                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0784
                             Filed October 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRAVIS RAYMOND WAYNE WEST,
     Defendant-Appellant.
________________________________________________________________


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



      The defendant appeals his convictions for involuntary manslaughter and

delivery of a controlled substance. AFFIRMED.



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

Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Travis West and his brother visited a friend at her West Des Moines

apartment.    Early in the morning, they found the friend unresponsive in the

bathroom. West called 911. The woman was transported to the hospital, where

she died the same morning. Autopsy results confirmed the presence of lethal

amounts of heroin in her system.

       The State charged West with involuntary manslaughter and delivery of a

controlled substance. A jury found him guilty as charged.

       On appeal, West argues (1) the evidence was insufficient to support the

findings of guilt, (2) the district court erred in admitting certain “bad acts” evidence,

and (3) the district court erred by failing to merge West’s convictions at sentencing.

I.     Sufficiency of the Evidence

       The jury was instructed that the State would have to prove the following

elements of involuntary manslaughter:

             1. On or about June 5, 2015, the defendant recklessly
       committed the crime of delivery of a controlled substance.
             2. When the defendant committed the crime, the defendant
       unintentionally caused the death of [a woman].

The jury also was instructed the State would have to prove the following elements

of delivery of a controlled substance:

              1. On or about June 5, 2015, the defendant delivered a
       controlled substance.
              2. The defendant knew that the substance delivered was
       heroin.

West argues “the evidence does not support a finding that he supplied the heroin

used in the victim’s fatal drug overdose.” A reasonable juror could have found

otherwise.
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       West agreed to be interviewed by West Des Moines police and a recording

of the interview was admitted into evidence. During the interview, West admitted

he supplied heroin to the woman on one prior occasion. He also admitted taking

her to the hospital the previous summer after she overdosed on heroin. Although

he categorically denied supplying the heroin that resulted in her death, his phone

records disclosed early morning calls to his heroin supplier as well as post-911

calls to him.1    The jury reasonably could have credited the records and his

admission to supplying heroin in the past, over his vehement denial. See State v.

DeWitt, 811 N.W.2d 460, 476 (Iowa 2012) (“[C]redibility determinations are an

essential function of the fact finder.”). Substantial evidence supports a finding that

West supplied the heroin that resulted in the woman’s death. See id. at 477

(setting forth the standard of review).

II.    Admissibility of Evidence

       Before trial, West filed a motion in limine seeking to exclude “[a]ny reference

to prior convictions or bad acts” as well as “[e]vidence regarding cell phone

records, or any reference to the number and times of phone calls that [he] had

made to a person the State believes is [his] source of heroin.” Following a hearing,

the district court denied the motion. At the beginning of trial, the court confirmed

an intent to abide by the earlier ruling.



1 West argues the phone records constituted inadmissible bad acts evidence, a contention
we address below. Even if the evidence were deemed inadmissible, we would be obliged
to consider it in evaluating the sufficiency of the evidence to support the jury’s finding of
guilt. See State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (“In determining whether
retrial is permissible all the evidence admitted during the trial, including erroneously
admitted evidence, must be considered.”).
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       West now challenges the admission of (1) evidence relating to his presence

“at the victim’s previous heroin overdose,” (2) “evidence that he supplied the victim

with drugs in the past,” and (3) “evidence that he had been in contact with his drug

dealer around the time of the victim’s death.” In his view, this “prior-bad-acts

evidence” was unduly prejudicial.2 See Iowa Rs. Evid. 5.403, 5.404(b).

       A court considering evidence of prior bad acts must determine “whether the

evidence of other crimes or bad acts is relevant to a legitimate factual issue in

dispute.” State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001); Iowa R. Evid. 5.401.

Next, the court must determine “if its probative value is substantially outweighed

by the danger of unfair prejudice to the defendant.” Mitchell, 633 N.W.2d at 298;

see Iowa R. Evid. 5.403. In making this evaluation, the court is to consider

       (1) the need for the proffered evidence “in view of the issues and
       other available evidence,” (2) whether there is clear proof it occurred,
       (3) the “strength or weakness of the prior-acts evidence in supporting
       the issue sought to be prove[d],” and (4) the degree to which the
       evidence would improperly influence the jury.

State v. Einfeldt, 914 N.W.2d 773, 784 (Iowa 2018) (citations omitted); see also

State v. Putman, 848 N.W.2d 1, 8-9, n.2 (Iowa 2014) (stating we apply a “three-

step analysis” and explaining confusion regarding whether the “clear proof”

requirement is a third step). We review the district court’s ruling for an abuse of

discretion. State v. Helmers, 753 N.W.2d 565, 567, 569 (Iowa 2008).


2 West alternatively raises the issue  under an ineffective-assistance-of-counsel rubric. We
need not use that framework because West adequately preserved error by obtaining a
final ruling on the motion in limine. See State v. Tangie, 616 N.W.2d 564, 569 (Iowa 2000)
(“[W]here a motion in limine is resolved in such a way it is beyond question whether or not
the challenged evidence will be admitted during trial, there is no reason to voice objection
at such time during trial. In such a situation, the decision on the motion has the effect of
a ruling.”).
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       The evidence of West’s presence at the scene of the prior overdose was

highly relevant to the recklessness element of the involuntary manslaughter

charge. See State v. Hoon, No. 11-0459, 2012 WL 836698, at *4 (Iowa Ct. App.

Mar. 14, 2012) (considering defendant’s knowledge of victim’s “substance abuse

problems” in finding “substantial evidence of” recklessness in the “delivery of

methadodone”); State v. Block, No. 99-1242, 2000 WL 1587760, at *3 (Iowa Ct.

App. Oct. 25, 2000) (finding sufficient evidence of recklessness based in part on

the defendant’s knowledge of the drugs’ effects on the victim); cf. State v. Miller,

874 N.W.2d 659, 664–65 (Iowa Ct. App. 2015) (stating “[t]he mere delivery of

heroin, without more, does not necessarily establish a sufficiently material increase

in the probability of the proscribed harm” and “is inconsistent with the culpability

aspect of recklessness”).       West’s recorded admission provided “clear proof.”

Although West’s presence at the scene of the prior overdose was prejudicial,3 the

evidence was unlikely to trigger “overmastering hostility” towards West because it

was “of a nature similar to that in the underlying charge.” State v. Reyes, 744

N.W.2d 95, 100 (Iowa 2008). Additionally, West’s act of taking the woman to the

hospital following the prior overdose could be construed as a prior good act rather

than a prior bad act. We conclude the district court did not abuse its discretion in

admitting the evidence.

       We turn to West’s challenge to the admission of his statement that he

previously supplied heroin to the woman. West likely waived this challenge. See


3 In State v. Liggins, 524 N.W2d 181, 188-89 (Iowa 1994), the Iowa Supreme Court stated
“[t]he admission of evidence of cocaine delivery and distribution is inherently prejudicial”
because it appeals “to the jury’s instinct to punish drug dealers.”
                                           6

State v. Scheffert, 910 N.W.2d 577, 583 (Iowa 2018) (“It is well-settled law that if

a party fails to object to the admission of evidence, the party waives any ground

for complaint, and the party cannot raise any error concerning its admission for the

first time on appeal.”). In his motion in limine, West did not seek to exclude

evidence that he supplied heroin to the woman but only evidence of the amount of

heroin he previously supplied. At the hearing on the motion, the prosecutor asked

for clarification as to whether West was also challenging the act of supplying the

heroin. Defense counsel responded, “I have no trouble with that. My client

addresses that issue in his interview, which will be introduced as evidence. He

does not speak to quantity.” The court followed up with, “So your only concern . . .

is that the State not produce some evidence as to specific quantities. Is that your

concern?”    Counsel responded, “Yes, Your Honor.”               In short, the defense

essentially conceded that evidence of West’s past act of supplying heroin was

admissible. We have serious doubts as to whether West preserved error but we

bypass our error-preservation concerns and proceed to the merits. See State v.

Taylor, 596 N.W.2d 55, 56 (Iowa 1999).

       Our analysis of the admission of evidence relating to West’s presence at

the scene of the prior overdose is equally applicable to the admission of evidence

that he supplied heroin in the past. Although West’s role as supplier could be

construed as more prejudicial than his mere presence, the State’s need for the

evidence to establish recklessness far outstripped its prejudicial impact.        We

discern no abuse of discretion in the district court’s ruling.

       We are left with the cell phone records. We agree with the State that these

records were not evidence of prior bad acts but evidence of the crimes with which
                                          7

West was charged. See State v. Frerichs, No. 04-0665, 2005 WL 1630016, at *2

(Iowa Ct. App. July 13, 2005) (“While Frerichs on appeal characterizes the Spirit

Lake evidence as evidence of ‘other crimes’ or ‘prior bad acts,’ we believe it is

more appropriately considered as substantive evidence of the instant charge of

possession of methamphetamine with intent to deliver.”).          The records were

probative of delivery. Although West argues the phone numbers alone, without

transcripts of the conversations, rendered the evidence unduly prejudicial, the

numbers alone spoke volumes. As the district court stated:

       [T]here is circumstantial evidence that there were conversations, or
       a conversation, between a known heroin purchaser and a known
       heroin dealer and shortly thereafter the victim overdosed, and then
       there were further contacts between the heroin supplier and the
       defendant . . . . [I]nferentially, phone contact between a drug buyer
       and a drug seller raises a reasonable inference that the discussion
       was not about purchasing a Tesla automobile. It was about drug
       dealing. The jury can believe that or not believe that, but I see that
       there is a reasonable inference in that respect . . . . I understand the
       prejudicial effect just as I understand the prejudicial effect of
       references to prior drug interactions between the defendant and the
       victim, but I don’t agree that it lacks relevance or that the relevance
       is overweighed by the prejudice.

       We discern no abuse of discretion in the court’s admission of the phone

records.

III.   Merger

       West contends the district court erred in failing to merge his convictions for

involuntary manslaughter and delivery of a controlled substance.

       Iowa Code section 701.9 (2015) governs the analysis:

              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 a verdict conflicts with this section, the court shall
       enter judgment of guilty of the greater of the offenses only.
                                          8



To determine whether a public offense is “necessarily included in another public

offense,” we apply the legal-elements test. See Krogmann v. State, 914 N.W.2d

293, 325 (Iowa 2018). The legal-elements test is one indicator of legislative intent.

See State v. Ceretti, 871 N.W.2d 88, 92 (Iowa 2015). If the crimes meet the legal-

elements test, we then must determine “whether the legislature intended multiple

punishments for both offenses.” State v. Halliburton, 539 N.W.2d 339, 344 (Iowa

1995) (examining merger issues under Double Jeopardy Clause).

       West argues, “[I]t is impossible to commit the greater offense of involuntary

manslaughter by commission of delivery of a controlled substance without also

committing the lesser offense of delivery of a controlled substance.” The State

responds with an argument based on the jury instructions and the type of drug

delivered to the woman. We believe the argument impermissibly draws on the

facts of the case. See Krogmann, 914 N.W.2d at 295 (stating the legal-elements

test is “purely a review of the legal elements and does not consider the facts of a

particular case”).   The State also asserts, “Only by allowing conviction and

sentence for both crimes can the legislature’s . . . intent prevail that both [crimes]

have effect.” We agree with the State’s second argument.

       Involuntary manslaughter by commission of a public offense is a class “D”

felony. Iowa Code § 707.5(1)(a). Delivery of one hundred grams or less of a

mixture or substance containing a detectable amount of heroin is a class “C”

felony. Id. § 124.401(1)(c)(1). The differential punishment scheme reflects a

legislative intent to impose multiple punishments for a public offense and for

involuntary manslaughter predicated on the public offense. As the Iowa Supreme
                                              9


Court stated in applying the merger doctrine under similar circumstances, “Having

authorized additional conviction, surely the legislature also intended that additional

punishment could be imposed.” State v. Gallup, 500 N.W.2d 437, 443 (Iowa 1993).

       West focuses on the following statement in Gallup: “[I]t makes no difference

that the lesser included offense here carries a higher penalty than the greater

offense.” Id. at 442. That statement was made in the context of the court’s

application of the legal-elements test. As noted, the legal-elements test is only the

first step in the merger analysis. Halliburton, 539 N.W.2d at 344. Even if the test

is satisfied, courts are obligated to examine the legislative scheme. Id.

       This court did just that in State v. York, No. 08-1490, 2009 WL 4115310, at

*4 (Iowa Ct. App. Nov. 25, 2009). Although we concluded a conviction for child

endangerment causing bodily injury merged with a conviction for involuntary

manslaughter, we did so only after examining “whether the legislature ‘clearly

indicated’ multiple punishments for both crimes.” Id. at *3.

       It is true that we found no clear indication of legislative intent to impose

multiple punishments.       Id. at *5.    But, both crimes were class “D” feloines.,4

whereas we are faced with a class “C” and a class “D” felony. In our view, this

distinction makes a difference.5




4
  In York, the court cited Iowa Code section 726.6(5), which addresses the “serious injury”
alternative to the crime. 2009 WL 4115310, at *3-4. Section 726.6(6) addresses the
“bodily injury” alternative. The defendant in York was tried on the bodily-injury alternative.
5
  We recognize the crimes at issue in Halliburton were both class “D” felonies, yet the
court declined to merge the convictions in light of the different purposes behind the two
statutes. 539 N.W.2d at 344-45. In York, the court found no clear indication of legislative
intent in the legislature’s “generic reference” to “a necessary predicate offense.” 2009 WL
4115310, at *4-5. Although the same generic reference is present here, we also are faced
with a differential punishment scheme.
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      We conclude the conviction for delivery of a controlled substance did not

merge with the conviction for involuntary manslaughter.     We affirm West’s

judgment and sentence for both.

      AFFIRMED.

      Mullins, J. concurs; Doyle, J., concurs specially.
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DOYLE, Judge (concurring specially).

       I concur but feel compelled to comment on the merger issue. My sentiments

mirror those of District Court Judge Robert Blink, who remarked at West’s

sentencing that:

              I am also deeply troubled by a statutory scheme that exposes
       you to a ten-year prison sentence for delivering heroin but a five-year
       prison sentence for the fact that your actions killed someone. To me,
       that does not make sense. That is not well-reasoned. But, here
       again, that is the choice of the legislature, not mine.

       Additionally, although I am hard-pressed to say the majority has improperly

applied the two-step Halliburton test, I question the propriety of the test. We are

bound by supreme court precedent, so we must look to that court to revisit the

issue. See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990).

       Under Halliburton, “[e]ven though a crime may meet the so-called

Blockburger [v. United States, 284 U.S. 229 (1932)] test for lesser-included

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

punishments is otherwise indicated.” State v. Bullock, 638 N.W.2d 728, 732 (Iowa

2002) (citing State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995)). The two-

step analysis set forth in Halliburton requires “we first decide whether the crimes

meet the legal elements test for lesser included offenses. If they do, we then study

whether the legislature intended multiple punishments for both offenses.” 539

N.W.2d at 344 (citations omitted). The analysis is not without its critics. Justice

Carter suggested “the court’s approach to the double-punishment issue needs to

be revised.” State v. Daniels, 588 N.W.2d 682, 685 (Iowa 1998) (Carter, J.,

concurring specially). He commented that “[u]nfortunately, some of the language

used by this court in applying the constitutional law to statutory claims under [Iowa
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Code] section 701.9 has been inaccurate and confusing.             Foremost in the

confusion is a misguided two-step analysis described [in Halliburton].” Id. Justice

Carter observed: “The two-step analysis that this court has been applying

improperly allows included offenses under the Blockburger test to be separately

punished based on this court’s intuitive conclusions concerning a presumed

legislative intent. This is an unwarranted judicial abrogation of the clear directive

contained in [Iowa Code] section 701.9.” Id. at 685-86 (footnote omitted); see also

State v. Lambert, 612 N.W.2d 810, 816-17 (Iowa 2000) (Carter, J., concurring

specially). I agree with Justice Carter’s assessment that the Halliburton two-step

analysis is misguided. But the issue will have to wait for another day. See State

v. Stewart, 858 N.W.2d 17, 23 (Iowa 2015) (“We leave this issue for another day.”).
