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.
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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 
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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 
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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 
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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 diminishedcapacity 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.
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We affirm the denial of Troupe’s PCR application.

AFFIRMED.