reason of acquittal, the following
counts/cases are dismissed: STA0072915, STA0072916,
STA0072917, STA0072918. Defendant is ordered to pay court costs
on these counts/cases.[5] Pursuant to the plea agreement, if
restitution is due on any of these counts/cases, the Defendant is
ordered to pay such restitution.

(Emphasis added.)

Tielebein appeals the sentencing order requiring him to pay these costs.

“We acknowledge that a sentencing order that imposes an obligation on a

defendant to pay court costs not authorized by law would be illegal.” State v.

McMurry, 925 N.W.2d 592, 596 (Iowa 2019). Tielebein argues the requirement to

pay the court costs for the dismissed charges is an illegal sentence because the

district court found he did not have the reasonable ability to pay courts costs. He

also maintains that because the district court incorrectly referenced a plea

agreement that required his payment of restitution, the sentence should be

4 Iowa Code section 910.1(2) defines “[c]ategory ‘B’ restitution” to mean:
the contribution of funds to a local anticrime organization which
provided assistance to law enforcement in an offender’s case, the
payment of crime victim compensation program reimbursements,
payment of restitution to public agencies pursuant to section 321J.2,
subsection 13, paragraph “b”, court costs, court-appointed attorney
fees ordered pursuant to section 815.9, including the expense of a
public defender, and payment to the medical assistance program
pursuant to chapter 249A for expenditures paid on behalf of the
victim resulting from the offender's criminal activities including
investigative costs incurred by the Medicaid fraud control unit
pursuant to section 249A.50.
5 The State notes that only case STA0072918 has court costs assessed, and court

records show no costs assessed for the other three traffic charges.
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vacated. See State v. Ackiss, No. 18-1787, 2019 WL 4678184, at *2 (Iowa Ct.

App. Sept. 25, 2019) (finding that where the order referenced payment of court

costs under a non-existent plea agreement, the order should be corrected and the

case remanded for a corrected order on the court costs). The State concedes that

if we reach the merits of Tielebein’s claim,6 the sentence is illegal and the case

should be remanded for an order removing the court cost payment obligation from

the order. See McMurry, 925 N.W.2d at 596; State v. Davis, No. 19-0453, 2020

WL 7868118, at *11 (Iowa Ct. App. Dec. 16, 2020) (remanding to remove the court

cost assessment from the sentencing order where the court had determined the

defendant had no reasonable ability to pay).

We agree with this course and remand to the district court for the limited

purpose of correcting the sentencing order by removing the court-cost obligation.

Disposition.

We find substantial evidence supported Tielebein’s conviction for eluding or

attempting to elude a law enforcement vehicle. On Tielebein’s claim over the court

costs assessed on charges dismissed, we remand to the district court for an order

6 The State maintains that Tielebein could not appeal the simple misdemeanor
claims and in any event did not preserve error, but we choose to proceed to the
merits of the issue because his appeal is over the sentencing order in the case at
hand. See State v. Abbasi, No. 14-1576, 2015 WL 4935705, at *2 (Iowa Ct. App.
Aug. 19, 2015) (“Because the costs for [the dismissed simple misdemeanor case]
were assessed through the sentencing order in [the serious misdemeanor case]
and we may consider the claim of an illegal sentence at any time, we find this issue
is properly before the court.” (citing Iowa R. Crim. P. 2.24(5)(a)).
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correcting the sentencing order and removing the payment requirement for the

category “B” costs.

CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART AND

REMANDED.