Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
The opinion of the court was delivered by: Mahan, S.J.
Defendant appeals his conviction for robbery in the first degree. AFFIRMED.
Considered by Potterfield, P.J., Danilson, J., and Mahan, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
I. Background Facts & Proceedings.
In the afternoon on August 15, 2010, two teenagers, Jennifer Jensen and Morgan Chicchelly, were working at a Dairy Queen in Windsor Heights, Iowa. Chicchelly noticed a man standing outside staring into the store. A little later she again saw him looking into the store. He then sat down on a bench outside the door. The man was wearing a striped shirt. After Chicchelly finished helping some customers she went into the back room as part of her duties.
The man entered the store when no other customers were present, and Jensen helped him at the counter. He told Jensen, "Open the register," but due to shock she did not respond. He stated again, "Open the register." Jensen saw he had "a bigger knife" he was waving around. He stated, "I'm not playing. Open the register." Jensen opened the cash register, and the man grabbed about $200 to $300 then ran out of the store. Jensen noted he was wearing, "a short-sleeved, button-up striped shirt with red and green and tan stripes."
Jensen called out to Chicchelly, who called 911. Police officers arrived a few minutes later. They were able to retrieve surveillance video from the Dairy Queen, and a picture of the robber from the surveillance video was broadcast on the local news that evening. David Jorgensen recognized the robber from a tattoo on his arm and the shirt he was wearing. Jorgensen called Crime Stoppers and identified the man as Bryan Troupe.
Police officers assembled a photographic array of six photographs to show Jensen. Jensen identified the picture of Troupe, stating she was 100% sure of the identification. Officers then went to Troupe's home. Hanging on a doorknob in the kitchen was a shirt very similar to the shirt seen in the surveillance video. Additionally, Troupe had a tattoo on his arm like that seen in the video.
Troupe was charged with first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2 (2009). Evidence was presented during the jury trial as outlined above. Both Jensen and Chicchelly identified Troupe in the courtroom as the person they had seen at the Dairy Queen that day. The jury found Troupe guilty of first-degree robbery. He was sentenced to a term of imprisonment not to exceed twenty-five years. Troupe appeals, claiming he received ineffective assistance of counsel.
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied applicant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008). "In determining whether an attorney failed in performance of an essential duty, we avoid second-guessing reasonable trial strategy." Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). In order to show prejudice, a defendant must show that, but for counsel's breach of duty, the result of the proceeding would have been different. State v. Brubaker, 805 N.W.2d 164, 174 (Iowa 2011).
III. Ineffective Assistance.
A. Troupe was charged with robbery "while armed with a dangerous weapon, to wit: a knife." See Iowa Code § 711.2 (providing one alternative means of committing first-degree robbery is robbery while "armed with a dangerous weapon"). The ...