                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0277
                               Filed March 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK ALAN TROUTMAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Mills County, James S.

Heckerman, Judge.



      Mark Troutman appeals from his conviction for murder in the first degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., Potterfield, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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MAHAN, Senior Judge.

       Mark Troutman shot and killed his ex-girlfriend after being unhappy with

how their relationship ended.     A jury found him guilty of murder in the first

degree. On appeal, Troutman contends the district court erred in overruling his

motion to strike a potential juror for cause, his counsel was ineffective, and his

conviction was against the weight of the evidence. Facts will be set forth below

as are relevant to the issues raised.

I.     Challenge for Cause

       Troutman claims the district court erred in overruling his motion to strike a

potential juror for cause. Iowa Rule of Criminal Procedure 2.18(5)(k) allows a

party to challenge a prospective juror if the juror “form[s] or expresse[s] such an

opinion as to the guilt or innocence of the defendant [that] would prevent the juror

from rendering a true verdict upon the evidence submitted on the trial.” The

district court is vested with broad discretion in ruling on a challenge for cause.

State v. Tillman, 514 N.W.2d 105, 107 (Iowa 1994).

       During voir dire, defense counsel moved to strike a number of jurors for

cause. The district court granted several motions by counsel but denied his

motions to strike Jurors A, B, C, and D. Juror D was ultimately struck by the

State’s use of a peremptory strike. Defense counsel used peremptory strikes to

remove Jurors A and B.       Neither side used a peremptory strike to remove

Juror C.   Counsel used all ten of Troutman’s peremptory strikes and did not

request additional strikes after he exhausted his peremptory challenges.
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Troutman contends the court erred in overruling counsel’s challenge to Juror C.1

He further claims, “Forcing trial counsel to eliminate jurors through the use of


1
  Defense counsel’s concern with Juror C was with regard to Troutman’s intoxication
defense. But we question whether the district court’s decision to overrule defense
counsel’s motion to strike Juror C was improper; discussion during voir dire appears to
support the court’s finding that Juror C had the ability to be fair and impartial on that
legal issue. But see State v. Jonas, 904 N.W.2d 566, 575 (Iowa 2017) (“Where a
potential juror initially repeatedly expresses actual bias against the defendant based on
race, ethnicity, sex, or sexual orientation, both in a pretrial questionnaire and in voir dire,
we do not believe the district court can rehabilitate the potential juror through persistent
questioning regarding whether the juror would follow instructions from the court.”).
        Defense counsel first broached the issue of intoxication with Juror C in this
exchange during voir dire:
                Q. Well, what if someone said that they—they were so intoxicated
        so that made it a different degree of guilt? Would you be able to buy
        something like that or does that matter to you? A. No.
                Q. No? A. No.
                Q. Never be able to go there? A. No.
                DEFENSE COUNSEL: Okay. I’d move for cause.
The following exchange then took place between the court and Juror C:
                COURT: Could—we’ve just kind of hit you blindsided on this thing
        but you don’t strike me as somebody that would take this lightly, that you
        know that this is a very serious responsibility that the jury would have.
        Intoxication has a defense—I mean, it has a definition. It’s not just drunk
        or not drunk. I mean, there’s more to it than that. And can you follow the
        law and that—the intoxication defense, can you read that and make a
        determination whether or not that applies to this case?
                JUROR C: Okay. So you’re saying that there’s an actual
        intoxication defense that lays it out?
                COURT: That defines it.
                JUROR C: Because I guess in my own mind I think you made the
        judgment call to be intoxicated so you have to take responsibility for your
        actions. However—
                COURT: See, that’s exactly what the definition addresses is those
        things. And so it can sort that out for you—
                JUROR C: So yes, okay.
                COURT: I mean, we’re just kind of—on one issue saying are you
        going to buy intoxication, no, then you’ve got to go. No, that isn’t what
        we’re trying to say. It’s just will you listen to the evidence submitted by
        the parties. The definition of murder in the first degree is set out in the
        instructions. The definition of all the—the lesser included offenses are
        included. The defenses that are available to Mr. Troutman are all set out
        and defined. Can you read those and—you’re not the first one that’s
        come in here and said intoxication, no way. It’s just—but can—it’s not a
        question of whether or not you like intoxication as a defense or not. It’s
        the law. Can you read that and decide based upon the—an impartial
        reading of that, knowing that’s the law, make a determination with respect
        to whether or not that applies in this case or does not apply in this case?
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peremptory strikes who should have been struck for cause resulted in structural

error in the proceedings . . . .”

       After the parties filed their briefs, the supreme court addressed the issue

of disqualification of jurors for cause in State v. Jonas, 904 N.W.2d 566, 576-85

(Iowa 2017). The court clarified Iowa’s view on the question of prejudice when

the court improperly refuses to disqualify a potential juror. Jonas, 904 N.W.2d at

583-84. Specifically, the court held:

       [I]n order to show prejudice when the district court improperly
       refuses to disqualify a potential juror under Iowa Rule of Criminal
       Procedure 2.18(5)(k) and thereby causes a defendant to expend a
       peremptory challenge under rule 2.18(9), the defendant must
       specifically ask the court for an additional strike of a particular juror
       after his peremptory challenges have been exhausted. Where the
       defendant makes such a showing, prejudice will then be presumed.

Id. at 583 (emphasis added) (footnote omitted). The court reasoned:

       This three-pronged approach discourages a defendant who is
       satisfied with a jury notwithstanding judicial error in failing to strike a
       potential juror for cause from engaging in a sandbagging approach
       of awaiting the results of a jury verdict before crying foul. It also
       tends to avoid another sandbagging scenario where the defense
       leaves an unqualified juror on the panel, awaits the verdict, and
       then appeals.[2]

Id. (emphasis added) (internal citation omitted).

       Here, Troutman exhausted his peremptory challenges but “did not identify

an additional juror who the defense sought to remove from the jury through the

exercise of an additional peremptory challenge.”           Id. at 584.     Accordingly,

prejudice from seating the challenged juror cannot be presumed and Troutman


               JUROR C: I think I can make a decision based on that.
In any event, for the reasons that follow, we need not decide whether the court erred in
denying defense counsel’s motion to strike Juror C in this case.
2
  This second “sandbagging scenario” imagined by the court is precisely what happened
in this case.
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“cannot succeed in this appeal.” Id.; see State v. Neuendorf, 509 N.W.2d 743,

746 (Iowa 1993) (“In the absence of some factual showing that this circumstance

resulted in a juror being seated who was not impartial, the existence of prejudice

is entirely speculative.”). We affirm on this issue.

II.    Inference Jury Instruction

       Troutman challenges the district court’s inference instruction to the jury: “If

a person has the opportunity to deliberate and uses a dangerous weapon against

another resulting in death, you may, but are not required to, infer that the weapon

was used with malice, premeditation, and specific intent to kill.”         Troutman

acknowledges, “The Iowa Supreme Court has approved use of inference

instructions under appropriate circumstances and has recognized that such

instructions are generally supported by Iowa law,” but he contends, “The

evidence presented at trial in the instant case did not support introduction of the

inference instruction.” He asserts his counsel was ineffective in failing to object

to the instruction. To prevail, Troutman must show (1) counsel breached an

essential duty and (2) prejudice resulted. See Strickland v. Washington, 466

U.S. 668, 687 (1984).        We review ineffective-assistance claims de novo.

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

       The supreme court recently addressed the malice-inference instruction in

State v. Green, 896 N.W.2d 770, 781 (Iowa 2017).              The court reaffirmed

longstanding precedent approving the malice-inference instruction, rejecting an

identical contention that the instruction was inappropriate under similar

circumstances.    See Green, 896 N.W.2d at 780-81 (observing the court has

“permitted the practice of instructing juries on inferences of malice from certain
                                          6


evidence since 1858”). While “[t]here may be circumstances where it would not

be appropriate to infer malice,” including where “the defendant had adequate

provocation or fear of imminent bodily harm to use the weapon,” as in Green, the

instruction was appropriate under the facts of this case; although Troutman did

not normally carry his gun and he did not have a holster for it, he brought the gun

to K.’s workplace and shot her in the head. See id. at 780 (noting court has

approved an inference instruction “when defendants discharged a firearm aimed

at a victim”). In short, counsel did not breach an essential duty in failing to

challenge the instruction. See State v. Crisp, No. 16-1252, 2017 WL 6033872, at

*2 (Iowa Ct. App. Dec. 6, 2017) (rejecting the same challenge to an inference

instruction based on the court’s holding in Green).

III.   Motion for New Trial

       Troutman further contends the district court abused its discretion in

denying his motion for new trial, claiming the weight of the evidence does not

support the jury’s finding that he committed murder in the first degree.

Specifically, Troutman claims, “The weight of the evidence produced at trial

points to the intent of [Troutman] to commit suicide in front of [K.],” “[t]here was

no threat of harming [K.],” and “[t]here was also substantial evidence [Troutman]

was intoxicated.”

       “We accord the district court ‘broad discretion in ruling on a motion for new

trial.’” State v. Neiderbach, 837 N.W.2d 180, 211 (Iowa 2013) (quoting State v.

Reeves, 670 N.W.2d 199, 202 (Iowa 2003)). “We reverse the district court only if

it has abused its discretion.” Id. “On a weight-of-the-evidence claim, appellate

review is limited to a review of the exercise of discretion by the trial court, not of
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the underlying question of whether the verdict is against the weight of the

evidence.”   Reeves, 670 N.W.2d at 203.          Upon our review of the evidence

presented, we find the court did not abuse its discretion in denying Troutman’s

motion for a new trial.

       The jury heard testimony and viewed exhibits that told a story of

Troutman’s anger after K. broke off their long-distance relationship and began

dating someone else.      Over several months, Troutman made harassing and

threatening comments to K. and her new boyfriend through text messages and

on social media. Troutman, who was from Ohio, returned to Iowa and drove by

K.’s workplace several times before the final time, when he slashed her tires and

shot and killed her in the parking lot. Troutman admitted he “once contemplated

a murder/suicide” scenario, but he also commented, “I couldn’t kill myself”; “I

killed her”; “I just couldn’t live with what she did. Knowing she didn’t want to be

with me”; “That’s why I did it . . . . I can’t live with that and neither should she.”

As the State correctly points out, “Even if Troutman had intended on killing

himself, the evidence shows he had the intent to kill [K.] as well.” It was the jury’s

role to weigh the evidence and arguments made by the parties; this case does

not present the unusual situation where there is reason to believe that critical

evidence was ignored in the jury’s fact-finding process.

       Upon consideration of the issues raised on appeal, we affirm Troutman’s

conviction for murder in the first degree.

       AFFIRMED.
