IN THE COURT OF APPEALS OF IOWA
No. 15-0678
Filed April 27, 2016
BRYAN KEITH TROUPE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Troupe appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
DOYLE, Judge.
Bryan Troupe was arrested, tried, and convicted of first-degree robbery in
connection with a 2010 robbery of a Dairy Queen in Windsor Heights. After the
direct appeal of his conviction was affirmed by this court, State v. Troupe, No. 11-
0354, 2013 WL 264324, at *3 (Iowa Ct. App. Jan. 24, 2013), Troupe filed an
application for postconviction relief (PCR), contending his trial counsel was
ineffective in, among other things, failing to adequately investigate the case and
present a diminished-capacity defense. He appeals the district court’s denial of
that application.
We review ineffective-assistance-of-counsel claims de novo. See Everett
v. State, 789 N.W.2d 151, 158 (Iowa 2010). In order to prove counsel was
ineffective, Troupe must show counsel failed to perform an essential duty and
that he was prejudiced as a result. See id. We measure counsel’s performance
by that of a reasonably competent practitioner and avoid second-guessing
reasonable trial strategy. See id. To establish prejudice, Troupe must show a
reasonable probability that the outcome would have been different had counsel
acted competently. See id.
In his PCR application, Troupe alleged his trial counsel was ineffective in
failing to present a diminished-capacity defense. The PCR court rejected this
claim, finding Troupe failed to prove that his trial counsel breached an essential
duty or that he was prejudiced by his trial counsel’s failure to present a
diminished-capacity defense. Specifically, the court noted that trial counsel
sought the opinion of a medical expert in determining what trial strategy to
pursue and that medical expert was unable to determine the viability of a
3
potential defense based on diminished capacity. As a result, the PCR court
concluded Troupe’s trial counsel was not ineffective in deciding not to pursue a
diminished-capacity defense.
On appeal, Troupe contends his trial counsel was ineffective in failing to
present a defense of “diminished capacity coupled with intoxication.” The
intoxication defense may be used to negate the element of specific intent for
offenses where specific intent is required. See Iowa Code § 701.5 (2009); State
v. Guerrero Cordero, 861 N.W.2d 253, 259 (Iowa 2015). First-degree robbery
requires specific intent to commit a theft. See Iowa Code §§ 711.1, .2. Theft is
defined as the taking possession or control of the property of another with the
intent to deprive the other thereof. See id. § 714.1; State v. Copenhaver, 844
N.W.2d 442, 448 (Iowa 2014).
Generally, a claim must be raised and decided below before it may be
decided on appeal. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).
Although Troupe’s PCR application raises an ineffective-assistance claim
concerning trial counsel’s failure to present a diminished-capacity defense, it
does not articulate any claim regarding counsel’s failure to present an
intoxication defense. Troupe’s PCR counsel did make inquiry about the
availability of an intoxication defense at the PCR hearing. However, the PCR
court’s ruling does not explicitly address an ineffective-assistance claim relating
to trial counsel’s failure to pursue an intoxication defense.
Even assuming his PCR counsel raised and the PCR court considered
counsel’s failure to present an intoxication defense in rejecting Troupe’s
diminished-capacity claim, we are unable to find counsel was ineffective. Trial
4
counsel consulted with a psychiatrist in advance of trial in order to discern
whether an intoxication defense was viable. The expert’s report states that while
it “seems likely [Troupe] was probably abusing heroin and methadone” around
the time of the robbery and had no memory of the robbery itself, Troupe was able
to recall events before and after the robbery. The expert opined “there is
insufficient evidence for diminished capacity” within a reasonable degree of
medical certainty. As the PCR court noted, trial counsel’s decision to pursue a
misidentification defense rather than an intoxication defense was reasonable trial
strategy, especially in light of the lack of expert witnesses to corroborate such a
defense.
Furthermore, the testimony at trial did not support an intoxication defense.
Intent may be inferred from the defendant’s actions and the circumstances of the
transaction. See State v. Keeton, 710 N.W.2d 531, 534 (Iowa 2006). Here, the
cashier at the Dairy Queen testified that Troupe told her three times to open the
register. The third time, Troupe added, “I’m not playing,” and pulled out a knife.
Once the cashier gave him the money, Troupe left the store. He used the money
to purchase heroin and methadone. From Troupe’s actions and the
circumstances of the robbery, one can infer Troupe had an intent to commit a
theft. See State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000) (“An intent to
commit theft may be inferred from an actual breaking and entering of a building
which contains things of value.”); State v. Goode, No. 13-1028, 2014 WL
3511816, at *5 (Iowa Ct. App. July 16, 2014) (concluding that even if the
defendant had no intent to commit a theft at the start of an assault, intent could
5
be inferred once the defendant remarked, “[O]h you have no money, huh,” took
the victim’s wallet, and continued the assault).
Troupe also contends his trial counsel was ineffective in failing to confer
with him, investigate, or interview witnesses. Specifically, Troupe complains his
trial counsel failed to meet with him in person at the jail, interview those who
knew Troupe—including his ex-wife or doctors—to determine the validity of any
intoxication or diminished-capacity defense, ask any witnesses about his mental
status or level of intoxication at the time of the robbery, and provide all of his
medical records to the expert.
Troupe is unable to show a breach of duty. Trial counsel testified at the
PCR hearing that although she was unable to recall how many times she met
with Troupe, she met with him and discussed the viability of a diminished-
capacity defense and answered his questions. Counsel also investigated the
viability of a diminished-capacity and intoxication defense by consulting with an
expert, and it was determined a diminished-capacity defense was unavailable.
Counsel testified at the PCR hearing that once the expert determined there was
insufficient evidence to support a diminished-capacity defense, she believed that
continuing to pursue it would push ethical boundaries.
Furthermore, for the reasons stated above, Troupe cannot show a
reasonable probability the result would have been different had his trial counsel
performed as he wishes. In light of the evidence of Troupe’s conduct at the time
of the robbery, there is no reasonable likelihood the jury would have found he
was unable to form a specific intent to rob the Dairy Queen. Accordingly,
counsel was not ineffective.
6
We affirm the denial of Troupe’s PCR application.
AFFIRMED.