                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1632
                                Filed August 5, 2015


TERRY HOUSTON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Clinton County, Paul L. Macek,

Judge.



       Terry Houston appeals from the denial of his application for postconviction

relief. AFFIRMED.




       Les M. Blair III and Taryn R. Purcell of Blair and Fitzsimmons, P.C.,

Dubuque, for appellant.

       Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Mike Wolf, County Attorney, and Robin L. Strausser, Assistant County

Attorney, for appellee State.




       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.

          A jury found Terry Houston guilty of operating a motor vehicle while

intoxicated (OWI).      Houston appealed.       This court affirmed his conviction.

Houston then filed an application for postconviction relief (PCR) asserting his trial

counsel was ineffective in failing to raise and assert an involuntary-intoxication

defense.1 The PCR court denied Houston’s application. Houston appeals. We

affirm.

I.        Background Facts and Procedure

          Houston was charged with an aggravated misdemeanor—operating a

motor vehicle while under the influence of an alcoholic beverage or other drug,

second offense, in violation of Iowa Code section 321J.2(1)(a) and (2)(b) (2011).

The background facts were succinctly set forth in our previous opinion as follows:

          At trial, the officer who conducted a traffic stop because Houston
          was going forty-nine miles per hour in a thirty-five-mile-per-hour
          zone testified Houston’s breath smelled of alcohol and that Houston
          subsequently failed several field sobriety tests. Houston testified
          that he drank one cup of coffee with cherry brandy over several
          hours while working with Berryman’s Carburetor Cleaner in an
          enclosed space. Houston testified he “found this out later . . .
          [Berryman’s] do[es]n’t use chlorinated solvents anymore, because
          of the chemical reactions that people have.” The defense had
          retained an expert witness, who was flown in from Maryland to
          testify. The record does not indicate why the expert was not called
          to testify. Defense counsel argued Houston was not intoxicated.
          The jury returned a guilty verdict.



1
   “Four different kinds of involuntary intoxication have been recognized: Coerced
intoxication, pathological intoxication, intoxication by innocent mistake, and unexpected
intoxication resulting from the ingestion of a medically prescribed drug.” City of
Minneapolis v. Altimus, 238 N.W.2d 851, 856 (Minn. 1976). “Involuntary intoxication
may . . . occur when intoxication results from an innocent mistake by the defendant
about the character of the substance taken, as when another person has tricked him into
taking the liquor or drugs.” Id. Houston opines, “Of importance here is intoxication by
innocent mistake.”
                                            3

State v. Houston, No. 11-1679, 2012 WL 4901400, at *1 (Iowa Ct. App. Oct. 17,

2012). Houston appealed, contending in part his trial counsel was ineffective in

failing to file a notice of an involuntary-intoxication defense,2 request a jury

instruction on involuntary intoxication, and call an expert witness to testify in

support of that defense. See id. Finding the record insufficient to address the

ineffectiveness-of-counsel issue, this court preserved it for possible PCR

proceedings. Id.

       In December 2012, Houston filed a pro se PCR application. His amended

application, filed in September 2014, raised the same ineffective-assistance-of-

counsel allegations he previously raised in his direct appeal. In a thorough and

well-reasoned ruling, the PCR court denied Houston’s application. Houston now

appeals.

II.    Standard of Review

       We review ineffective-assistance-of-counsel claims de novo.                   See

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). To succeed on such a

claim, Houston must prove both that (1) his counsel failed to perform an essential

duty, and (2) he suffered prejudice as a result of his counsel’s failure. See id.

III.   Discussion

       To address Houston’s ineffective-assistance-of-counsel claim, we begin

by considering if the claim would have been meritorious had it been raised by

trial counsel, because counsel does not provide ineffective assistance if the

underlying claim is meritless. See State v. Halverson, 857 N.W.2d 632, 635

2
  Iowa Rule of Criminal Procedure 2.11(11)(c) provides: “If defendant intends to rely
upon the defense of intoxication by drugs or alcohol . . . the defendant shall, within the
time for filing pretrial motions, file written notice of such intention.”
                                          4


(Iowa 2015). In other words, counsel has no duty to engage in an exercise in

futility. “If, however, an underlying claim has merit, we must determine whether

the failure to make the claim amounted to a breach of duty and whether the

defendant was prejudiced by the breach.” Id.; see also Strickland v. Washington,

466 U.S. 668, 687 (1984).

       Houston recognizes our supreme court has not determined whether the

affirmative defense of involuntary intoxication is a complete defense. State v.

Marin, 788 N.W.2d 833, 837 (Iowa 2010) (“We have never decided if a defendant

can use involuntary intoxication as a complete defense.”).         Nevertheless, he

asserts his trial counsel was ineffective in failing to raise the defense in his case.

He asserts the defense has been recognized in a number of other states and

infers the defense should be recognized in Iowa.

       Where the law is unsettled, the test to determine whether counsel is

required to raise an issue “is whether a normally competent attorney would have

concluded that the question . . . was not worth raising.” Millam v. State, 745

N.W.2d 719, 722 (Iowa 2008) (internal quotation marks omitted). This test does

not require an attorney to be clairvoyant, but rather to research the relevant legal

issues and determine whether, given the circumstances of the particular case,

the issue is “worth raising.” See id. In this case, even if the issue of involuntary

intoxication as a complete defense could be considered “unsettled,” we conclude

a normally competent attorney would have concluded the issue was not worth

raising.
                                         5


       The intoxication defense generally applies only to crimes that have a

specific intent element. Iowa Code section 701.5, which does not distinguish

between voluntary and involuntary intoxication, provides:

               The fact that a person is under the influence of intoxicants or
       drugs neither excuses the person’s act nor aggravates the person’s
       guilt, but may be shown where it is relevant in proving the person’s
       specific intent or recklessness at the time of the person’s alleged
       criminal act or in proving any element of the public offense with
       which the person is charged.

“[I]f intoxication negates the specific-intent element of a crime, the offender can

only be found guilty of a lesser included offense consisting of the act without the

intent.” State v. Guerrero Cordero, 861 N.W.2d 253, 259 (Iowa 2015). Specific

intent requires a person to be aware of doing an act and doing it with a specific

purpose in mind. State v. Rinehart, 283 N.W.2d 319, 320-21 (Iowa 1979); Iowa

Crim. Jury Inst. 200.2.

       Iowa Code section 321J.2(1)(a) provides, in part: “A person commits the

offense of operating while intoxicated if the person operates a motor vehicle in

this state [w]hile under the influence of an alcoholic beverage or other drug or a

combination of such substances.” The crime of operating a motor vehicle while

intoxicated is a “general intent crime,” not a specific intent crime.       State v.

Connor, 377 N.W.2d 664, 667 (Iowa Ct. App. 1985).            Accordingly, a section

701.5 intoxication defense has no application to an OWI offense.

       Iowa does recognize a circumscribed intoxication defense to OWI: the

prescription drug defense. Section 321J.2(11)(a) provides:

              This section does not apply to a person operating a motor
       vehicle while under the influence of a drug if the substance was
       prescribed for the person and was taken under the prescription and
                                          6


       in accordance with the directions of a medical practitioner . . . if
       there is no evidence of the consumption of alcohol . . . .

An operator of a vehicle cannot be convicted of OWI under the influence of a

drug if the operator is taking the drug as prescribed. See State v. Schories, 827

N.W.2d 659, 660 (Iowa 2013). This defense has no applicability to Houston; the

carburetor cleaner he was using is not a prescribed drug.             Additionally, the

defense is not available if there is satisfactory proof of the use of any quantity of

alcohol. State v. Wolfe, 369 N.W.2d 458, 460 (Iowa Ct. App. 1985). Here,

Houston admitted drinking cherry brandy before driving. So, even if this defense

could be employed in this case through application of some bizarre form of

statutory construction, it would still be of no benefit to Houston.

       Our legislature has spoken. It has addressed the subject of intoxicants or

drugs in Iowa Code section 701.5. It has expressed the view that these agents

are relevant to specific intent but do not generally excuse the person’s acts.

Furthermore, its section 321J.2(11)(a) prescription drug defense is limited. To

the extent that Houston is suggesting his trial counsel should have asked for

something more—i.e., ask for the court to recognize an additional involuntary-

intoxication defense that is not a part of Iowa statutory criminal law (or part of the

common law for that matter)—we believe this substantially exceeds the

boundaries established by the legislature.       See Altimus, 238 N.W.2d at 858

(declining to recognize a separate involuntary intoxication defense apart from the

insanity defense enacted by the legislature).

       Under the circumstances presented, a normally competent attorney would

have concluded the issue was not worth raising. Houston’s counsel had no duty
                                        7


to pursue a meritless issue. Therefore, Houston has not established his trial

counsel was ineffective in failing to raise or assert the involuntary intoxication

defense. Houston’s ineffective-assistance-of-counsel claim fails. See Halverson,

857 N.W.2d at 635.

IV.    Conclusion

       Upon consideration of the issues raised on appeal, and for the above-

stated reasons, we affirm the district court’s denial of Houston’s application for

postconviction relief.

       AFFIRMED.

       Vaitheswaran, J., concurs; Danilson, C.J., concurs specially.
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DANILSON, C.J. (concurring specially)

         I concur specially as I agree with the result reached by the majority but for

a different reason. Our supreme court has concluded, “[W]e will not reverse

where counsel has made a reasonable decision concerning trial tactics and

strategy, even if such judgments ultimately fail.” Brewer v. State, 444 N.W.2d 77,

83 (Iowa 1989). Here, defense counsel had a reasonable trial strategy to defend,

claiming the State failed to prove intoxication. The fact that the defense failed or

another defense could have been presented does not establish ineffective

assistance of counsel.      See State v. Ondayog, 722 N.W.2d 778, 786 (Iowa

2006).
