¶ 61. (dissenting). I strongly disagree with the majority that double jeopardy does not prevent a retrial of Henning on the bail jumping charges. The majority's analysis rests on its *385conclusion that Henning's case is controlled by principles of continuing jeopardy. In fact, the majority went so far as to say that the principle of continuing jeopardy is so dispositive to the outcome, that "even if we accepted defendant's contention that bail jumping and the underlying offense are the same for double jeopardy purposes, there is still no bar to retrying a reversed conviction ... because this is simply a case of continuing jeopardy ...Majority op., ¶ 56.
¶ 62. During the initial trial, the bail jumping charges rested solely on whether Henning possessed the controlled substances at issue with intent to deliver. The stipulation makes this clear, as the prosecution and defense agreed that a guilty verdict on either count of possession with intent to deliver would result in Hen-ning having no defense to the three bail jumping charges. Throughout the trial, both attorneys acted in accord with the stipulation, as the evidence presented to the jury focused exclusively on the charges concerning possession with intent to deliver, not on simple possession charges. During the jury instructions conference, neither attorney requested any lesser-included offense instructions on simple possession of the controlled substances at issue.
¶ 63. The nature of the case was changed, however, when the jury asked the judge, during deliberations, if it could find Henning guilty of bail jumping based on simple possession, rather than possession with intent to deliver. I agree with the court of appeals' conclusion that that question "functionally transformed the case into a lesser-included offense case." State v. Henning, 2003 WI App 54, ¶ 20, 261 Wis. 2d 664, 660 N.W.2d 698. As a result of the circuit court's affirmative answer, Henning's fate, which had once rested solely on the possession with intent to deliver charges, was *386decided instead on charges of simple possession. See id., ¶ 3. The jury deliberated and found Henning not guilty of the two charges of possession with intent to deliver, but guilty of bail jumping, apparently based on simple possession, without the proper instructions on lesser-included offenses and simple possession charges, and without applicable verdict forms.
¶ 64. The majority recognizes an exception to the continuing jeopardy doctrine, but then brushes past it without analyzing its relevance to this case. The exception makes clear that "double jeopardy principles prevent a defendant from being retried when a court overturns his conviction due to insufficient evidence." Majority op., ¶ 22 (citing Burks v. United States, 437 U.S. 1, 11 (1978)). Such exception means that the prohibition against double jeopardy "forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks, 437 U.S. at 11 (footnote omitted). If the State is allowed another trial here, the prosecution is essentially being allowed another chance to present testimony and request instructions and verdict forms on bail jumping charges premised on simple possession, rather than possession with intent to deliver THC and LSD. As the court of appeals pointed out, it is not necessary to "quarrel with the State's right to make [a] strategic choice. But having made it, the State has to live with it." Henning, 261 Wis. 2d 664, ¶ 21.
¶ 65. Since this is a case that was not tried on simple possession, it is a case nearly identical to one overturned for insufficient evidence. Here, the State failed to try this case on charges of possession of THC and LSD, but rather tried and failed in its attempt to convince the jury of Henning's guilt of possession with *387intent to deliver those substances. Under such circumstances, the State failed in its proof that Henning was guilty of bail jumping as well.1 If the jury had found Henning guilty of possession with intent to deliver, he would have had no defense to the bail jumping charges due to the stipulation he entered into with the state. However, the jury found Henning not guilty with respect to the charges of possession with intent to deliver THC and LSD. The government failed to meet its burden on those charges and, in turn, failed to meet its burden for charges of bail jumping. The gamble the State made by entering into a stipulation, which rested the bad jumping charges on obtaining a guilty verdict for a possession with intent to deliver charge, proved unsuccessful.
¶ 66. In State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), we used similar reasoning when reversing a conviction for bail jumping:
Because the bail jumping conviction was premised solely upon the Defendant's obstructing conviction, which we now reverse, the bail jumping conviction must also be reversed. Absent a finding that the Defendant committed a crime, the State has not proved beyond a reasonable doubt an element of the bail jumping charge — that the Defendant intentionally failed to comply with the term of his bond prohibiting criminal activity. ... Because we are reversing the *388Defendant's conviction for obstructing, we conclude as a matter of law that the evidence, viewed most favorably to the State, does not support the Defendant's conviction for bail jumping.
Id. at 245 (citations omitted).
¶ 67. A similar finding is required here, because the jury found that the State had not proved an element of the bail jumping charge — commission of the crime of possession with intent to deliver — beyond a reasonable doubt. Moreover, the jury was not instructed on lesser-included offenses or simple possession, forcing it to deliberate without the proper benefit of instructions and verdict forms before finding Henning guilty of bail jumping. I agree with the court of appeals that "[b]e-cause such verdicts were not provided, we have no documentation of the jury's supposed determination that Henning possessed controlled substances." Henning, 261 Wis. 2d 664, ¶ 23. Without such verdict forms, there is no evidence that the jury even reached the conclusion that Henning was guilty of simple possession.
¶ 68. Despite the position of the court of appeals to the contrary, this is plainly a case of insufficient evidence. See id., ¶ 26. The stipulation clearly provided that Henning's bail jumping charges directly hinged on the jury's determination of his charges relating to possession with the intent to deliver THC and LSD. Because the jury subsequently found him not guilty of those charges, the State's case in regard to the charges of bail jumping evaporated. The analysis by the majority based on continuing jeopardy is clearly wrong.
¶ 69. Without the argument based on the continuing jeopardy doctrine, any new proceeding against Henning on charges of bail jumping would violate the Double Jeopardy clauses of the United States and *389Wisconsin Constitutions. As stated in the United States Constitution, "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 Similarly, the Wisconsin Constitution states, "no person for the same offense may be put twice in jeopardy of punishment...." Wis. Const, art. I, § 8, cl. 1. However, the majority, in violation of these protections, would place Henning in jeopardy a second time, for what amounts to the same offenses of which he has already been acquitted.
¶ 70. Relying on Gavieres v. United States, 220 U.S. 338, 343 (1911), the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), clarified the test for determining whether an offense is considered the same as another for purposes of double jeopardy. Blockburger stated that "the 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." Id. See also majority op., ¶ 17.
¶ 71. The majority makes several important points about the relationship of double jeopardy — in light of the Blockburger test — to this case:
As we examine this situation, several principles are clear: Henning was acquitted of (1) possessing THC with intent to deliver; and (2) possessing LSD with intent to deliver. Consequently, he may not be charged with these same offenses in a second prosecution after acquittal. Moreover, he may not be charged with simple possession of THC or simple possession of LSD because these charges would violate Blockburger in that the lesser-included offense in each instance is the "same offense" as the offense of which Henning was acquitted. The lesser-included offense does not require proof of a fact which the greater offense does not.
*390Majority op., ¶ 27 (citing Blockburger, 284 U.S. at 304).
¶ 72. Thus, both the majority and case law are quite clear that Henning cannot be directly charged with simple possession of either controlled substance at issue. Yet, despite its belief that it would be violative of double jeopardy to charge Henning with simple possession of THC or LSD, the majority would allow Henning to be retried on charges of bail jumping when Henning has already been acquitted of the crimes upon which the bail jumping charges are based. As the United States Supreme Court noted on the subject of double jeopardy:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88 (1957).
¶ 73. Here, the majority allows Henning to be subject to just such a repeated attempt at conviction, even though Henning is to be retried for bail jumping charges when he was acquitted of the crimes upon which the bail jumping charges were premised.
¶ 74. In State v. Kurzawa, 180 Wis. 2d 502, 524, 509 N.W.2d 712 (1994), this court discussed three features of the Blockburger analysis of double jeopardy claims:
Under Blockburger, the state cannot successively prosecute a defendant for two offenses unless each offense necessarily requires proof of an element the other does *391not. Neither can the state prosecute an offense whose elements are "incorporated" into the elements of an offense already prosecuted. Finally, the state cannot relitigate factual issues that have already been adjudicated to the defendant's benefit in an earlier prosecution. These protections ensure that defendants will not be forced to unfairly "run the gauntlet" a second time for the same offense.
Id. (citations omitted). See also, majority op., ¶ 35.
¶ 75. The first of these three features is a basic element of double jeopardy as found in Blockburger: a person acquitted of one offense cannot subsequently be prosecuted for a lesser-included offense of the original offense. As previously noted, this means that Henning, who has already been acquitted of the offenses of possession of THC and LSD with intent to deliver, cannot now be charged with simple possession of THC or LSD, because the simple possession charges are lesser-included offenses of possession with intent to deliver.
¶ 76. The second of these features is the incorporation test initially enunciated in United States v. Dixon, 509 U.S. 688 (1993) (Scalia, J.) (plurality opinion). While only two United States Supreme Court Justices adopted this approach, this court chose to make the incorporation test a feature of Wisconsin's double jeopardy analysis in Kurzawa. Kurzawa, 180 Wis. 2d at 524. Under the incorporation test, the State is precluded from prosecuting a defendant for an offense that incorporates the elements of an offense for which the defendant has already been prosecuted. Id. Here, the bail jumping charges against Henning incorporate the two charges of simple possession which the State wishes to use as the basis for the bail jumping charges. Using the incorporation test, Henning should *392not be charged with bail jumping, which incorporates a charge — simple possession — which is a lesser-included offense of charges of which he has already been acquitted. The incorporation test, which applies in this case, prevents a defendant like Henning from being indirectly charged with an offense for which the prosecution has already failed to secure a conviction.
¶ 77. However, even without using the incorporation test, I still reach the conclusion that Henning cannot be retried on charges of bail jumping based upon simple possession. Kurzawa also clearly states that issues already decided in favor of the defendant cannot be relitigated by the State. Id. In State v. Hauk, 2002 WI App 226, ¶ 19, 257 Wis. 2d 579, 652 N.W.2d 393, the court of appeals stated that a bail jumping conviction does not require proof of conviction for the underlying offense that led to a charge of bail jumping. Rather, bail jumping requires "evidence sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that [the] defendant intentionally violated his or her bond by committing a crime . . .." Id. See also Henning, 261 Wis. 2d 664, ¶ 25. While Hauk allows a defendant to be convicted of bail jumping without being convicted of the underlying crime, this case is distinguishable in that Henning has already been acquitted of the offenses that underlie the bail jumping charges. The factual issues underlying the bail jumping charges have already been litigated in favor of Henning. To predicate Henning's punishment for bail jumping on a crime for which he has already received an acquittal, as the majority does, is fundamentally unfair. Moreover, it directly contradicts Wisconsin case law, the Wisconsin Constitution, and the United States Constitution.
¶ 78. The majority attempts to distinguish Henning's claims from those made in Kurzawa, by *393stating that "[t]his case does not involve a 'second' or 'subsequent' or 'successive' prosecution." Majority op., ¶ 37. However, as an exception to the continuing jeopardy rule, this case involves just such a successive prosecution; therefore, the factors established by this court in Kurzawa apply and prevent Henning from being subjected to a second "running of the gauntlet."
¶ 79. For the foregoing reasons, I respectfully dissent.
¶ 80. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.
It is highly debatable that a jury, even if the bail jumping charges had originally been premised on simple possession, could have found Henning guilty of those charges and of the charges of simple possession, beyond a reasonable doubt. The drugs were found during a search of a car belonging to Henning's brother. The "bag of weed" was found in the armrest between where Henning and the other backseat passenger were sitting. It was this other passenger who told the police he believed the drugs belonged to Henning.