### IN THE SUPREME COURT OF IOWA

No. 17

– 0 7 84
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 I owa District Court for Polk County, Robert J. Blink , Judge.

Defendant seeks furth er review of a decision by the court of a ppeals 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 control led substance, Iowa Code § 124.401(1)( c )(1) (2015) , and involuntary man slaughter 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 tra nsferred 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 e vidence, and
that the crimes of involuntary manslaughter b y 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 th os e issues an d 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 n amed “Snap” in Des Moines. I n 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 wit h Snap, his heroin supplier.
After the We s t brothers arrived at Brady’s apartment, West and Brady went to a convenience store to purchase food a few m inutes after
4 :00 a.m. They returned to the apartment. West’s brother later found Brady s lumped over the bathtub in th e 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 pronou nced 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 w ithin thirty
minutes of death. After the 911 call, phone records reveal six actual or attempted calls between We s t 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. § 70 7.5 (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 l ack of merger is for
correction of errors at law. Id.
I II
. 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 off enses ha s been characterized as a “many

- headed hydra ,” a s a n 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
C ts

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

– 97 (Fla. 1981); Dorean Koenig, The Many

- Heade d Hydr a 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

som etimes 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 offense s is often expressed in statutory provisi ons.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 i mplementing the merger rule.
B. Relevant Statutory Provision and Rule on Lesser Included
Offenses. In 1976, the Iowa legisla ture enacted Iowa Code section 7 01.9.
19 76 Iowa Acts ch. 1245, ch.1, § 109. As of 2015, the section provides, No person shall be convicted of a publi c offense which is necessarily included in another public offense of w hich the person is convicted. If the jury returns a verdict of guilt y of more than one offense and such verdict conflicts with this section, th e court shall enter judgment of guil ty of the greater of the offense s only.
Iowa Code § 701.9. The key quest ion under the statute is when a public
offense is “necessarily includ ed 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
defend ant may be convicted of either the public offense charged or an included offense, but not both.” Id.
C. Federal Casel aw Related to Double Jeopardy and

“ Necessarily Included ” Offenses.
1. Double jeopardy case law

. A brief review of federal case s provides background for our consideration of the statutory issue in this case. In
Blockbu rger v. United States , 284 U.S. 29 9, 301, 52 S. Ct. 180 , 181 (1932), the United States Supre me Court considered whether two crimes

— selling

1 The Fifth Amendment to the United States Constitution provides that “nor shall any perso n be subject for the same offenc e to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.6 forbidden drugs not from a n original stamped package and selling such drugs not pursuant to a written order

— were one offense. In answering the question, the Blockburger C ourt employed an elements test, declaring that the test is whether “each provision requires proof of a fact whic h the other
does not.” Id. at 304, 52 S. Ct. at 182.
While Blockbu rger involved a question of statutory interpretation, the linkage between statutory interpretation and the D ouble J eopardy
C lause was explicitly made in Whalen v. United States , 445 U.S. 6 84 , 688 , 100 S. Ct. 1432 , 1435

– 36 (1980). In Whalen , the question was whether
the D ouble J eopardy C lause 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 r ape
. Id

. at 68 5

– 87 , 100 S. Ct. at 1434

– 35

. In Whalen , the Supreme Court emph asized 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 C ourt, “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 imp ermissibly 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 separ ation of powers in a manner that trenches particularly harshly on individual liberty.” Id

. at 689 , 100 S. Ct. at 1436

. The Whalen C ourt conclud ed 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 C ourt7

noted that the criminal statutes themselves did not state whether Congress intended multiple punishments. See id. But the Whale n C ourt 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 69 1

– 9 2 , 100 S. Ct. at 1437

– 38 (emphasis omitted) (quoting D.C. Code § 23

- 112 (1973)) . This is, of course, the
Blockbu rger elements test. See i d. The Whalen C ourt 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 143 7

– 3 8. The qualifier “ordinarily” is noteworthy. The Whalen C ourt declared
that if the Bloc kbu rger 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
Blockbu rger test indicates that the offenses are the same, cum ulative 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 C ourt 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
d istribute marijuana amounted to a violation of double jeopardy. Id. at8

334

– 35, 101 S. Ct. at 1140. The Albernaz C ourt employed the Block bu rger 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 C ourt did not stop with the Blockbu rger analysis.
The Albernaz C ourt went on to employ additional reasoning to reject the notion that Congress intended to prohibit multiple punishment s. Id. at
339

– 44, 101 S. Ct. at 1142

– 45

. Among other things, the Albernaz C ourt noted that “the two conspiracy statutes are directed to separate evils presented by drug trafficking.” Id. at 343, 101 S. Ct. at 1144. The
Albern a z C ourt closed with the observation that where Congress intended to impose multiple punishments, such sentences do not violate the D ouble
J eopardy C lause. Id. at 344, 101 S. Ct. at 1145.
The bread crumbs in Whalen and Albernaz suggesting that multiple punis hments might be imposed in some circumstances even if the
Blockbu rger test was met led to the final destination in Mi ssouri v. Hunter , 459 U.S. 359, 368, 103 S. Ct. 673 , 679 (1983). In Hunter , t he 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 th e court reasoned that under Blockbu rger the offenses
were the “same offense.” Id. at 363

– 64 , 103 S. Ct. at 67 7. As a result, the state supreme c ourt concluded that multiple punishments could not be imposed under the D ouble J eopardy C lause. Id. at 364, 103 S. Ct. at 677.
The Hunter C ourt 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 C ourt held that even when the two offenses amounted to the same
offense under Blockbu rger , double jeopardy did not prohibit cumulative9 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 Blockbu rger 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 u pon a prior criminal conviction. Id. at 775, 105 S. Ct. at 2409. In this case, the Supreme Court declared “the f irst step in the double jeopardy analysis is to determine whether the legislature

. . . intended that
each violat ion be a separate offense. ” Id. at 778, 105 S. Ct. at 2411. The
Garrett C ourt emphasized that in Hunter the C ourt 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 C ourt 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 C ourt noted that “the Blockbu rger 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
Blockbu rger 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 trans action. Although
the Blockbu rger 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 i ncluded offenses u nder Federal Rul e of Criminal
Procedur e 31 (c) (1)

. Federa l 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

n ecessarily 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 C ourt 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 t est. Id. The Schmuck C ourt emphasized that the elements tes t 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 C ourt did not further consider legislative history of the underlying criminal statutes.
D. Iowa Casel a w. 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 Blockbu rger , 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 in11 determining that operation of a motor vehicle without the owner’s consent
was not a lesser included offense o f 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

o f the particular case . Id. at 149

– 50.
The Everett dissent demonstrate d 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 55 5, 557 (Iowa 1973) (en banc) , Everett was overruled. A majority of the court now held
that the manner of dete rmining whether an offense was i ncluded in a greater offense must be determined not by the elements of the offenses but by the evidence in each case. I d

. at 557

– 58.
The evolution of our case law 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 dete rmining whether
one offense is n ecessarily in cluded 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. Jeff ries , 430 N.W.2d 728 , 730 ( Iowa 1988). In Jeff ries , we canvassed the various differing approaches to determining
when an offen se is a lesser included offense of a larger crime

. Id. at 730

– 35 . At the time of Jeff ries , the court had the benefit of Iowa Code section
701.9. See id. at 736. After reviewing the various approaches, the Jeff ries
court determined that “the strict statutory

- elements approach” is the best12 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

co nvicted at trial “of any offense the commission of which is necessarily
included in that with which the defe ndant is charged.” Id. (emphasis omitted) (quoting Iowa R. Crim. P. 21(3) (1985)). We also stressed that the strict elements approach provides “ th e most clar ity 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 Jeff ries 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 must er in a double jeopardy context , and lessens potential due process conce rns. 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 Blockbu rger approach that McKettrick could be subject to multiple punishment for the crimes. The McKettrick court, however, emphasized that the application of the Blockbu rger 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

. a t 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 that13 prosecution for both offenses would violate double jeopardy notwithstanding the fact that the offenses did not involve the same
elements under Blockbu rger
. Id. We again confronted a double jeopardy challenge in State v. Gall u p , 500 N.W.2d 437 , 441 (Iowa 1993). In Gall u p , 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 Blockbu rger legal elements test is determinative of double jeopardy only when leg islative intent is not clearly
expre ssed 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 pr osecution pursuant to Iowa law,” we concluded that the legislature clearly au thorized multiple punishments.
Id

. (emphasis omitted) (quoting Iowa Code § 421A.5 (1991), currently § 435B.5). Notably, the defendant in Gall u p also brou ght a challenge under
Iowa Code section 701.9. See id. at 445. In Gall u p , we declared that “[s] ection 701.9 codifies the double jeopardy protection again st 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 ( Iow a 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 the14 statutory scheme a prosecutor would never charge gang participation using various predicate offenses . This i s 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

- Gall u p cases involving Iowa Code s ection 701.9

. After
Gallu p , 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.
W e 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 of fensive weapon by a felon. ” Id. But that was not the end of the analysis. We then proceeded to co nsider 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 punishment s was reflected in the different purposes of
the statutes. Id. at 344

– 45. One statute focuses on “particularly harmful15

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 Sta te 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 s ection
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

- d egree burglary and assault while participating in a felony. We concluded that the crimes had different elements and, for that reason, concluded that multiple p unishment s 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 s ection 701.9 merely
enacted the legal elements test of Blockbu rger
. 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 Blockbu rger , namely, inquiry into legislative intent. Id. at 685

– 86. According to Justice Carter, the second step improperly allows included offenses to be separately
pu nished based upon the court’ s “i ntuitive 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 directiv e 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 i n part and dissenting in part).
Since Daniels , Lambert , and Reed , we have decided a number of
cases unde r 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 u nder 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 wh en 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 a cknowledges that the involuntary manslaughter
offense is a class “ D ” felony while the offense he claims is merged into involuntary mansla ughter , 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 incl uded offense.
Aft er the court of appeals affirmed his conviction, West sought further review. In his application for further review, West reprises his prior17 arguments but also explicitly asks us to revisit our approach to lesser
included offenses and follow the approach o f 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 Blockbu rger elements test, the S tate 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 substanc e delivered was heroin .” The S tate suggests that because it is possible to commit the crime of involuntary manslaughter by public offense through deliv ery of a drug other than heroin , the offenses do not
merge. In the alternative, the S tate relies on the second step of Halliburton , namely, legislative intent. The S tate notes that, in Halliburton , the court emphasized that the crimes of possession of an offensive weapon and possession of an offensive weapon by a felo n 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 defe ndant 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 l ess t han the incl uded offense. Id. The State argues
that Lewis stands for the proposition that a penalty scheme providing that18 the greater offense has a lesser punishment than the included offense indicates a legislative intent that mul tiple punishments be pe rmitted. We agree with the State’s latter argument. In Halliburton and Lewis , we determined that while the legal elements test is a usefu l 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 su bstance. 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

n ecessarily included offense is a difficult issue. What constitutes a necessarily inclu ded 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 , 53 7 N.W.2 d 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. 5 39 N.W.2d at 344; 500 N.W.2d at 445. The basic approach taken in th ese cases can be easily stated: the que stion of
whether an offense is n ecessarily included in a greater offense is a q uestion of legislative intent. See Halliburton , 539 N.W.2d at 344. The Blockbu rger 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 case law to suggest an interpretive approach to a
state statute to address the merger of crimes is neither required n or prohibited. The question is not whethe r 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 e rror. 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 cho sen not to revise over a twenty

- year period, we decline t o disturb this line of cases.
I V. Conclusion. For the above reasons, the decision of the court of appeals and the judgment of the district court are affirmed.
DECISION OF COURT O F APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED. All justices concur except Wiggins, J., who takes no part.