### IN THE SUPREME COURT OF IOWA

No. 14

– 1242
Filed April 14 , 2017 Amended June 26, 2017

STATE OF IOWA , Appellee ,

vs.
YARVON NATHANIEL RUSSELL , Appell ant

.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal , Judge.

The State seeks further review after the court of appeals reversed
the defendant’s conviction based on one of three alternative theories of guilt lac king substantial evidence. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

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

.

Thomas J. Miller, Attorney General, Darrel Mulli ns , Assistant Attorney General, and John P. Sarcone, County Attorney, for appellee.2

APPEL , Justice
. This case is a companion to State v. Shorter , 893 N.W.2d 65 (Iowa 2017). On appeal, Yarvon Russell assert ed there was insufficient evidence to support his conviction based on princip l e , aiding and abetting, or joint criminal conduct theories in connection with the death of Richard Daughenbaugh. Russell argued that if there was insufficient
evidence on joint criminal conduct , but sufficient evidence on t he other

two theories , his conviction should be reversed. See State v. Heemstra , 721 N.W.2d 549, 558 (Iowa 2006). Russell additionally contend ed that
his attorney provided ineffective assistance of counsel for failing to object
to the identification test imony of Monica Perkins as going beyond the scope of the minutes of testimony. Finally, Russell assert ed that the district court erred in admitting prior inconsistent testimony of a minor witness, T.T., who on direct examination testified that she did not
remember the events or her prior inconsistent statements. Russell similarly assert ed that testimony from a police detective that the minor witness identified Russell in an unsworn prior statement as “kicking” Daughenbaugh was inadmissible hearsay.
We tr ansferred the case to the court of appeals. The court of appeals reversed Russell’s conviction on the ground that there was insufficient evidence to support a joint criminal conduct instruction

. W e granted further review. For the reasons expressed below , we vacate the judgment of the court of appeals and affirm Russell’s conviction.
I. Facts and Background Proceedings.
A. Overview. Kent Tyler, Russell, James Shorter, and Leprese
W illiams were charged with first

- degree murder in connection with the death of Richard Daughenbaugh. Tyler was tried separately from Russell, Shorter, and Williams. At the trial of the three co defendants, a3 jury convicte d Russell and Shorter of second

- degree murder. Will iams, however, was acquitted. The evidence introduced at the trial of Russell, Shorter, and
Williams was described in Shorter , 893 N.W.2d 65 , and need not generally be repeated here. With respect to the identification of Russell

as a perpetrator of the crime, B.B. , a s eventeen year old, placed Russell in the crowd that assembled around Daughenbaugh. Monica Perkins
testified that Russell “st omped” Daughenbaugh. L.S. , a fifteen year old at the time of the murder, however, did not see Russell participating in
the attack. The jury was instructed on theories of liability as a principle, liability as an aider and abettor , and liability through joint criminal conduct. The jury returned a general verdict of g uilty of second

- degree
murder.
B. Testimony of T.T. and Youngblut
. 1. Introduction. This case differs from Shorter because Russell challenges the admission of testimony at trial from T.T. and Detective Bradley Youngblut. T.T. , a juvenile, was at the scene of Daughenbaugh’s
attack on August 24

– 25 , 2013. On August 27 , T.T. was interviewed by police , including Youngblut. During the interview, T.T. identified Russell as a person wh o was “kicking” Daughenbaugh. She later testified as a
witness at Tyler ’s trial

. T.T. was deposed in connection with the trial of Russell and
Shorter. During her deposition, T.T. repeatedly stated that she did not remember who knocked Daughenbaugh to the ground or who kicked him when he was on the ground. She acknowledge d that she was interviewed by the police after the incident but did no t remember what she said to
them.4

The S tate called T.T. as a witness at the codefendants’ trial. At trial, however, T.T. repeated ly stated that she did not remember events surrounding the attack or what she told police on August 27. Because of
her “I do n’t remember” testimony at trial, the S tate sought to in troduce evidence of T.T.’s prior statements to the police through impeachment of T.T. and through the testimony of Youngblut. The district court allowed

t he impeachment and testimony. Russell challenges the admission of
T.T.’s out

- of

- court statements as hearsay.
2. Pretrial motions in l imine. Prior to trial, Russell filed two
motions in limine. He argued that “ [ s ] tatements made to law
enforcement officers were made outside court” an d were hearsay. He
further asserted that whe n a witness ’s prior out

- of

- court statements were not under oath and the witness could not remember the events or what
he or she said to l aw enforcement officers, the S tate is precluded from using the substantive content of the statements under State v

. Gilmore , 25 9 N.W.2d 846, 857 (Iowa 1977).
The S tate responded by arguing that under State v. Turecek , prior
inconsistent statements could be used to impeach a witness when the witness was not called for the primary purpose of gaining admission of hearsay. 456 N.W.2d 219, 225 (Iowa 1990). The S tate further argued that prior inconsistent statements might be used to refresh a witness’s
recollection under Iowa Rule of Evidenc e 5.803(5) (2014) . Finally, the
S tate noted that to the extent the prior statements were made under oath, such statemen ts were admissible under Iowa Rule of Evidence 5.804( a )(3). Prior to trial, the district court reserved ruling on the
motions in limine related to the substantive use of hearsay statement s made to police investigators.5

3. Initial hearing r egarding appointment of c ounsel. The S tate elected to call T.T. as a witness at Russell’s trial. Prior to her testimony
in the Russell trial , the prosecution advised the court that T.T. or her relatives indicated T.T. wanted a lawyer. As a result, the district court
he ld a hearing out side the presence of the jury. While T.T. denied seeking a lawyer, T.T.’s mother told the court
that T.T. was “kind of confused so I suggested that she get a lawyer.”
The district court asked T.T. whether she understood that she would be questioned by the lawyers and asked to give testimony under oath. T.T.
said she understood. Under the circumstances, t he district court declined to appoint counsel for T.T.
4

. Initial t rial t estimony of T.T. and a ppointment of c ounsel

. The
S tate called T.T. as a witness. T.T. remembered arriving at the scene
after dark and that she arrived with her cousin and friends. She stated
there were “ a lot ” of people present. She stated Tyler and Russell were there and Shorter was “down by the river.” T.T. also made courtroom
identific ations of Russell and Shorter. At this point, the prosecution t urned to examining T.T. specifically
about the attack on Daughenbaugh. T.T. testified that she remembered seeing Daughenbaugh arrive . She also recalled that Daughenbaugh walked by her cousin and bumped into her and that Daughenbaugh ended up o n the groun d. At this point, T.T. testified that she did not remember what happened after Daughenbaugh was on the ground . She repeatedly
testified she did not remember how Daughenbaugh got to the ground and did not remember what happened to him on the ground

. T.T. further testified that she did not remember talking to police
after the attack. When the prosecutor a sked whether T.T. had testified6

before under oath in the Tyler case, s he answered , “I guess.” When pressed again whether she had testified under oath before about the attack on Daughenbaugh, T.T. declared , “I don’t know what you are talking about.” At this point, the S tate asked f or the jury to be excused and once outside the presence of the jury , recommended that a lawyer be provided for T.T. According to the S tate, T.T. might have perjured herself already , but in any event, T.T. should be allowed to “consult with a lawyer before we go any further.” The district court agreed , counsel was appointed, and court adjou rned for the remainder of the day.
5. Further hearing outside the presence of the jury r egarding T.T. ’s

t estimony. The following Monday morning, T.T., though still under subpoena, did not appear. The district court issued a bench warrant for
her arrest and continued the trial until that afternoon. When T.T. appeared in the courtroom, the district court held a hearing outside th e presence of the jury.
The S tate asked T.T. a series of questions about her memory of the events of August 24

– 25. When asked by the S tate if she saw something happen to Daughenbaugh when he was on the ground, whether she saw somebody punch him, whether she testified about the matter previously under oath, and whether she gave a statement to police, T.T. repeatedly
dec lared, “I don’t remember.”
The S tate next confronted her with a page from the transcript of Tyler ’s trial where T.T. testified that “ s omebody punched” Daughenbaugh. T.T. declared that the transcript did not refresh her recollection and repeated that she did not remember her testimony in the Tyler trial.7

The S tate further asked T.T. about statements made to detectives at the Des Moines police station on August 27 , a few days after Daughenbaugh’s death. She stated she remembers talking to detectives,
but did not remember looking at a picture on Facebook or identifying people in t he picture for police. She was able to provide in

- court identification s of her ex

- boy friend, another person, and Russell from the
Facebook photograph. When asked if sh e had told detectives on August 27 that Russell was kicking the man in the parking lot, T.T. repeated ly stated , “I don’t remember.”
The S tate then confronted T.T. with passages from the written record of her August 27 interview: Q: And Detective Youngblut says, “Du ring our previous interview before you ever looked at th e Facebook or Instagram or Twitter or any of that stuff, you described a yellow shirt, red hat. Is that the same outfit you saw [on] the pe rson that you saw kick the victim? ” And what was yo ur answer? You said, “Yes, he kicked him,” right? Right? A: Yes, that is what it says right there. Q: That is what you said on A ugust 27 of 2013 to Detective Youngblut, right ? A: Yes. Q: Again on page six of 11, D etective Youngblut confirms for you, “ That’s the person you know as Vonnie Splurge?” And you said, “Yeah, ” is that correct? A: Yeah, it says right there. Q: On page seven of 11, you say at the end of your answer, “And then I sa w Vonnie kick him and I saw the man with the red hat and the bl ack shirt jump on his face, ” right? A: Yes. Q: That’s what you said in Au gust of 2013 but it is your testimony today that you don’t even remember saying that then? A: No, I don’t remember.

The S tate then asked T.T. a series of questions regarding tell ing the officers in August about a woman with red hair who eventually called police, but T.T. testified repeatedly that she did not remember.8 After making the above record, the S tate argued that T.T. had made herself unavailable in the proceedings and tha t the State could impeach her under Gilmore , 259 N.W.2d 846. The S tate proposed to admit portions of her deposition, to ask T.T. questions using those pieces of the police interview which she claim ed she could not remember, and to call Detective Youngblut who would testify about the August 27 statements made by T.T. The S tate further asserted that a prior
statement of a witness is admissible if it is one of identification of a person made after perceiving them. See Iowa R. Evid. 5.801 ( d )(1)(C).
Russell argued that under Gilmore , the only issue upon which T.T. could be impeached was whether she in fact remembered her prior statements to police. Further, Russell argued that admission of the actual prior statements would be excludable as unduly prej udicial under
Iowa Rule of Evidence 5.403. Russell argu ed that under Iowa Rule of
Evidence 5.801( d )(1)(C) , only identification of a person is not hearsay, but anything about the person after identification is inadmissible. In short,
the identification of Russel l from the photograph could be admitted, but not T.T.’s statement that Russell was one of the persons who was kicking Daughenbaugh. The district court held that it would admit deposition te stimony
under Iowa Rule of Evidence 5.804( b )(1). The district cou rt further found
that the S tate had laid appropriate foundation under Gilmore for the witness to be shown the statement that purported to be inconsistent with the material fact and not just lack of memory. The district court also
ruled that testimony abou t an identification of a person made after perceiving the person would be admissible as long as an adequate
foundation was laid under Iowa Rule of Evidence 5.801 ( d )(1)(C).9

6

. Continued testimony of T.T. before the j ury
. T.T. resumed her testimony before the jury. The S tate asked her whether she remembered seeing a woman with red hair at the scene or talking to police, which T.T. repeatedly answered with, “No, I don’t remember.” The S tate then impeach ed T.T. with her pri or statement. T.T. was presented with a “big stack of papers” and questioned as follows: Q: P a ge seven. Did you tell the police, “And then the lady with the red hair, she looked way, way over, she called the police , ” do you remember that? A: I don’t remember

. Q: Do you recognize that as being your statement of August 27, 2013? A: I don’t remember. Q: Page 13. Do you remem ber telling the police, “I got in my car. I t hink some people threw her phone in the water”? Do you remember that? A: I don ’t remember.

. . . . Q: During one of your interviews with the police, did you look at some pages and some photographs on F acebook? A: I don’t remember. Q: I am going to show you what’s been ma rked State’s Exhibit 56. You have seen that picture before, have you not? A: I noticed my ex

- boyfriend in the r e. Q: You have seen this pic ture before, right? A: Yeah. Q: And you have identified people in that picture before, haven’t you ? A: Yeah.
The S tate asked T.T. to identify persons from the photograph. T.T. identified several persons from the photo, including Russell. T.T. then
made an in

- court identification of Russell as being the same person she identified from the photo.
The S tate then rep eatedly asked T.T. if she remembered identifying

persons in the photo to police. T.T. repeatedly responded , “I don’t
remember.” The S tate then directed T.T.’s attention to the pages of a10 document describing questions asked by police and her answers. The questioning continued: Q: On page six again t he police confirm with you that person in the pi cture is Vonnie Splurge or Yarvon Russell, right? A: Yes. Q: On page seven the p olice talked to you about Vonnie as being th e man in the red hat

— the man

— what Von nie was doing to the white gentleman on the ground, right? A: Yeah. Q: But you don’t remember that at all? A: N o. Q: You don’t remember seeing it? A: No. Q: And you don’t rememb er telling the police this information ? A: I don’t remember.

7. Testimony of Detective Youngblut. The S tate also introduced the testimony of Detective Bradley Youngblut . Youngblut interviewed T.T. three times over the course of the afternoon of August 27, a couple days after the assault. Youngblut testified that T .T. was presented with a photograph of several person s from Facebook that were posted to a social website to determine whether any people that might be witnesses or suspects were c aptured in any of the photos. Youngblut testified as
follows: Q: The gentl emen that we s ee in position number three [in the Facebook photo graph] with the red hat and multi

- colored shirt on, wa s she able to identify that person to you? A: Yes. Q: Who did she identify that as being? A: Yarvon Russell.

. . . . Q: Did [T.T.] i d e ntify to you when you spoke with her about this picture what, i f any, participation any of those individuals had in the beating of Mr. Daughenbaugh? A: Yes she did.11 Q: What did she tell you? A: She described the out fit worn by Yarvon Russell during her interview and identified him a s kicking Mr. Daughenbaugh.

II
. Resolution of Common Issues. Russell asserts three issues nearly identical to those raised in
Shorter , 893 N.W

. 2d 65

. For the reasons expressed in Shorter , we conclude that there was sufficient evidence to support the verdict and
that any erroneous submission of the joint criminal conduct instruction did not undermine the jury’s verdict. We also conclude , as in Shorter , that Russell’s claim of ineffective assistance of counsel for his counsel’s failure to object to Perkins’s identification testimony cannot be decided on direct appeal and should be addressed in an action for postconviction
relief.

I II
. U se of P rior O ut
- of

- Court S tatements W hen W itness A sserts L ack of M emory at T rial.

A. Introduction. The fighting evidentiary issue is whether the questioning of T.T. by the S tate or the evidence presented by Detective Youngblut introduced inadmissible hearsay into the record. The question involves the interplay of various rule s of the Iowa Rules of Evidence. With respect to th e interrogation of T.T., Iowa Rule of
Evidence 5. 607 provides that any party may impeach its own witness. A prior inconsisten t statement is not hearsay when the witness makes a

t estimonial statement at trial, is subject to cross

- examination , and the prior inconsistent statement was made under oath. Id. r. 5.801( d )(1)(A). But what if the statements, as here, are not made under oath? 1 May the

1 As originally proposed, Federal Rule of Evidence 801(d)( 1)(A) provided that all prior inconsistent statements were substantive evidence and that there was no requirement that the inconsistent statements be made under oath in order to be admitted. 4 Michael H. Graham, Handbook of Federal Evidence § 607:3, at 22 8

– 29 (7th ed. 2012). Congress narrowed the provision, however, to include only statements given under oath subject to penalties of perjury. Id. at 229. We have adopted an approach in12 inconsistent statements that are ordinarily excludable as hearsay be admitted to impeach a witness even when the witness purports to have no memory of facts or the prior inconsistent statement? And, to what extent was the testimony of T.T. and Y oungblut admissible under Iowa
Rule of Evidence 5.801( d )( 1)( C ) , which provides that an out

- of

- court statement is not hearsay if it is “one of identification of a person made after perceiving the person.”
B
. Standard of Review. A district court’s decisio n to admit or exclude evidence is generally reviewed for abuse of discretion. State v

. Paredes , 775 N.W.2d 554, 560 (Iowa 2009 ). Hearsay rulings , however,
are reviewed for errors at law. Id. This standard of review extends to determining whether statem ents come within an exception to the general prohibition on hearsay evidence. Id. Reversal of a ruling which admits or excludes evidence is not necessary unless a substantial right of a party is affected. Iowa R

. Evid

. 5.103( a ). When nonconstitutional error occurs, we employ a harmless error analysis. State v. Sullivan , 679 N.W.2d 19, 29 (Iowa 2004). We presume prejudice and reverse unless the record affirmatively establishes
otherwise. State v. Newell , 710 N.W.2d 6, 19 (Iowa 2006)

. C
. Position s of the Parties. Russell asserts that the evidence about T.T.’s prior statements is inadmissible under Turecek , 456 N.W.2d
219. In Turecek , we held that the state is not allowed to call a witness expected to give unfavorable testimony and then attempt to impeach the
witness with inadmissible prior inconsistent statements under Iowa Rule
of Evidence 5.607. Id. at 225. According to Russell, Turecek stands for

___________________________ our rules of evidence similar to the federal rule as modified by Congr ess. See Iowa R. of Evid. 5.801( d )(1)(A).13 the proposition that the state cannot call a witness with the primary purpose of getting into evidence prior inconsistent statements through
the guise of impeachment. In further support of his position, Russell cites State v

. Trac y , 482 N.W.2d 675 (Iowa 1992) , and State v. Wixom , 599 N.W.2d 481 (Iowa Ct. App. 1999). In Trac y , we rejected an effort by the prosecution to put on the stand and impeach a witness who recanted earlier statements. 482 N.W.2d at 679. In Wixom , the court of appeals rejected testimony from
officers who testified about a witness’s prior statements as “ plainly hearsay.” 599 N.W.2d at 48 5

. Applying these principles, Russell argues that the S tate’s effort to impeach T.T., and the t estimony of Detective Youngblut, was impermissible. Russell emphasizes that the S tate knew from T.T.’s deposition that T.T. could no t remember what happened to the victim nor
could she recall what she told law enforcement officers afterw a rds. She was obviously a reluctant witness, having failed to appear at both the trial of Tyler and Russell . According to Russell, the S tate’ s determination to proceed was for the primary purpose of introducing her prior hearsay
statements into the record. Russell recognizes that Turecek applies only if the impeachment
evidence is otherwise inadmissible. 456 N.W.2d at 225. Antic ipating the
S tate’s argument, R ussell asserts that the prior inconsistent statements
are not admissible under Gilmore , 259 N.W.2d 846 . In Gilmore , we heard a case where the state sought to introduce evidence of prior inconsistent statements to impeach its witne ss when the witness asse rts lack of memory at trial. Id. at 850.
Russell concedes that under Gilmore and Iowa Rule of Evidence
5.607 , any party may impeach its own witness. Id. at 852. When the14 witness asserts lack of memory, however, Russell asserts that the S tate cannot introduce the substance of the prior statement. According to Russell, under Gilmore the only fact to be impeached is whether the witness remembers the statements made in the prior statement. See id.
at 854. Under the circumstances , Russell argues that Gilmore allows the
S tate to try to make the witness admit that she remembered the underlying facts, but prohibits the S tate from reading the prior
statements into evidence. Russell also recogniz es that under Iowa Rule of Evidence
5.8 01( d )(1)( C ), a prior identification of a witness is not hearsay. Russell argues, however, that the testimony of T.T. does not go to his identity, but instead to the underlying facts of the crime, namely, that Russell
kicked the victim.
The State first co unters Russell’s Turecek claim by asserting that T.T.’s testimony was ident ification evidence under Iowa Rule of Evidence 5.801( d )(1)(C) , defining such evidence as not hearsay. According to the
S tate, T.T.’s identification testimony is admissible for any purpose because she testified at trial and was subject to cross

- examination. The State further contends that T.T.’s testimony is admissible
under Gilmore , 259 N.W.2d 846

. According to the S tate , T.T. was warned about her p r ior statements and was afforded an opportunity by the S tate to explain them. The S tate argues that T.T.’s prior statements to police and in her deposition we nt directly to facts in issue: whether she saw Russell participating in the assault of Daughenbaugh. Nothing in
Gilmore , according to the S tate, limits the use of her prior statements to impeachment. Finally, the State contends that the tes timony of T.T. was not offered solely or primarily for the purpose of introducing the prior15

inconsistent statement and that as a result the Tur e cek rule does not apply. See 456 N.W.2d at 225. The State points out that T.T. testified at trial that people were jumping on Daughenbau g h and that Daughenbaugh struggled to defend himself. T.T., according to the S tate, thus testified that Daug henbau g h was conscious initially while on the ground befor e he received sub sequent blows.
D. Discussion.
1. Application of Turecek

. Russell urges that the primary purpose of calling T.T. to the stand was to seek to impeach her with inadmissible hearsay through prior inconsistent statements not made under oath. 2
The S tate contends that under Turecek , the court should examine the proffered testimony of a witness as a whole in making the determination
of whether the S tate has called the witness as a subterfuge to gain the
admission of othe rwise inadmissible testimony. See id. at 225. There is authority for this proposition , although some cases suggest a different

test. See generally 7 Laurie Kra tky Dor é, Iowa Practice Series TM , Evidence § 5.607:1 , 560

– 61 n.3 ( 2016

– 20 17 ed. ) [hereinafter Doré] (discussing subterfuge theory in Tur e cek and related cases); 4 Michael H. Graham, Handbook of Federal Evidence § 607: 3 , 230

– 32, 234

– 35 (7th ed.
2012 ) (discussing primary

- purpose test and other potential appro aches). But even accepting th e S tate’s approach to Turecek , it is hard to
see what the S tate sought to accomplish by calling T.T. as a witness
other than to gain admission of T.T.’s prior statement that Russell had kicked Daughenbaugh through an impeachme nt effort. The S tate knew

2 Russell does not challenge the admission of T.T.’s out

- of

- court statements as a violation of the Iowa or Federal Confrontation Clause. The United States Supreme Court, over a dissent, rejected such a claim unde r the United States Constitution in United States v. Owens , 484 U.S. 554, 559

– 60, 108 S. Ct. 838, 842

– 43 (1988).16

from T.T.’s deposition , and from testimony outside the presence of the jury at Russell’s trial , that T.T. was going to testify that she did not remember what happened to Daughenbaugh after she saw him on the ground . She was further going to testify that she did not remember what she told police during her August interviews. The bulk of the S tate’s examination of T.T. was oriented toward impeaching her with her prior

statements. Based on our review of T.T.’s testi mony, we conclude that the primary purpose of calling T.T. was to impeach her with her prior

statements

— and get into the record her prior declaration that Russell kicked Daughenbaugh

— and not to establish other facts. Indeed, she offered very little eviden ce into the record beyond testifying that she
arrive d at the scene on the night in question , saw Daughenbaugh brush past her cousin in an offensive way, and then saw D aughenbaugh on the ground. This testimony was of little use in prose cuting Russell for t he
crime. The remaining question is whether any of the inconsistent statements identified in the impeachment of T.T. by the S tate were admissible on any grounds. The Turecek rule is a shield designed to prevent the introduction of otherwise inadmissible evidence, but it cannot be used to prevent the S tate from using admissible evidence to impeach a witness. See 456 N.W.2d at 225. Prior statements of a witness that are admissible as substantive evidence may be freely employed to impeach a w itness on dire ct examination. State v. Nance , 533 N.W.2d 557, 561 (Iowa 1995) . We must therefore turn t o the theories advanced by the S tate regarding the admissibility of T.T.’s prior
statements and the t estimony of Detective Youngblu t.17

2. Admission under Gilmore

. The S tate suggests that the hearsay statements of T.T. made to the police on August 27 are admissible impeachment under Gilmore , 259 N.W.2d 846. In Gilmore , we considered the proper manner of impeaching a witness who testified that he did not remember the underlying facts of a crime. Id. at 850. In Gilmore , we stated that the witness can be examined about the existence of a prior
statement in an e ffort to refresh the witness’s recollection. Id. at 854.
As stated in Gilmore , it is clear that a party may impeach its own
witness. Id. at 852; see also Iowa R. Evid. 5. 607. In Gilmore , we held
that
where a witness makes a testimonial statement and then does not remember a prior inconsistent statement he made dealing with the same facts or is evasive as to that statement

. . . either party [may] introduce the prior inconsistent statement into evidence [ if certain fou ndation prerequisites are met ]

. Id. at 8 5 7. We further explained, however, that there was “ no testimonial statement” when the witness did not remember the underlying facts that were the subject of the prior statement. Id.
When a witness testifies that he or she does not remember the underlying facts, the only subject to be impeached is the witness’s
memory o r ability to recollect. Id. As a result, “[t]he S tate was free to try to make her admit she remembered the underlyi ng fa cts bearing on the issue .

. . but was not free to read into evidence the prior statement.” Id. We thus conclude that Gilmore does not provide a basis for admission of the prior statem ents made by T.T.
in this case.
3. Admission as p rior i dentification under Iowa Rule of Evidence 5.801( d )(1)(C). T h e S tate further contends evidence that T.T. told police that Russell kicked Daughenbaugh

— through both cross

- examination of18 T.T. and through the t estimony of Detective Youngblut

— was a nonhearsay identif ication of Russell under Iowa Rule of Evidence 5.801( d )(1)(C). This rule at the time of trial provided that testimony at trial is not hearsay if it relates to “identification of a person made after perceiving the person.” Id. The requirements under the rule are ( 1) that the person making the out

- of

- court identification must testify at trial and thus be subject to cross

- examination on the identification, and ( 2) the statement must have been made after perceiving the person. Sta te v.
Mann , 512 N.W.2d 528, 535 (Iowa 1994); s ee also Doré, § 5.801(8) , at
843

– 44

. We have applied Iowa Rule of Evidence 5.801( d )(1)(C) in few cases. In Mann , we held that a police officer could testify that the witness
iden tified the defendant from a mu g

- shot book prior to trial whe n the
witness testified at trial and was available for cross

- examination. 512 N.W.2d at 534; see also United States v. Thomas , 41 M.J. 732, 735 (N

- M. Ct. Crim. App. 1994) (holding United States military out

- of

- court identifications rule restricted to identifications conducted in the presence of law enforcement and involving a lineup, showup, or photo array); Swafford v. State , 5 33 So. 2d 270, 276 (Fla. 1988) (holding that
“identification of a person after perceiving him ” requires the declarant to have just seen the individual either in person or in a photograph)

. The record reveals that T.T. was shown Facebook photographs of

per sons who were in the area of the crime on the evening of August 24

– 25. T.T. was given a photograph from which to “perceive” Russell. She identified Russell as one of the persons “kicking” Daughenbaugh. We
think it clear that her identification of Russel l as a person kicking Daughenbaugh, based on the Facebook photograph, is nonhearsay
under Io wa Rule of Evidence 5. 801( d )(1)(C). See Porter v. United States ,19 826 A.2d 398, 410 (D.C. 2003) (holding details of the offense admissible along with identification to the extent necessary to make identification understandable to jury); accord State v. Stratton , 161 P.3d 448, 450 (Wash

. Ct. App. 2007). Given the factual record, the availability of T.T.
for cross

- examination, and our approach in Mann , we find the cou rt properly admitted the testimony of Youngblut regarding T.T.’s prior
identification of Russell. See 512 N.W.2d at 534. We also find no infirmity in the prose cution’s interrogation of T.T.
in connection with the identification. As stated above, her pri or identification is admissible, thereby avoiding a Turecek or Gilmore problem. Even if we were to extend Ture cek to include occasions in
which the prosecution calls a witness solely to impeach her based on a prior admissible identification, such error wo uld obviously be harmless in light of the testimony of Youngblut. While under Gilmore , impeachment of a witness with n o memory is ordinarily limited, T.T.
herself established the foundation for admission of the evidence when she admitted that she provided the prior statement and admitted that she identified Russell, even though she testified that she had no current
memory. Some of the nonidentificatio n impeachment of T.T. may have gone beyond the limits of Gilmore and was in admissible as nonhearsay or under any other exception to the hearsay rule. For instance, the impeachment of T.T. based upon the conduct of the woman with red
hair

— a reference to Mo nica Perkins

— is not identification testimony. Nonetheless, this testimony was merely cumulative of the evidence at

tr ial and was therefore harmless.20

I V. C onclusion
. For the above reasons, the decis ion of the court of appeals is
vacated and the judgment of the district court is affirmed. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.