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,

Appellant.

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 lacking 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 Mullins, 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 asserted there was insufficient 

evidence to support his conviction based on principle, 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 the other 

two theories, his conviction should be reversed. See State v. Heemstra, 

721 N.W.2d 549, 558 (Iowa 2006). Russell additionally contended that 

his attorney provided ineffective assistance of counsel for failing to object 

to the identification testimony of Monica Perkins as going beyond the 

scope of the minutes of testimony. Finally, Russell asserted 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 asserted that testimony from a police detective that the minor 

witness identified Russell in an unsworn prior statement as “kicking” 

Daughenbaugh was inadmissible hearsay.

We transferred 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. We 

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 

Williams 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 codefendants, a 
3

jury convicted Russell and Shorter of second-degree murder. Williams, 

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 seventeen year old, placed Russell 

in the crowd that assembled around Daughenbaugh. Monica Perkins 

testified that Russell “stomped” 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 guilty 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 who 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 acknowledged that she was interviewed 

by the police after the incident but did not remember what she said to 

them.
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The State called T.T. as a witness at the codefendants’ trial. At 

trial, however, T.T. repeatedly stated that she did not remember events 

surrounding the attack or what she told police on August 27. Because of

her “I don’t remember” testimony at trial, the State sought to introduce

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 

the impeachment and testimony. Russell challenges the admission of 

T.T.’s out-of-court statements as hearsay.

2. Pretrial motions in limine. Prior to trial, Russell filed two 

motions in limine. He argued that “[s]tatements made to law 

enforcement officers were made outside court” and were hearsay. He 

further asserted that when 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 law enforcement officers, the State is precluded from 

using the substantive content of the statements under State v. Gilmore, 

259 N.W.2d 846, 857 (Iowa 1977).

The State 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 State further argued 

that prior inconsistent statements might be used to refresh a witness’s 

recollection under Iowa Rule of Evidence 5.803(5) (2014). Finally, the 

State noted that to the extent the prior statements were made under 

oath, such statements 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 statements 

made to police investigators.
5

3. Initial hearing regarding appointment of counsel. The State 

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 

held a hearing outside 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, the district court 

declined to appoint counsel for T.T.

4. Initial trial testimony of T.T. and appointment of counsel. The 

State 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 

identifications of Russell and Shorter.

At this point, the prosecution turned 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 on the ground.

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 asked whether T.T. had testified 
6

before under oath in the Tyler case, she 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 State asked for 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 State, 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 adjourned for the remainder of the day.

5. Further hearing outside the presence of the jury regarding T.T.’s 

testimony. 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 the 

presence of the jury.

The State asked T.T. a series of questions about her memory of the 

events of August 24–25. When asked by the State 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 

declared, “I don’t remember.”

The State next confronted her with a page from the transcript of 

Tyler’s trial where T.T. testified that “somebody 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.
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The State 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 the picture for police. She was able to provide in-court 

identifications of her ex-boyfriend, another person, and Russell from the 

Facebook photograph. When asked if she had told detectives on 

August 27 that Russell was kicking the man in the parking lot, T.T. 

repeatedly stated, “I don’t remember.”

The State then confronted T.T. with passages from the written 

record of her August 27 interview:

Q: And Detective Youngblut says, “During our 

previous interview before you ever looked at the 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 

person that you saw kick the victim?”

And what was your 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 August 27 of 2013 to 

Detective Youngblut, right? A: Yes.

Q: Again on page six of 11, Detective 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 saw Vonnie kick him and I saw the man 

with the red hat and the black shirt jump on his face,” right? 

A: Yes.

Q: That’s what you said in August of 2013 but it is 

your testimony today that you don’t even remember saying 

that then? A: No, I don’t remember.

The State then asked T.T. a series of questions regarding telling 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 State argued that T.T. had 

made herself unavailable in the proceedings and that the State could 

impeach her under Gilmore, 259 N.W.2d 846. The State proposed to 

admit portions of her deposition, to ask T.T. questions using those pieces 

of the police interview which she claimed she could not remember, and to 

call Detective Youngblut who would testify about the August 27 

statements made by T.T. The State 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 prejudicial under 

Iowa Rule of Evidence 5.403. Russell argued 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 Russell 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 testimony 

under Iowa Rule of Evidence 5.804(b)(1). The district court further found 

that the State 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 about 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 jury. T.T. resumed her 

testimony before the jury. The State 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 State then 

impeached T.T. with her prior statement. T.T. was presented with a “big 

stack of papers” and questioned as follows: 

Q: Page 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 remember telling the police, “I got 

in my car. I think 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 Facebook? 

A: I don’t remember.

Q: I am going to show you what’s been marked State’s 

Exhibit 56. You have seen that picture before, have you not? 

A: I noticed my ex-boyfriend in there.

Q: You have seen this picture before, right? A: Yeah.

Q: And you have identified people in that picture 

before, haven’t you? A: Yeah.

The State 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 State then repeatedly asked T.T. if she remembered identifying 

persons in the photo to police. T.T. repeatedly responded, “I don’t 

remember.” The State then directed T.T.’s attention to the pages of a 
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document describing questions asked by police and her answers. The

questioning continued:

Q: On page six again the police confirm with you that 

person in the picture is Vonnie Splurge or Yarvon Russell, 

right? A: Yes.

Q: On page seven the police talked to you about 

Vonnie as being the man in the red hat—the man—what 

Vonnie was doing to the white gentleman on the ground, 

right? A: Yeah.

Q: But you don’t remember that at all? A: No.

Q: You don’t remember seeing it? A: No. 

Q: And you don’t remember telling the police this 

information? A: I don’t remember.

7. Testimony of Detective Youngblut. The State 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 persons from Facebook that were posted to a social 

website to determine whether any people that might be witnesses or 

suspects were captured in any of the photos. Youngblut testified as 

follows:

Q: The gentlemen that we see in position number 

three [in the Facebook photograph] with the red hat and 

multi-colored shirt on, was 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.] identify to you when you spoke with her 

about this picture what, if any, participation any of those 

individuals had in the beating of Mr. Daughenbaugh? 

A: Yes she did.
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Q: What did she tell you? A: She described the outfit 

worn by Yarvon Russell during her interview and identified 

him as 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.

III. Use of Prior Out-of-Court Statements When Witness

Asserts Lack of Memory at Trial.

A. Introduction. The fighting evidentiary issue is whether the 

questioning of T.T. by the State or the evidence presented by Detective 

Youngblut introduced inadmissible hearsay into the record.

The question involves the interplay of various rules of the Iowa 

Rules of Evidence. With respect to the interrogation of T.T., Iowa Rule of 

Evidence 5.607 provides that any party may impeach its own witness. A 

prior inconsistent statement is not hearsay when the witness makes a 

testimonial 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 

 1As 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 228–29 (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 in 
12

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 Youngblut 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 decision 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 statements 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. Positions 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 Congress. 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. Tracy, 482 

N.W.2d 675 (Iowa 1992), and State v. Wixom, 599 N.W.2d 481 (Iowa Ct. 

App. 1999). In Tracy, 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 485.

Applying these principles, Russell argues that the State’s effort to 

impeach T.T., and the testimony of Detective Youngblut, was 

impermissible. Russell emphasizes that the State knew from T.T.’s 

deposition that T.T. could not remember what happened to the victim nor 

could she recall what she told law enforcement officers afterwards. She 

was obviously a reluctant witness, having failed to appear at both the 

trial of Tyler and Russell. According to Russell, the State’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. Anticipating the 

State’s argument, Russell 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 witness when the witness asserts 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 the 
14

witness asserts lack of memory, however, Russell asserts that the State 

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 

State to try to make the witness admit that she remembered the 

underlying facts, but prohibits the State from reading the prior 

statements into evidence.

Russell also recognizes that under Iowa Rule of Evidence

5.801(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 counters Russell’s Turecek claim by asserting that 

T.T.’s testimony was identification evidence under Iowa Rule of Evidence

5.801(d)(1)(C), defining such evidence as not hearsay. According to the 

State, 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 State, T.T. was warned 

about her prior statements and was afforded an opportunity by the State 

to explain them. The State argues that T.T.’s prior statements to police 

and in her deposition went directly to facts in issue: whether she saw 

Russell participating in the assault of Daughenbaugh. Nothing in 

Gilmore, according to the State, limits the use of her prior statements to 

impeachment.

Finally, the State contends that the testimony of T.T. was not 

offered solely or primarily for the purpose of introducing the prior 
15

inconsistent statement and that as a result the Turecek 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 Daughenbaugh and that 

Daughenbaugh struggled to defend himself. T.T., according to the State, 

thus testified that Daughenbaugh was conscious initially while on the 

ground before he received subsequent 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 State contends that under Turecek, the court should examine the 

proffered testimony of a witness as a whole in making the determination 

of whether the State has called the witness as a subterfuge to gain the 

admission of otherwise inadmissible testimony. See id. at 225. There is 

authority for this proposition, although some cases suggest a different 

test. See generally 7 Laurie Kratky Doré, Iowa Practice SeriesTM,

Evidence § 5.607:1, 560–61 n.3 (2016–2017 ed.) [hereinafter Doré]

(discussing subterfuge theory in Turecek 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 approaches).

But even accepting the State’s approach to Turecek, it is hard to 

see what the State 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 impeachment effort. The State knew 

 2Russell 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 under 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 State’s 

examination of T.T. was oriented toward impeaching her with her prior 

statements.

Based on our review of T.T.’s testimony, 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 evidence into the record beyond testifying that she 

arrived at the scene on the night in question, saw Daughenbaugh brush 

past her cousin in an offensive way, and then saw Daughenbaugh on the 

ground. This testimony was of little use in prosecuting Russell for the 

crime.

The remaining question is whether any of the inconsistent 

statements identified in the impeachment of T.T. by the State 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 State 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 witness on direct examination. State v. Nance, 

533 N.W.2d 557, 561 (Iowa 1995). We must therefore turn to the 

theories advanced by the State regarding the admissibility of T.T.’s prior 

statements and the testimony of Detective Youngblut.
17

2. Admission under Gilmore. The State 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 effort 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 foundation prerequisites 

are met]. 

Id. at 857. 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 or ability to recollect. Id. As a result, “[t]he State was free 

to try to make her admit she remembered the underlying facts 

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 statements made by T.T. 

in this case.

3. Admission as prior identification under Iowa Rule of Evidence

5.801(d)(1)(C). The State further contends evidence that T.T. told police 

that Russell kicked Daughenbaugh—through both cross-examination of 
18

T.T. and through the testimony of Detective Youngblut—was a 

nonhearsay identification 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. State v. 

Mann, 512 N.W.2d 528, 535 (Iowa 1994); see 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 

identified the defendant from a mug-shot book prior to trial when 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, 533 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 

persons 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 Russell as a person kicking 

Daughenbaugh, based on the Facebook photograph, is nonhearsay 

under Iowa Rule of Evidence 5.801(d)(1)(C). See Porter v. United States, 
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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 court 

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 prosecution’s interrogation of T.T. 

in connection with the identification. As stated above, her prior 

identification is admissible, thereby avoiding a Turecek or Gilmore

problem. Even if we were to extend Turecek to include occasions in 

which the prosecution calls a witness solely to impeach her based on a 

prior admissible identification, such error would obviously be harmless 

in light of the testimony of Youngblut. While under Gilmore,

impeachment of a witness with no 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 nonidentification impeachment of T.T. may have gone 

beyond the limits of Gilmore and was inadmissible 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 Monica Perkins—is not identification testimony. 

Nonetheless, this testimony was merely cumulative of the evidence at 

trial and was therefore harmless.
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IV. Conclusion.

For the above reasons, the decision 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.