               IN THE SUPREME COURT OF IOWA
                              No. 17–0784

                           Filed March 1, 2019


STATE OF IOWA,

      Appellee,

vs.

TRAVIS RAYMOND WAYNE WEST,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



      Defendant seeks further review of a decision by the court of appeals

affirming his conviction and sentence.         DECISION OF COURT OF

APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and Nan Jennisch,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, John Sarcone, County Attorney, and Andrea Petrovich

and Joseph Danielson, Assistant County Attorneys, for appellee.
                                      2

APPEL, Justice.

      Travis West was convicted of delivery of a controlled substance, Iowa

Code § 124.401(1)(c)(1) (2015), and involuntary manslaughter by a public

offense other than a forcible felony or escape, id. § 707.5(1)(a). The charges

arose out of the death of Bailey Brady as the result of a heroin and ethanol

overdose. After a jury trial, West was convicted and sentenced for both

offenses. West appealed.

      We transferred West’s appeal to the court of appeals. The court of

appeals held that there was sufficient evidence to support the verdict, that

there was no error in the admission of certain challenged evidence, and

that the crimes of involuntary manslaughter by a public offense and

delivery of a controlled substance did not merge.

      We granted further review. We consider only the merger question.

We decline to review the rulings of the court of appeals that there was

substantial evidence to support the verdict and that certain evidence was

properly admitted. On these issues, the ruling of the court of appeals

stands. See State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (recognizing

our discretion to consider all issues raised in initial appeal but considering

on further review only one of those issues and allowing the court of appeals

decision to stand on other issue).

      On the question of whether the offenses merge, we conclude, for the

reasons expressed below, that they do not. As a result, the district court

ruling on the merger question is affirmed.

      I. Procedural and Factual Background.

      A jury could have found the following facts. Bailey Brady died from

a drug overdose on June 5, 2015. On the evening of her death, she visited

several bars and consumed alcoholic beverages but was not intoxicated.
                                     3

After returning to her apartment, Brady invited West and his brother at

about 1:00 a.m. to come to her apartment.

      West lived about two hours away. West occasionally used heroin,

which he obtained from a man named “Snap” in Des Moines. In the past,

West had obtained heroin from Snap for Bailey’s use. West knew that in

July 2014, Brady had overdosed on heroin. He drove her to the hospital

on that occasion.

      Cell phone records reveal that Brady talked to West at 2:49 a.m. on

the morning of June 5, 2015. Eight seconds later, West began a series of

phone calls with Snap, his heroin supplier.

      After the West brothers arrived at Brady’s apartment, West and

Brady went to a convenience store to purchase food a few minutes after

4:00 a.m. They returned to the apartment. West’s brother later found

Brady slumped over the bathtub in the apartment and not breathing. West

called 911 a few minutes after 5:00 a.m. Paramedics transported Brady’s

body to the hospital where she was pronounced dead. An autopsy revealed

blood alcohol “below . . . legal limit” as well as a fatal amount of heroin.

Medical testimony at trial indicated that “without the heroin, she would

have been fine.” The heroin that killed her was likely ingested within thirty

minutes of death. After the 911 call, phone records reveal six actual or

attempted calls between West and Snap.

      The State charged West with delivery of a controlled substance, Iowa

Code § 124.401(1)(c)(1), and involuntary manslaughter by a public offense

other than a forcible felony or escape, id. § 707.5(1)(a). The involuntary

manslaughter charge is a class “D” felony, while delivery of a controlled

substance is a class “C” felony. A jury found him guilty of both charges,

the district court entered judgment, and West was duly sentenced for each

crime.
                                      4

      II. Standard of Review.

      West’s claim that the district court erred in failing to merge

convictions can be raised at any time because any unlawful failure to

merge results in an illegal sentence. State v. Love, 858 N.W.2d 721, 723

(Iowa 2015).    Review of an illegal sentence for lack of merger is for

correction of errors at law. Id.

      III. Discussion.

      A. Introduction.     The question of when one offense is a lesser

included offense of another has perplexed courts for centuries.           The

question   of   what   constitutes   lesser   included   offenses   has   been

characterized as a “many-headed hydra,” as an issue that “has challenged

the effective administration of criminal justice for centuries,” and as one

“not without difficulty.” Fuller v. United States, 407 F.2d 1199, 1228 (D.C.

Cir. 1967) (third quotation); Brown v. State, 206 So. 2d 377, 380 (Fla.

1968) (second quotation), abrogated on other grounds by In re Use by Trial

Cts. of Standard Jury Instructions in Criminal Cases, 431 So. 2d 594, 596–

97 (Fla. 1981); Dorean Koenig, The Many-Headed Hydra of Lesser Included

Offenses: A Herculean Task for the Michigan Courts, 1975 Det. C. L. Rev.

41, 63 (first quotation). Sometimes, the doctrine is said to turn on analysis

of legal elements of the crimes, sometimes on the facts and evidence, and

sometimes based on the interrelationship of the crimes involved.           See

generally Christen R. Blair, Constitutional Limitations on the Lesser

Included Offense Doctrine, 21 Am. Crim. L. Rev. 445, 447–51 (1984).

      Whatever the proper test, the consequence of a finding that a crime

is a lesser included offense of a greater crime is that the lesser crime

merges into the greater crime where a defendant is convicted of both

offenses. The common law doctrine of merger of lesser included offenses

into greater offenses is often expressed in statutory provisions.
                                           5

       As is apparent, the proposition that a lesser included offense merges

into the greater offense is related to the constitutional concept of double

jeopardy. 1 Although no constitutional issue is raised in this case, the

double jeopardy cases provide a backdrop to analysis of statutory

provisions implementing the merger rule.

       B. Relevant Statutory Provision and Rule on Lesser Included

Offenses. In 1976, the Iowa legislature enacted Iowa Code section 701.9.

1976 Iowa Acts ch. 1245, ch.1, § 109. As of 2015, the section provides,
              No person shall be convicted of a public offense which
       is necessarily included in another public offense of which the
       person is convicted. If the jury returns a verdict of guilty of
       more than one offense and such verdict conflicts with this
       section, the court shall enter judgment of guilty of the greater
       of the offenses only.

Iowa Code § 701.9. The key question under the statute is when a public

offense is “necessarily included in another public offense.” Id.

       Iowa Rule of Criminal Procedure 2.6(2) uses language that is similar

but not identical to Iowa Code section 701.9. See Iowa R. Crim. P. 2.6(2).

This rule provides that “[u]pon prosecution for a public offense, the

defendant may be convicted of either the public offense charged or an

included offense, but not both.” Id.

       C. Federal       Caselaw      Related      to    Double      Jeopardy       and

“Necessarily Included” Offenses.

       1. Double jeopardy caselaw. A brief review of federal cases provides

background for our consideration of the statutory issue in this case. In

Blockburger v. United States, 284 U.S. 299, 301, 52 S. Ct. 180, 181 (1932),

the United States Supreme Court considered whether two crimes—selling


       1The Fifth Amendment to the United States Constitution provides that “nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V.
                                     6

forbidden drugs not from an original stamped package and selling such

drugs not pursuant to a written order—were one offense. In answering the

question, the Blockburger Court employed an elements test, declaring that

the test is whether “each provision requires proof of a fact which the other

does not.” Id. at 304, 52 S. Ct. at 182.

      While Blockburger involved a question of statutory interpretation,

the linkage between statutory interpretation and the Double Jeopardy

Clause was explicitly made in Whalen v. United States, 445 U.S. 684, 688,

100 S. Ct. 1432, 1435–36 (1980). In Whalen, the question was whether

the Double Jeopardy Clause of the United States Constitution barred

sentences for both the crime of rape and the separate crime of killing in

the course of perpetration of the rape. Id. at 685–87, 100 S. Ct. at 1434–

35.

      In Whalen, the Supreme Court emphasized that “the petitioner’s

claim under the Double Jeopardy Clause cannot be separated entirely

from a resolution of the question of statutory construction.” Id. at 688,

100 S. Ct. at 1435–36. According to the Whalen Court, “if Congress has

not authorized cumulative punishments for rape and for an unintentional

killing committed in the course of the rape . . . the petitioner has been

impermissibly sentenced.” Id. at 688–89, 100 S. Ct. at 1436. “If a federal

court exceeds its own authority by imposing multiple punishments not

authorized by Congress, it violates not only the specific guarantee against

double jeopardy, but also the constitutional principle of separation of

powers in a manner that trenches particularly harshly on individual

liberty.” Id. at 689, 100 S. Ct. at 1436.

      The Whalen Court concluded that Congress did not intend to impose

consecutive punishments for rape and unintentional killing in the

perpetration of rape. Id. at 690, 100 S. Ct. at 1437. The Whalen Court
                                        7

noted that the criminal statutes themselves did not state whether

Congress intended multiple punishments. See id. But the Whalen Court

referred to a general sentencing statute that obliquely seemed to stand for

the proposition that multiple punishments arising out of the same criminal

transaction cannot arise unless each offense “requires proof of a fact which

the other does not.”     Id. at 691–92, 100 S. Ct. at 1437–38 (emphasis

omitted) (quoting D.C. Code § 23-112 (1973)).            This is, of course, the

Blockburger elements test. See id. The Whalen Court stated that “[t]he

assumption underlying the rule is that Congress ordinarily does not intend

to punish the same offense under two different statutes.” Id. at 691–92,

100 S. Ct. at 1437–38.

      The qualifier “ordinarily” is noteworthy. The Whalen Court declared

that if the Blockburger test is met, Congress presumptively did not wish to

impose cumulative punishment “in the absence of a clear indication of

contrary legislative intent.”   Id. at 692, 100 S. Ct. at 1438.           If the

Blockburger test indicates that the offenses are the same, cumulative

punishments cannot be imposed “unless elsewhere specially authorized

by Congress.” Id. at 693, 100 S. Ct. at 1438. Based on review of the

statutory language of the crimes, the legislative history, and the lack of

other authorization, the Whalen Court concluded that Congress did not

intend for the imposition of multiple punishments for the crimes of rape

and unintentionally killing in the perpetration of rape. Id. at 692–95, 100

S. Ct. at 1438–39.

      The primacy of legislative intent was emphasized in Albernaz v.

United States, 450 U.S. 333, 336, 101 S. Ct. 1137, 1141 (1981).              In

Albernaz,   the   Supreme       Court       considered    whether    cumulative

punishments for conspiracy to import marijuana and conspiracy to

distribute marijuana amounted to a violation of double jeopardy. Id. at
                                     8

334–35, 101 S. Ct. at 1140. The Albernaz Court employed the Blockburger

elements test and concluded that because each crime had an element

which the other did not, no double jeopardy problem was present. Id. at

339, 101 S. Ct. at 1142.

      But the Albernaz Court did not stop with the Blockburger analysis.

The Albernaz Court went on to employ additional reasoning to reject the

notion that Congress intended to prohibit multiple punishments. Id. at

339–44, 101 S. Ct. at 1142–45. Among other things, the Albernaz Court

noted that “the two conspiracy statutes are directed to separate evils

presented by drug trafficking.”    Id. at 343, 101 S. Ct. at 1144.      The

Albernaz Court closed with the observation that where Congress intended

to impose multiple punishments, such sentences do not violate the Double

Jeopardy Clause. Id. at 344, 101 S. Ct. at 1145.

      The bread crumbs in Whalen and Albernaz suggesting that multiple

punishments might be imposed in some circumstances even if the

Blockburger test was met led to the final destination in Missouri v. Hunter,

459 U.S. 359, 368, 103 S. Ct. 673, 679 (1983). In Hunter, the Missouri

Supreme Court had acknowledged that the legislature intended to impose

multiple punishments for the crimes of armed criminal action and first-

degree robbery, yet the court reasoned that under Blockburger the offenses

were the “same offense.” Id. at 363–64, 103 S. Ct. at 677. As a result, the

state supreme court concluded that multiple punishments could not be

imposed under the Double Jeopardy Clause. Id. at 364, 103 S. Ct. at 677.

      The Hunter Court emphasized that simply because two statutes may

be construed to proscribe the same conduct under Blockburger, the double

jeopardy analysis is not complete. Id. at 368, 103 S. Ct. at 679. The

Hunter Court held that even when the two offenses amounted to the same

offense under Blockburger, double jeopardy did not prohibit cumulative
                                      9

punishments if there was a clear indication of legislative intent to impose

them. Id. at 368–69, 103 S. Ct. at 679.

        The trend away from Blockburger as a double jeopardy anchor

continued in Garrett v. United States, 471 U.S. 773, 778–79, 105 S. Ct.

2407, 2411–12 (1985). In Garrett, the Supreme Court considered whether

a defendant could be convicted of a “continuing criminal enterprise” based

in part upon a prior criminal conviction. Id. at 775, 105 S. Ct. at 2409.

In this case, the Supreme Court declared “the first step in the double

jeopardy analysis is to determine whether the legislature . . . intended that

each violation be a separate offense.” Id. at 778, 105 S. Ct. at 2411. The

Garrett Court emphasized that in Hunter the Court indicated that the

Blockburger test “is not controlling when the legislative intent is clear from

the face of the statute or the legislative history.” Id. at 779, 105 S. Ct. at

2411.    Based on its review of the language, structure, and legislative

history of the relevant statutes, the Garrett Court concluded that Congress

plainly intended the criminal provisions in question to be separate

violations. Id. at 779, 105 S. Ct. at 2412. Under the circumstances, the

Garrett Court noted that “the Blockburger presumption must . . . yield to a

plainly expressed contrary view on the part of Congress.” Id.

        The bottom line is that the double jeopardy cases of the United

States Supreme Court have moved away from heavy reliance on the

Blockburger elements test and now give greater emphasis to legislative

intent in determining whether the state may impose multiple punishments

on a defendant for crimes arising out of the same transaction. Although

the Blockburger test has been characterized as giving rise to a presumption

of sorts, that presumption may be overcome by a clear expression of

legislative intent to impose multiple punishments.
                                     10

      2. Necessarily included offenses under Federal Rule of Criminal

Procedure 31(c)(1). Federal Rule of Criminal Procedure 31(c)(1) provides

that “[a] defendant may be found guilty of . . . an offense necessarily

included in the offense charged.”         Fed. R. Crim. P. 31(c)(1).    Not

surprisingly, the federal courts divided on the question of what offense is

necessarily included in the offense charged.      Compare United States v.

Whitaker, 447 F.2d 314, 319 (D.C. Cir. 1971) (applying “inherent

relationship” test), with United States v. Schmuck, 840 F.2d 384, 387–88

(7th Cir. 1988) (en banc) (applying elements test), aff’d, 489 U.S. 705, 109

S. Ct. 1443 (1989).

      In Schmuck v. United States, 489 U.S. at 715, 109 S. Ct. at 1450,

the Supreme Court examined the divergent interpretations of the rule. The

Schmuck Court considered whether, under the rule, the offense of

odometer tampering was a lesser included offense of mail fraud. Id. at

721–22, 109 S. Ct. at 1453. In answering the question in the negative, the

Schmuck Court embraced the elements test.         Id.   The Schmuck Court

emphasized that the elements test was more consistent with the “offenses”

and “inclusion” language of the rule, that it provides notice of potential

charges, and that the test is more certain and predictable. Id. at 716–21,

109 S. Ct. at 1450–53.     The Schmuck Court did not further consider

legislative history of the underlying criminal statutes.

      D. Iowa Caselaw.

      1. Lesser included offenses.        Our Iowa cases dealing with the

problems of lesser included offenses have not been linear. Our older cases

relied on an elements test similar to that enunciated in Blockburger, 284

U.S. at 304, 52 S. Ct. at 182. See State v. Marshall, 206 Iowa 373, 375,

220 N.W. 106, 106 (1928). In State v. Everett, 157 N.W.2d 144, 148–49

(Iowa 1968), we cited Marshall as authority in applying an elements test in
                                    11

determining that operation of a motor vehicle without the owner’s consent

was not a lesser included offense of larceny of a motor vehicle.      Four

members of the Everett court, however, dissented. Id. at 149 (LeGrand, J.,

dissenting).   According to the dissent, whether offenses are included

should not be determined by the elements of the crimes, but on the facts

of the particular case. Id. at 149–50.

      The Everett dissent demonstrated that the test for determining what

offenses are “included” in the greater offense was contested terrain.

Indeed, five years later, in State v. Hawkins, 203 N.W.2d 555, 557 (Iowa

1973) (en banc), Everett was overruled. A majority of the court now held

that the manner of determining whether an offense was included in a

greater offense must be determined not by the elements of the offenses but

by the evidence in each case. Id. at 557–58.

      The evolution of our caselaw regarding what crimes are included in

greater crimes was hardly finished. In State v. Smith, 223 N.W.2d 223,

225 (Iowa 1974), we held that there are two steps in determining whether

one offense is necessarily included within another. According to Smith,

the first step was the legal elements test, and the second step was “an

ad hoc factual determination.” Id. In Smith, we held the elements test was

not met and, therefore, there was no need to make any factual

determinations. Id. at 226.

      We again revisited the question of what constitutes a necessarily

included offense in State v. Jeffries, 430 N.W.2d 728, 730 (Iowa 1988). In

Jeffries, we canvassed the various differing approaches to determining

when an offense is a lesser included offense of a larger crime. Id. at 730–

35. At the time of Jeffries, the court had the benefit of Iowa Code section

701.9. See id. at 736. After reviewing the various approaches, the Jeffries

court determined that “the strict statutory-elements approach” is the best
                                    12

approach. Id. The Jeffries court noted that the strict elements approach

is embodied in Iowa Code section 701.9 and in Iowa Rule of Criminal

Procedure 21(3), the latter of which provided that a defendant may be

convicted at trial “of any offense the commission of which is necessarily

included in that with which the defendant is charged.”       Id. (emphasis

omitted) (quoting Iowa R. Crim. P. 21(3) (1985)). We also stressed that the

strict elements approach provides “the most clarity to . . . practitioners

and judges.” Id. at 737 (quoting Janis L. Ettinger, In Search of a Reasoned

Approach to the Lesser Included Offense, 50 Brook. L. Rev. 191, 201

(1984)).   The Jeffries court further argued that the strict elements

approach is more logical, better comports with the constitutional

requirement of adequate notice of charges than other tests, passes muster

in a double jeopardy context, and lessens potential due process concerns.

Id. at 737–39.

      2. Double jeopardy cases. In several cases after Jeffries, however,

we considered the question of what crimes were necessarily included in

larger offenses for purposes of double jeopardy. In State v. McKettrick, 480

N.W.2d 52, 57–58 (Iowa 1992), we noted that because the elements of the

crimes involved in the case were not the “same,” a presumption arose

under the Blockburger approach that McKettrick could be subject to

multiple punishment for the crimes.       The McKettrick court, however,

emphasized that the application of the Blockburger test was not the end of

the matter under United States Supreme Court precedent and that the

court was required to examine whether there is a clear indication of

contrary legislative intent. Id. at 58. In McKettrick, the defendant argued

that it was simply impossible for him to be guilty of both assault with

intent to inflict serious injury and assault without the intent to inflict

serious injury.   Id.   We found the logic persuasive and held that
                                      13

prosecution   for   both   offenses    would     violate    double   jeopardy

notwithstanding the fact that the offenses did not involve the same

elements under Blockburger. Id.

      We again confronted a double jeopardy challenge in State v. Gallup,

500 N.W.2d 437, 441 (Iowa 1993). In Gallup, the defendant was found

guilty of delivery of a controlled substance and distribution of a taxable

substance without a drug tax stamp.        Id.   In considering the double

jeopardy issue, we noted that “the Blockburger legal elements test is

determinative of double jeopardy only when legislative intent is not clearly

expressed by statute.” Id. at 443. Based on a statutory provision stating

that the chapter was not “a defense or affirmative defense to or immunity

for a dealer from criminal prosecution pursuant to Iowa law,” we

concluded that the legislature clearly authorized multiple punishments.

Id. (emphasis omitted) (quoting Iowa Code § 421A.5 (1991), currently

§ 435B.5).

      Notably, the defendant in Gallup also brought a challenge under

Iowa Code section 701.9. See id. at 445. In Gallup, we declared that

“[s]ection 701.9 codifies the double jeopardy protection against cumulative

punishment.” Id. Because we had already found that double jeopardy

would not be violated by cumulative punishments in the case, the

statutory claim under Iowa Code section 701.9 was without merit. Id.

      Finally, we considered a double jeopardy challenge in State v. Lewis,

514 N.W.2d 63, 64 (Iowa 1994).        In Lewis, the crimes involved were

criminal gang participation and terrorism.        Id.      We concluded that

terrorism was a lesser included offense of criminal gang participation as

terrorism was the underlying offense for criminal gang participation. Id.

at 69.   Yet, we concluded that the legislature intended to authorize

multiple punishments. Id. We came to this conclusion because under the
                                    14

statutory scheme a prosecutor would never charge gang participation

using various predicate offenses. This is because the sentence for gang

participation is either the same or less than the penalty for the underlying

crime. Id. The effect of merger would be to effectively nullify or make

useless the charge of gang participation. Id.

      3. Post-Gallup cases involving Iowa Code section 701.9.          After

Gallup, our interpretation of Iowa Code section 701.9 used the same

approach as utilized by the United States Supreme Court in analyzing

double jeopardy cases. For instance, in State v. Halliburton, 539 N.W.2d

339, 340 (Iowa 1995), we considered whether multiple punishment for two

crimes—possession of an offensive weapon and possession of an offensive

weapon by a felon—violated double jeopardy or Iowa Code section 701.9.

We repeated the observation in Gallup that Iowa Code section 701.9

codified double jeopardy protection, and we did not provide an

independent statutory analysis.     Id. at 344.   Instead, we utilized the

method applied by the United States Supreme Court in double jeopardy

cases. See id.

      We first recognized in Halliburton that, under the elements test, “the

possession of an offensive weapon is a lesser included offense of

possession of an offensive weapon by a felon.” Id. But that was not the

end of the analysis. We then proceeded to consider whether the legislature

had intended cumulative punishments. Id. We concluded that it did. Id.

We observed that both crimes were class “D” felonies.       Id. If multiple

penalties were prohibited, there would never be a reason to bring a charge

of possession of an offensive weapon by a felon as it would always merge

with the lesser offense. Id. We further noted that the legislative intent to

impose cumulative punishments was reflected in the different purposes of

the statutes. Id. at 344–45. One statute focuses on “particularly harmful
                                     15

weapons” while the other focuses on “potentially harmful persons.” Id. at

345.

       We continued this approach to Iowa Code section 701.9 in two

cases. In State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997), and State

v. Hickman, 576 N.W.2d 364, 368 (Iowa 1998), we recognized that double

jeopardy principles apply under Iowa Code section 701.9.

       A contrary view soon emerged to interpreting Iowa Code section

701.9.    In State v. Daniels, 588 N.W.2d 682, 683 (Iowa 1998), we

considered whether double jeopardy prohibited multiple punishments for

the crimes of first-degree burglary and assault while participating in a

felony. We concluded that the crimes had different elements and, for that

reason, concluded that multiple punishments did not give rise to a double

jeopardy claim. Id. at 684–85.

       Justice Carter concurred specially. Id. at 685 (Carter, J., concurring

specially). Justice Carter asserted that Iowa Code section 701.9 merely

enacted the legal elements test of Blockburger. Id. Under Justice Carter’s

theory, in all cases where the elements of the lesser included offense are

the same as those in the greater offense, merger occurs under the statutory

provision. Id. He rejected the second step beyond Blockburger, namely,

inquiry into legislative intent. Id. at 685–86. According to Justice Carter,

the second step improperly allows included offenses to be separately

punished based upon the court’s “intuitive conclusions concerning a

presumed legislative intent.” Id. Justice Carter regarded the exploration

of legislative intent in Halliburton as “an unwarranted judicial abrogation

of the clear directive contained in section 701.9.” Id. at 686. Justice

Carter reprised his Daniels concurrence in State v. Lambert, 612 N.W.2d

810, 816–17 (Iowa 2000) (Carter, J., concurring specially), and in State v.
                                     16

Reed, 618 N.W.2d 327, 337 (Iowa 2000) (Carter, J., concurring in part and

dissenting in part).

      Since Daniels, Lambert, and Reed, we have decided a number of

cases under Iowa Code section 701.9.        See, e.g., State v. Ceretti, 871

N.W.2d 88, 92 (Iowa 2015). On two occasions, we recognized the position

of Justice Carter on the merger question but found it unnecessary to

address the issue. See State v. Stewart, 858 N.W.2d 17, 23 (Iowa 2015);

State v. Bullock, 638 N.W.2d 728, 732 (Iowa 2002).

      E. Analysis.      West asserts that the offenses of involuntary

manslaughter by commission of a public offense under Iowa Code section

707.5(1)(a) and delivery of a controlled substance under Iowa Code section

124.401(1)(c)(1) should have merged. He cites Iowa Code section 701.9

and Iowa Rule of Criminal Procedure 2.6(2). West claims that under the

legal elements test, the crime of delivery of a controlled substance merges

with the involuntary manslaughter offense. He claims that Iowa courts

“apply a strict statutory approach when considering merger issues.”

Although West implies that the strict statutory approach is determinative,

he does not explicitly ask us in his main brief to overrule the two-step

approach of Halliburton, 539 N.W.2d at 344–45, and Lewis, 514 N.W.2d at

69.

      In addition, West acknowledges that the involuntary manslaughter

offense is a class “D” felony while the offense he claims is merged into

involuntary manslaughter, delivery of a controlled substance, is a class

“C” felony. West argues, however, that under our decision in Gallup, 500

N.W.2d at 442, it makes no difference that the greater offense is subject to

a lesser penalty than the included offense.

      After the court of appeals affirmed his conviction, West sought

further review. In his application for further review, West reprises his prior
                                    17

arguments but also explicitly asks us to revisit our approach to lesser

included offenses and follow the approach of Justice Carter in Lambert,

612 N.W.2d at 816–17, and Daniels, 588 N.W.2d at 685–86. West thus

argues that because the elements of delivery are necessarily included in

the greater offense of involuntary manslaughter by public offense, the

judgment and sentence for the conviction that merges should be vacated.

      The State counters with a two-pronged argument. With respect to

the Blockburger elements test, the State notes that the jury instruction

regarding the delivery charge specifically stated that in order to find the

defendant guilty the jury was required to find that the defendant “knew

that the substance delivered was heroin.” The State suggests that because

it is possible to commit the crime of involuntary manslaughter by public

offense through delivery of a drug other than heroin, the offenses do not

merge.

      In the alternative, the State relies on the second step of Halliburton,

namely, legislative intent. The State notes that, in Halliburton, the court

emphasized that the crimes of possession of an offensive weapon and

possession of an offensive weapon by a felon were both class “D” felonies.

539 N.W.2d at 344. The Halliburton court reasoned that if merger occurred

for crimes with identical punishment, there would never be a reason to

charge a defendant with the greater offense. Id.

      The State points out that reasoning similar to Halliburton was

employed in Lewis, 514 N.W.2d at 69. In Lewis, the State asserts, we

concluded that the “greater” crime of criminal gang participation did not

merge with the “lesser” crime of terrorism because the penalty of the

greater offense was less than the included offense. Id. The State argues

that Lewis stands for the proposition that a penalty scheme providing that
                                    18

the greater offense has a lesser punishment than the included offense

indicates a legislative intent that multiple punishments be permitted.

      We agree with the State’s latter argument. In Halliburton and Lewis,

we determined that while the legal elements test is a useful tool, it is not

determinative. 539 N.W.2d at 344; 514 N.W.2d at 69. Halliburton and

Lewis both stand for the proposition that where the greater offense has a

penalty that is not in excess of the lesser included offense, a legislative

intent to permit multiple punishments arises. 539 N.W.2d at 344–45; 514

N.W.2d at 69. Otherwise, there would be little point to the greater offense.

      In this case, if the offenses merged, a person convicted of both

involuntary manslaughter by public offense and delivery of a controlled

substance would receive a lesser sentence than a defendant convicted

solely of delivery of a controlled substance. It is hard to imagine that the

legislature intended this result.    While it is true that we made the

observation in Gallup that it made no difference that the lesser included

offense had a greater penalty, 500 N.W.2d at 442, this observation was

made solely in the context of the legal elements test.

      That leaves the question of whether we should abandon our two-

step approach to Iowa Code section 701.9 as suggested by Justice Carter

in his opinions in Reed, 618 N.W.2d at 337, Lambert, 612 N.W.2d at 816–

17, and Daniels, 588 N.W.2d at 685–86.

      As demonstrated above, however, the question of what constitutes a

necessarily included offense is a difficult issue.       What constitutes a

necessarily included offense has given rise to multiple tests and varied

analysis, both in Iowa and elsewhere. In the context of merger of offenses,

the term “necessarily included” contains a heavy dose of ambiguity. See

Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728 (Iowa

1995) (discussing the court’s approach to resolving statutory ambiguity).
                                     19

      In Halliburton and Gallup, we decided to approach the statutory

question under Iowa Code section 701.9 in a fashion similar to the federal

double jeopardy cases. 539 N.W.2d at 344; 500 N.W.2d at 445. The basic

approach taken in these cases can be easily stated: the question of

whether an offense is necessarily included in a greater offense is a question

of legislative intent. See Halliburton, 539 N.W.2d at 344. The Blockburger

strict legal elements test is thus a tool in the analysis but is not solely

determinative. Id.

      The Gallup and Halliburton approach is reasonable.          Relying on

federal double jeopardy caselaw to suggest an interpretive approach to a

state statute to address the merger of crimes is neither required nor

prohibited.   The question is not whether we would have decided the

question differently if this were a question of first impression but whether

our intervention twenty years later is required to correct an error.

      Because our approach in Gallup and Halliburton coherently

addresses a statutory ambiguity, is not unworkable, and amounts to a

highly visible approach to statutory interpretation of the relationship

between criminal offenses that the legislature has chosen not to revise over

a twenty-year period, we decline to disturb this line of cases.

      IV. Conclusion.

      For the above reasons, the decision of the court of appeals and the

judgment of the district court are affirmed.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

      All justices concur except Wiggins, J., who takes no part.
