IN THE SUPREME COURT OF IOWA
No. 13–1113
Filed January 9, 2015
Amended February 5, 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.
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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
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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.
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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
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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
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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)
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(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
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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.
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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.
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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
called 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.