                    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.
