               IN THE SUPREME COURT OF IOWA
                              No. 13–1113

                          Filed January 9, 2015


STATE OF IOWA,

      Appellee,

vs.

JILLIAN JANE STEWART,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County,

James D. Scott, Judge.



      Defendant seeks further review of a court of appeals decision

affirming her conviction and holding the offense of possession of a

controlled substance does not merge with the offense of introduction of a

controlled substance into a detention facility. DECISION OF COURT OF
APPEALS AFFIRMED; DISTRICT COURT JUDGMENT AFFIRMED IN

PART, REVERSED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant

Attorney General, Patrick Jennings, County Attorney, and Amy Klocke,

Assistant County Attorney, for appellee.
                                        2

APPEL, Justice.

      In this case, we consider whether the offense of possession of a

controlled substance merges with the offense of introduction of a

controlled substance into a detention facility by operation of Iowa’s

merger statute and principles of double jeopardy.         For the reasons

expressed below, we conclude the crimes do not merge and may be

simultaneously charged in one criminal prosecution. We therefore affirm

the decision of the court of appeals.

      I. Background Facts and Proceedings.

      As this case raises purely legal issues, the facts need not be recited

in detail.   Jillian Stewart was arrested by Sioux City police.    She was

subsequently charged with possession of a controlled substance in

violation of Iowa Code section 124.401(5) (2011), introduction of a

controlled substance into a detention facility in violation of Iowa Code

section 719.8, and unlawful possession of a prescription drug in violation

of Iowa Code section 155A.21(1). The State dismissed the possession-of-

a-prescription-drug offense prior to trial. After a jury trial, Stewart was

convicted of the two remaining offenses.       The district court entered

judgment against Stewart for both crimes and sentenced her to a five-

year indeterminate term of incarceration on the introduction charge and

a one-year term of incarceration on the possession charge, to be served

concurrently.

      Stewart appealed. She claimed the district court entered an illegal

sentence because the offenses of introduction and possession merged

into a single offense under Iowa Code section 701.9. She also asserted

the district court erred in assessing court costs for a charge which was

dismissed by the district court. The court of appeals held the offenses

did not merge, but agreed with Stewart that costs should not have been
                                           3

assessed to her related to the dismissed charge. See State v. Petrie, 478

N.W.2d 620, 622 (Iowa 1991) (“Iowa Code section 815.13 and section

910.2 clearly require . . . that only such fees and costs attributable to the

charge on which a criminal defendant is convicted should be recoverable

under a restitution plan.”).

       We granted further review. We allow the decision of the court of

appeals to stand with respect to the cost issue. See Hills Bank & Trust

Co. v. Converse, 772 N.W.2d 764, 770 (Iowa 2009) (“When we take a case

on further review, we have the discretion to review any issue raised on

appeal . . . . As to the other issues raised in the briefs, we will let the

court of appeals opinion stand as the final decision of this court.”). We

consider only the question of whether the remaining criminal offenses

should have been merged.

       II. Standard of Review.

       Alleged violations of the merger statute are reviewed for corrections

of errors at law. State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994). Double

jeopardy claims are reviewed de novo. Id.

       III. Discussion of Merger and Double Jeopardy Issues.

       A. Positions of the Parties. Stewart raises two challenges to her

conviction for possession. First, she asserts that to convict her of both

introduction and possession of a controlled substance violates the

Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution. 1 See U.S. Const. amend. V (providing that no person shall

“be subject for the same offence to be twice put in jeopardy of life or

       1She  makes no claim under the double jeopardy clause of the Iowa Constitution
which utilizes different language than the federal counterpart. Article I, section 12 of
the Iowa Constitution provides: “[n]o person shall after acquittal, be tried for the same
offence.” This case does not involve successive prosecutions, but prosecutions for
multiple crimes in a single case.
                                    4

limb”). Second, she asserts that her conviction of both crimes violates

the merger statute found in Iowa Code section 701.9 (providing that “[n]o

person shall be convicted of a public offense which is necessarily

included in another public offense of which the person is convicted”).

The sum and substance of her argument under both her constitutional

and statutory theories is that under the test enunciated in Blockburger v.

United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309

(1932) (“[T]he test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact

which the other does not.”), it is legally impossible to be convicted of

introduction of a controlled substance without also possessing that

controlled substance. Further, she asserts the legislature did not intend

for two separate crimes to arise when it is impossible to commit the

greater crime without also committing the lesser crime. As a result, she

argues her conviction of the lesser offense, possession, must be reversed.

      In her analysis, Stewart focuses on the language of several Iowa

statutes. She notes Iowa Code section 719.8 prohibits the introduction

of controlled substances into detention facilities, Iowa Code section 706.3

prohibits a conspiracy alternative, Iowa Code section 703.1 presents an

aiding and abetting alternative, and Iowa Code section 703.2 creates a

joint criminal conduct crime.    She asserts that because she was only

charged under Iowa Code section 719.8, we must analyze legal

impossibility solely under the terms of this statute.        According to

Stewart, we cannot consider the possibility of liability on a conspiracy,

aiding and abetting, or joint criminal conduct theory because Stewart

was not charged under these statutes, but only under Iowa Code section

719.8, which she labels “the direct commission alternative.” She notes

that under our caselaw where a statute provides alternative methods of
                                      5

committing a crime, “it does not matter that some alternatives of [the

greater offense] can be committed without necessarily committing [the

lesser included offense] because those alternatives were not charged by

the State.” State v. Miller, 841 N.W.2d 583, 594 (Iowa 2014).

         Stewart recognizes that in State v. Caquelin, 702 N.W.2d 510, 512–

13 (Iowa Ct. App. 2005), the court of appeals held introduction and

possession of a controlled substance were two separate crimes. Stewart

argues Caquelin was wrongly decided and should be reversed by this

court.

         Stewart also recognizes that even where legal impossibility may

possibly be present, our precedent suggests that dual convictions might

nonetheless be affirmed if there is clear evidence the legislature intended

two punishments to apply to the same acts or omissions. See State v.

Bullock, 638 N.W.2d 728, 732 (Iowa 2002) (noting that “[e]ven though a

crime may meet the so-called Blockburger test for lesser-included

offenses, it may still be separately punished if legislative intent for

multiple punishments is otherwise indicated”); State v. Perez, 563

N.W.2d 625, 629 (Iowa 1997) (holding if the legislature intends double

punishment, section 701.9 is not applicable and merger is not required);

State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995) (stating even if the

crimes meet the legal impossibility test, we must “study whether the

legislature intended multiple punishments for both offenses”). Stewart

asserts there is no evidence the legislature intended dual punishments

under the statutes involved in this case.

         In the alternative, Stewart contends we should abandon the

approach in our cases and instead follow Justice Carter’s special

concurrence in State v. Daniels, 588 N.W.2d 682, 685–86 (Iowa 1998)

(Carter, J., concurring specially). Justice Carter noted “[s]ection 701.9 is
                                     6

a general statute that governs all crimes . . . . Consequently, all included

offenses meeting the Blockburger analysis must be merged within the

greater offense because this is the intent of the legislature as expressed

in [section 701.9].” Id. Stewart asserts that under Iowa Code section

701.9, the only requirement for merger is legal impossibility, period.

According to Stewart, there is no suggestion in the statute that once legal

impossibility is established, a court should engage in an exploration of

legislative intent.   Although the Double Jeopardy Clause of the Fifth

Amendment and Iowa Code section 701.9 address the same subject,

Stewart essentially asserts that we have improperly imported the round

federal constitutional peg into the square hole of state statutory

interpretation.

      The State counters it is legally possible to commit the crime of

introduction without also committing the crime of possession of a

controlled substance. For example, the State asserts a defendant could

cause a controlled substance to be introduced into a detention facility

through a third party but not possess the contraband. The State argues

the very issue in the case was decided in Caquelin, a decision supported

in Iowa and federal precedent. See, e.g., State v. Grady, 215 N.W.2d 213,

214 (Iowa 1974); United States v. Campbell, 652 F.2d 760, 762–63 (8th

Cir. 1981) (per curiam).     Further, the State emphasizes the test for

determining whether merger occurs is one based on legal impossibility

(whether it is theoretically possible in any case for the defendant to

commit the greater crime without also committing the lesser) and not

impossibility based upon the facts of a specific case.        See State v.

Hickman, 623 N.W.2d 847, 850 (Iowa 2001) (explaining the test is purely

a review of the legal elements and does not consider the facts of a

particular case); State v. Jeffries, 430 N.W.2d 728, 737–39 (Iowa 1988)
                                     7

(noting the impossibility test adopted by the court eliminated “the

troublesome problem posed by the manner in which we applied our

previous factual test to lesser-included offenses”). In the alternative, the

State argues that even if Stewart has demonstrated legal impossibility,

the legislature clearly intended multiple punishments for introduction

and possession of a controlled substance and, as a result, the conviction

for both offenses is valid.

      B. Analysis. We begin our analysis by outlining several principles

that guide our decision.      To begin with, both our state and federal

precedents endorse the notion that in the merger and double jeopardy

context, the threshold question is whether it is legally impossible to

commit the greater crime without also committing the lesser. See Miller,

841 N.W.2d at 588; State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990);

see also Whalen v. United States, 445 U.S. 684, 690–91, 100 S. Ct. 1432,

1437–38, 63 L. Ed. 2d 715, 722–23 (1980); Blockburger, 284 U.S. at 304,

52 S. Ct. at 182, 76 L. Ed. at 309. In other words, under both statutory

questions of merger and under the Double Jeopardy Clause of the United

States Constitution, we have rejected a factual impossibility test which

turns on the specific facts of the case in favor of a more general analysis

based on the relationship between the two crimes.       See Hickman, 623

N.W.2d at 850; Jeffries, 430 N.W.2d at 737–39.           No party directly

challenges this basic proposition.

      We now apply the legal impossibility test. In looking at the two

statutes involved in this case, we find the reasoning of the court of

appeals in Caquelin persuasive. We do not believe it is legally impossible

to be convicted of introduction without also being convicted of possession

of a controlled substance.    A defendant could, for instance, instruct a

third party to cause illegal drugs to be smuggled into a detention facility
                                           8

without ever possessing them.           See Caquelin, 702 N.W.2d at 512; see

also State v. Welch, 507 N.W.2d 580, 582 (Iowa 1993) (holding

possession with intent to deliver does not merge with distribution of a

controlled substance to a minor because possession is not a necessary

element of distribution); Grady, 215 N.W.2d at 214 (noting that a

“constructive transfer” which would amount to illegal delivery does not

require possession); Paramo v. State, 896 P.2d 1342, 1345 (Wyo. 1995)

(holding that “taking or passing controlled substances into a jail may be

proven      without     necessarily    proving     possession      of   a   controlled

substance”); see also Campbell, 652 F.2d at 762–63 (holding possession

of contraband was not necessarily included in the offense of attempting

to introduce contraband into a federal correctional institution). 2

       In     considering     impossibility,    our    cases    indicate     that   our

determination of legal possibility should be guided not only by analysis of

the statute, but also by examining the marshalling instructions given by

the district court.       See Miller, 841 N.W.2d at 590.           In this case, the

marshalling instructions largely mirror the statutory elements of each

crime as described in the statute. 3             They do not assist Stewart in

showing legal impossibility.




       2The Campbell court cited other cases where courts “have approved conviction
on multiple counts of introduction of contraband into a federal correctional facility and
possession of a controlled substance.” 652 F.2d at 762 (citing United States v. Corral,
578 F.2d 570 (5th Cir. 1978), United States v. Yanishefsky, 500 F.2d 1327 (2d Cir.
1974), United States v. Jiminez, 454 F. Supp. 610 (M.D. Tenn. 1978), and United States
v. Ward, 431 F. Supp. 66 (W.D. Okla. 1976)).
       3Jury   instruction number 15 stated:
               To prove the Defendant guilty of Introduction of a Controlled
       Substance Into a Detention Facility, the State must prove all of the
       following elements:
               1. The Woodbury County Jail was a detention facility.
                                         9

      Stewart has introduced a new twist by arguing that several

criminal statutes located in various provisions of the Code should be

considered in the alternative; as if there was one statute with several

statutory alternatives.     This is an interesting argument, but does not

carry the day for Stewart. It is not unusual for a defendant’s conduct to

give rise to potential liability under several alternatives of a singular

criminal statute or, as argued by Stewart here, under multiple criminal

statutes. In this circumstance, the statutes are not mutually exclusive,

but merely overlapping. Where the facts support criminal liability under

several statutory alternatives, the fact the State only charges a defendant

under one alternative does not preclude the State from offering evidence

that would also support conviction under an uncharged offense. In other

words, the sole focus for merger or double jeopardy purposes is on the

crimes charged in the trial information and for which the jury was

instructed.   See State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997)

(holding that “when a statute provides alternative ways of committing the

offense, the alternative submitted to the jury controls”).

      Here, for the reasons previously stated and examples previously

given, it is simply not legally impossible to commit the greater crime

actually charged without also committing the lesser crime as charged.

___________________________
             2. On or about the 7th day of December, 2012, in Woodbury
      County, Iowa, the Defendant introduced a controlled substance into that
      place.
             3. The Defendant was not authorized to do so.
      Jury instruction number 20 stated in relevant part:
             The State must prove each of the following elements of Possession
      of a Controlled Substance:
             1. On or about the 7th day of December, 2012, the Defendant
      knowingly or intentionally possessed methamphetamine.
             2. The Defendant knew the substance she possessed was
      methamphetamine.
                                    10

As a result, neither the merger statute in Iowa Code section 701.9 nor

double jeopardy principles under the Fifth Amendment form a basis for

reversal of Stewart’s possession conviction. The district court’s judgment

in this case must be affirmed.

      In light of our disposition, it is not necessary to consider whether

the statutory legal analysis under Iowa Code section 701.9 differs from

the analysis contained in cases interpreting the Double Jeopardy Clause

of the Fifth Amendment as suggested in Justice Carter’s special

concurrence in Daniels. See 588 N.W.2d at 685 (Carter, J., concurring

specially); see also Bullock, 638 N.W.2d at 732 (noting the court was

upon to “rethink our interpretation of section 701.9” based on Justice

Carter’s special concurrence in Daniels, but the court found it

unnecessary to resolve such issue, as it determined the crimes in the

case did not share a greater and lesser included offense relationship).

We leave this issue for another day.

      IV. Conclusion.

      For the above reasons, the judgment of the district court affirming

Stewart’s conviction is affirmed. With respect to the issue of costs, the

case is remanded to the district court for further proceedings as required

by the decision of the court of appeals.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.
