legal elements test in Iowa

2024First, the reviewing court must “decide whether the crimes meet the legal elements test for lesser included offenses.” State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995).

2024“To apply the legal elements test for lesser included offenses, we compare the elements of the two offenses to determine whether it is possible to commit the greater offense without also 10 committing the lesser offense.” Id.

1999To determine whether two charges constitute the same offense, we apply the legal elements test originally defined in Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932): The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

1999To determine whether two charges constitute the same offense, we apply the legal elements test originally defined in Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932): The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

2022The PCR court first determined that if the legal elements test was applied, kidnapping in the third degree would not be a lesser included offense of kidnapping in the second degree.1 But the court also found that the legislature has explicitly classified certain offenses as lesser included offenses even though they would not pass the elements test.2 The court then found that no Iowa appellate court had yet opined on whether kidnapping in the third degree is a lesser included offense of 1 The element test was established in State v. Jeffries, 430 N.W.2d 728, 736 (Iowa 1988) (“Considering the st

2020So we begin with the legal elements test, which requires us to determine whether “it is impossible to commit the greater offense without also committing the lesser offense.” State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988).

2025See Iowa Code § 701.9 (“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.”); Brown, 996 N.W.2d at 697–98 (applying the legal-elements test to the marshaling instruction); State v. Cook, 996 N.W.2d 703 , 710–11 (Iowa 2023) (same); State v. Hickman, 623 N.W.2d 847 , 850–51 (Iowa 2001) (en banc) (same); State v. Lambert, 612 N.W.2d 810 , 815–16 (Iowa 2000) (en banc) (same); State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (“When a statute provides alternativ

2024Stewart concedes that under “the strict, elements-based approach . . . these statutes appear to be sufficiently distinct as to not violate double jeopardy protections” because “each contains a single element the other does not.” We 4 Stewart mentions section 701.9 in passing, which is a codification of “the double jeopardy protection against cumulative punishment.” State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997).

2026The legal elements test is “purely 4 a review of the legal elements and does not consider the facts of a particular case.” Krogmann v. State, 914 N.W.2d 293, 325 (Iowa 2018) (citation omitted).

2020We apply the legal elements test, which, importantly, is “purely a review of the legal elements and does not consider the facts of a particular case.” Krogmann v. State, 914 N.W.2d 293, 325 (Iowa 2018) (quoting State v. Love, 858 N.W.2d 721, 725 (Iowa 2015)). [U]nder the legal test the lesser offense is necessarily included in the greater offense if it is impossible to commit the greater offense without also committing the lesser offense.

2023While the legal-elements test indicates the two crimes do not merge, we must also determine “whether the legislature intended multiple punishments for both offenses.” Halliburton, 539 N.W.2d at 344 (citing State v. Lewis, 514 N.W.2d 63, 69 (Iowa 1994)); see also Bloom, 983 N.W.2d at 51 (citing State v. Roby, 951 N.W.2d 459 , 464 (Iowa 2020)).

2023The legal-elements test compares “the elements of the two offenses to determine whether it is possible to commit the greater offense without also committing the lesser offense.” Id.

2024See, e.g., State v. Love, 858 N.W.2d 721 , 725–26 (Iowa 2015) (Mansfield, J., concurring) (discussing multiplicity cases); cf. State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995) (applying the legal elements test to determine whether possession of an offensive weapon under section 724.3 is a lesser- included offense of possession of an offensive weapon by a felon under section 724.26).

2022All things considered, then, we do not think the legal-elements test has been satisfied. 1 See Johnson, 950 N.W.2d at 24. 1We have considered the cases on which Bryant relies, namely: State v. West, 924 N.W.2d 502 (Iowa 2019); State v. Love, 858 N.W.2d 721 (Iowa 2015); and 6 Also, we think merger is contrary to the legislature’s purposes as expressed “in the words of the Iowa Code.” See State v. Goodson, No. 18-1737, 2020 WL 3571803 , at *7 (Iowa Ct. App. July 1, 2020), aff’d on further rev., 958 N.W.2d 791 (Iowa 2021).

2020First, we decide whether the crimes meet the legal elements test for lesser included offenses, known as the Blockburger test.2 State v. Gallup, 500 N.W.2d 437, 441 (Iowa 1993).

2019While 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.

2024Yet “[i]f one offense is not an included offense within the other, ‘there is the presumption that multiple punishments can be assessed.’” State v. Ceretti, 871 N.W.2d 88, 92 (Iowa 2015) (citation omitted).

2018See State v. Ceretti, 871 N.W.2d 88, 92 (Iowa 2015).

2023If “a statute provides alternative ways of committing the offense, the alternative submitted to the jury controls.” State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (citing State v. Steens, 464 N.W.2d 874, 875 (Iowa 1991)).

2023If “a statute provides al- ternative ways of committing the offense, the alternative submitted to the jury controls.” State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (citing State v. Steens, 464 N.W.2d 874, 875 (Iowa 1991)).

2018We decline to overrule Clarke’s holding that the “[a]pplication of the legal elements test plainly demonstrates that willful injury is not a lesser- included offense of attempted murder.” 475 N.W.2d at 196 .

2018We decline to overrule Clarke 's holding that the "[a]pplication of the legal elements test plainly demonstrates that willful injury is not a lesser-included offense of attempted murder." 475 N.W.2d at 196 .

2025See Iowa Code § 701.9 (“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.”); Brown, 996 N.W.2d at 697–98 (applying the legal-elements test to the marshaling instruction); State v. Cook, 996 N.W.2d 703 , 710–11 (Iowa 2023) (same); State v. Hickman, 623 N.W.2d 847 , 850–51 (Iowa 2001) (en banc) (same); State v. Lambert, 612 N.W.2d 810 , 815–16 (Iowa 2000) (en banc) (same); State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (“When a statute provides alternativ

2005State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001).

1997One means of determining legislative intent in this context is to employ the same elements test, also referred to as the legal elements test, which provides: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, 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." State v. Butler, 505 N.W.2d 806, 807 (Iowa 1993) (quoting Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932)).

1997One means of determining legislative intent in this context is to employ the same elements test, also referred to as the legal elements test, which provides: “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, 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.” State v. Butler, 505 N.W.2d 806, 807 (Iowa 1993) (quoting Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932)).

2026For that reason, “[t]he underlying public offense must be committed recklessly in order to form the basis of involuntary manslaughter.” State v. Ayers, 478 N.W.2d 606, 608 (Iowa 1991). 5 When comparing the elements of the two offenses, the convictions do not satisfy the legal elements test because the greater offense can be committed without also committing the lesser offense.

2025See Iowa Code § 701.9 (“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.”); Brown, 996 N.W.2d at 697–98 (applying the legal-elements test to the marshaling instruction); State v. Cook, 996 N.W.2d 703 , 710–11 (Iowa 2023) (same); State v. Hickman, 623 N.W.2d 847 , 850–51 (Iowa 2001) (en banc) (same); State v. Lambert, 612 N.W.2d 810 , 815–16 (Iowa 2000) (en banc) (same); State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (“When a statute provides alternativ

2024“If the same statutory offense is charged twice, the operative ‘question is whether the facts underlying each count were intended by [the legislature] to constitute separate units of prosecution.’” United States v. 16 Platter, 514 F.3d 782, 785 (8th Cir. 2008) (citation omitted); accord Ross, 845 N.W.2d at 702 .

2024“If the same statutory offense is charged twice, the operative ‘question is whether the facts underlying each count were intended by [the legislature] to constitute separate units of prosecution.’” United States v. 16 Platter, 514 F.3d 782, 785 (8th Cir. 2008) (citation omitted); accord Ross, 845 N.W.2d at 702 .

2024For there to be intimidation, Orr had to have “displayed a firearm in a threatening manner while committing that crime,” which according to another instruction “means to show or make the existence of a firearm apparent in a 11 manner which intimidates the victim at the time of the crime.” For going armed with intent, when a firearm is involved the “intent to use” element “requires proof of an intent to shoot another person.” State v. Slayton, 417 N.W.2d 432, 434 (Iowa 1987).

2023We “are obliged to indulge the presumption that ‘in the absence of a clear indication of contrary legislative intent’ the legislature ordinarily does not intend cumulative punishment.” State v. Perez, 563 N.W.2d 625, 628 (Iowa 1997) (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)).

2023We “are obliged to indulge the presumption that ‘in the absence of a clear indication of contrary legislative intent’ the legislature ordinarily does not intend cumulative punishment.” State v. Perez, 563 N.W.2d 625, 628 (Iowa 1997) (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)).