### IN THE SUPREME COURT OF IOWA

No. 14

– 1239
Filed April 14 , 2017

STATE OF IOWA , Appellee ,

vs. JAMES ALON SHORTER , 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 lacking substantial evidence. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

Jennifer J. Bonzer of Johnson & Bonzer, P.L.C., Fort Dodge , for appellant

.

Thomas J. Miller, Attorney Gene ral, Louis S. Sloven, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt and Stephanie Cox, Assistant County Attorneys , for appellee.2

APPEL , Justice
. Richard Daughenbaugh died after he was assault ed by a group of people on th e banks of the Des Moines Rive r in Des Moines. Four people

— Kent Tyler, James Shorter, Yarvon Russell, and Leprese
Williams

— were originally charged with murder in connection with Daughenbaugh’s death. Tyler was tried separately from the others and

was con victed of second

- degree murder for his role in pu nching Daughenbaugh in the face prior to the group assault whic h caused Daughenbaugh’s death.
In State v

. Tyler , we held the evidence in Tyler’s case did not support the trial court’s instruction on joint criminal conduct. 873 N.W.2d 741, 7 53 (Iowa 2016). Because we could not determine whether the jury convicted him under the tainted instruction or under the legally
sup ported theory that he acted as a princip al or aider and abettor , we reversed the convic tion and remanded the case to the district court. Id.
at 75 3

– 5 4. In this case, as in Tyler , a j ury convicted Shorter of second

- degree murder. On appeal, S horter claim ed that there was insufficient evidence to support the jury’s verdict under any of the S tate’s theories. Shorter
also claim ed that if there was insufficient evidence on the joint criminal conduct theory but sufficient evidence as a principal or aider and
abettor , the conviction should be reversed under Tyler , 873 N.W.2d 741.
Shorter additionally claim ed that his counsel provided ineffective
assistance b y failing to object to the testimony of a witness that identified
Shorter when the minutes of testimony did not state that she would
make such an identification. Shorter further asser t ed that once this tainted evidence was admitted, his counsel sh ould have moved for a
mistrial. Shorter also claimed that the district court erred when it and3 counsel discussed how to respond to questions posed by the jury when Shorter was not present. F inally, Shorter claimed that his trial counsel gave ineffective assistance for failure to request a stock jury instruction on eyewitness identification. The court of appeals reversed Shorter’s conviction. Relying on Tyler , the court of appeals concluded that although there was sufficient evidence to support the conviction on the gro und that Shorter was a principal in the murder or aided and abetted the murder, there was insufficient evidence to support the joint criminal conduct instruction.
See 873 N.W. 2d at 753. We granted further review. For the reasons expressed below, we vacate the judgment of the court of appeals and affirm Shorter’s
conviction

. I. Factual and Procedural Background.
A. Evidence at T rial. The S tate offered evidence at Shorter’s trial which showed that on the evening of August 24, 2013, a group of teenagers and young adul ts began drinking and partying in a parking lot at the intersection of Second and Center Street near the Wells Fargo
Arena and the Des Moines River . Witnesses e stimated the size of the group was between thirty to fifty people

. Daughenbaugh arrived at the location and parked in the parking lot. He appeared drunk when he arrived. He approached the group and began partici pating in drinking and dancing.
A short time after Daughenbaugh arrived, Raymond Shorter, a cousin of the defendant here, testified that Tyler struck Daughenbaugh, declaring , “Don’t touch me ” or “Don’t fucking touch me.” Daughenbaugh fell to the ground. At the time of the assault, Monica Perki ns was in a parked car in the vicinity. Perkins testified that after Daughenbaugh fell4 to the ground, a group assembled around Daughenbaugh and jum ped and stomped on his face. Perkins exited her vehicle and attempted to protect Daughenbaugh by lying acro ss his body. When the group appeared to be about to attack Perkins, her boyfriend, Isaiah Berry, attempted to intervene. He was assaulted by the group and suffered minor injuries. While the group was assaulting Berry, Perkins was able to get off Daughen baugh’s body and call 911. Two young women wrestled the phone from Perkins a nd threw it toward
the river. About two or three minutes after Perkins ’ s 911 phone call,
Des Moine s police arrived at the scene.
P erkins promptly took the police to Daughenbaugh. He moved slightly but did not answer questions. Paramedics soon arrived and Daughenbaugh was taken to a Des Moines hospi tal. Daughenbaugh died on the morning of August 25. At trial, the medical examiner testified that Daughenbaugh had mul tiple blunt force injuries to his head
and torso. The medical examiner testified the cause of death was tears
to t he mesenteric artery

— the artery that supplies blood to the large and
small intestine s

— which caused internal bleeding resulting in death.
At trial, the fighting issue was whether Shorter was involved in the
assault. The S tate sought to prove Shorter was one of the participants in the assault that led to Daughenbaugh’s death, while the defense, in addition to attacking the S tate’s proof, sough t to establish Shorter was in the vicinity but not among the people who gathere d around Daughenbaugh. The State called Perkins to support its case. Perkins was questioned at length about whether she could identify who was involved
in the assault on Daughenbaugh. Perkins testified that she remembered identifying one person from an array of photos on the morning of5
August 25, but could not provide a description of the person she
identified. When asked by the prosecutor if she could now identify the
p erson she picked in the earlier photo lineup, she stated that she did not remember. When pressed by the prosecutor, however, Perkins testified that Shorter was one of the persons she saw stomp on Daughenbaugh.
On cross

- examination, Perkins admitted that in an earlier deposition, she was unable to identify any of the defendants as having been involved in the assault on Daughenbaugh.
B

. B. , who was seventeen in 2013, testified she saw Shorter in the crowd that formed around Daughenbaugh. B.B. testified tha t she left
when the crowd formed. B.B. further testified Shorter contacted her shortly after the night of the murder and asked B.B. to tell the police that
Shorter had been with B .B. at a pedestrian bridge some distance away
from the site o f the assault o n Daughenbaugh. On cross

- examination,
B.B. admitted that she had given inconsistent answers in an earlier deposition and that she had been drinking vodka continuously for about three or four hours prior to the murder.
L

. S. , who was fifteen at the time of the murder, testified she saw Shorter kick Daughenbaugh. She testified that after the a ssault on Daughenbaugh began, she left the scene. Like B.B., L.S. too had been drinking on the evening of the assault and was impeached by the defense regarding incon sistent statements she made to the police and in a prior deposition. T.T., another minor witness, claimed at trial to not remember many of the events on the night of the murder. She did, however, testify Shorter was not involved in the assault on Daughen baugh. Detective Timothy Peak testified as a rebuttal witness for the S tate. Peak testified that after police arrived at the scene, Shorter told him that6 he had gone up to Daughenbaugh and kicked him while he was on the ground to check to see if Daughenb augh was okay. The defense offered evidence that Shorter was not a participant in the assault. Berry testified that he knew Shorter and that Shorter was not in the crowd surrounding Daughenbaugh. Berry further testified that he was positive that Shorter was not one of the people who assaulted Berry after his girlfriend had tried to intervene on Daughenbaugh’s behalf. Raymond Shorter also testified at trial. He stated Shorter was near the pedestrian bridge at the time the assault began and was not invol ved
in it. Similarly, Jontay Williams testified that Shorter was not involved and that when the assault broke out, he was talking to a girl d own the
hill near the water. Williams testified that when the fight broke out, he
called for Shorter and Russe l l and they immediately left in his car. Finally, N a keba Blair

— a friend of Shorter and Russel l

— testified they

we re not involved in the fight.
B. Jury Instructions and Verdict
. The district court instructed the jury on first

- and second

- degree murder. On second

- degree murder, the jury was instructed that the defen dant could be found guilty if the jury found “the defendant, individually or throu gh joint criminal conduct or through aiding and abetting another, assaulted Richard Daughenbaugh,” Daughenbaugh di ed as a result of the assault, and

“ [ t ] he defendant, individually or through joint criminal conduct or someone he aided and abetted, acted with malice aforethought.” On joint criminal conduct, the jury was instructed that “[w]hen two
or more persons act t ogether and knowingly commit a crime, each is responsible for the other’s acts done in furtherance of t he commission of
the crime. ” Among the elements that the S tate had to prove in the case7

to sh ow joint criminal conduct, the S tate had to show that “ [ w ] h ile furthering the crime of assault, the other person or persons committed
the different crime of murder .” The jury retu rned a general verdict finding Shorter guilty of
second

- degree murder. The district court denied Shorter’s motion for a
new trial and entered judgment. Shorter appealed.
C. Issues Presented
. On appeal, Shorter claims the evidence at trial was insufficient to suppo rt his conviction as a principal , an aider
and abettor , or under a joint criminal conduct theory and the submission
of these the ories to the jury was erroneous . Shorter also claims trial counsel provided ineffective assistance for failing to object and request a mistrial when Perkins testified that she saw Shorter stomping on Daughenbaugh when the minut es of testimony did not state that Perkins
would make an identification. Shorter further claims he is entitled to a
new trial because the district court and counsel discussed how to respond to questions posed by the jury when Shorter was no t present.
Fin ally, Shorter asserts his trial counsel gave ineffective assistance by failing to request a stock jury instruction on eyewitness identification.
II. Challenge to Verdict Based on Sufficiency of the Evidence.
A. Standard of Review. Challenges to suffici ency of the evidence
are review ed fo r correction of errors a t law. State v

. Hearn , 797 N.W.2d 577, 579 (Iowa 2011). We will affirm a trial court’s denial of a motion for judgment of acquittal if the record contains substantial evidence supporting the def endant’s conviction. State v. McCullah , 787 N.W.2d 90, 93 (Iowa 2010). On a motion for a new trial, the district court uses a weight

- of

- the

evidence test. State v. Nitcher , 720 N.W.2d 547, 559 (Iowa 2006); State v.
Reeves , 670 N.W.2d 199, 202 (Iowa 2003). This test is more searching8 than the sufficiency

- of

- the

- evidence test, involves questions of credibility,
and requires the district court to determine whether more credible evidence supports one side or the other. State v. Ary , 877 N.W.2d 686,
706 (Iowa 2016); Nitcher , 720 N.W.2d at 559. We have cautioned trial courts, however, “to exercise this discretion carefully and sparingly”
because of the deference owed to the jury’s credibility determinations.
State v

. Ellis , 578 N.W.2d 655, 659 (Iowa 199 8). We review the trial court’s ruling on a motion for a new trial for abuse of discretion. Nitcher , 720 N.W.2d at 559 ; Reeves , 670 N.W.2d at 202

. B. Position s of the Parties.
1. Sufficiency of the e vidence as p rincipal . S horter first challenges the sufficiency of the evidence as a principal. Shor ter begins by attacking the eye witness testimony of Perkins and L.S. He directs our
attention to State v

. Henderson , 27 A.3d 872 (N.J. 2011). In Henderson , the New Jersey Supreme Court canvas s ed the evolving scien tific literature related to eye witness testimony that raised questions about its reliability. Id. at 896

– 910

. Because of the reliability issues, the New Jersey Supreme Court imposed lim itation s on the admission of
eye witness testimony in New Jersey courts under th e due process clause
of the New Jersey Constitution

. Id. at 928

. Turning to the facts of this case, Shorter notes that Perkins was unable to identify Shorter as one of the attackers at her pretrial deposition. With respect to L.S. , Shorter emphasizes that she admitted she had been drinking vodka for three or four hours and was very intoxicated at the time of the attack. In contrast, Shorter notes that Berry, Raymond Shorter, Blair, and T.T. all testified that Short er was not involved in the assault on Daughenbaugh.9 Further, Shorter asserts there is no evidence that he directly contributed to the death of Daughenbaugh. Shorter notes that the coroner testified that Daughenbaugh died as a result of internal b le e ding to the abdominal cavity cause d by tears to the mesentery

. Shorter , however, points out that Perkins testified Shorter stomped on Daughenbaugh’s head. The coroner testified that Daughenbaugh suffered head injuries before the abdominal injuries and that th e injuries to the head did not directly contribute to Daughenbaugh’s death. There is no evidence, according to Shorter, that he kicked Daughenbaugh in
the abdomen

. After Daughenbaugh fell to the ground, about fifteen people started to kick and stomp him. There was no evidence, however,
that Shorter ’s kick incapac itated him or led to his death.
The State counters that under Iowa Code section 703.1 (2013), “A ll persons concerned in the commission of a public offense, whether they directly comm it the act c onstituting the offense or aid and abet its commission, shall be charged, tried and punished as principals.” Thus, according to the S tate, there is no difference between liability as a principal and liability as an aider or abettor. See State v

. Black , 2 8 2 N.W.2d 733, 735 (Iowa 1979). On the question of causation, the S tate asserts the convictions may be sustained on a theory of aggregate causation. In support of its argument, the State cites Paroline v

. United States , 572 U.S. ___, 134
S. Ct. 1710 (2014). In Paroline , the Supreme Court noted “it would be
anomalous to t u r n away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the
harm.” Id. at ___, 134 S. Ct. at 1724. Thus, accor ding to the S tate, if the
evidence is sufficient to show that Shorter took part in the assault, the
S tate does not have to prove which kick delivered the fatal blow.10 With respect to identity, the S tate agrees that it has the burden of establishing that Sh orter participated in the assault. The State notes that Perkins identified Shorter as an assailant in a pretrial pho to lineup
as well as at trial. Further, Shorter’s attempt to persuade B.B. to concoct a story establishing an alibi and his admission to D etective Peak that he kicked Daughenbaugh, if only to see if he was okay , provided substantial evidence that Shorter was a participant in the assault. The
fact that Shorter admitted to Detective Peak that he was in the assault
area contradicted the testim ony of other witnesses who claimed that
Shorter was not in the area.
2. Sufficiency of the evidence on aiding and abetting

. On the alternative theory of aiding and abetting, Shorter emphasize s that mere nearness to, or presence, at the scene of the crim e, without more, is not aiding and abetting. See State v. Allen , 6 33 N.W.2d 752, 754

– 55 (Iowa 2001). Shorter argues that there is simply no evidence that he advised or encouraged anyone to assault Daughenbaugh or cheered the attackers
on. Shorter claims he was merely present at the scene and that is insufficient to support a second

- degree murder convicti on on an aiding and abetting theory. The State responds that the evidence goes well beyond establishing Shorter’s mere presence at the crime scene. Perkins and L.S. testified that Shorter particip ated in kicking Daughenbaugh. A reasonable jury
could believe that Shorter ’s telling police that he kicked Daughenbaugh “to see if he was okay” was simply an effort to deflect culpability for the
cri me and was absurd on its face. Once the State establishe d that Shorter participated in the assault, the elemen ts of aidi ng and abetting
were established.11

3. Sufficiency of the evidence on joint criminal conduct . On the theory of joint criminal conduct, Shorter asserts there was no showing
that he was acting in concert with others to cause the death of Daughenba ugh. Further, Shorter asserts there were not two crimes

— instead, everyone was assaulting Daughenbaugh at the same time. As a result, Shorter argues the submission of the joint criminal conduct
instruction was erroneous.
Shorter asserts the case is simil ar to State v

. Smith , 739 N.W.2d
289 (Iowa 2007). In Smith , we emphasized the need for two separate crimes to support a joint criminal conduct instruction. Id. at 294. The
defendant must act in concer t with another for the first crime, an d a
different crime must then be committed by another participant in furtherance of the original offense. Id.
The State asserts that joint criminal conduct does not require an explicit agreement, but only that the participants acted together

. Further, the State sugge sts each kick or stomp inflicted on Daughenbaugh constitutes a separate assault

. See State v

. Hohle , 510 N.W.2d 847, 8 49 (Iowa 1994). The State argues that there were, in fact,
two crimes

— the crime of ass ault and the crime of murder. According to
the S t ate, the fact that Daughenbaugh’s death was reasonably foreseeable from the group assault is sufficient to satisfy the legal requirement that the murder be “in fu rtherance” of the conspiracy. See
State v. Sat ern , 516 N.W.2d 839, 84 4 (Iowa 1994)

. 4. Impa ct of unsupported instruction on general verdict. Shorter asserts that if any one of the theories of conduct fail, the remedy is a
remand of the case for a new trial. See State v

. Hogrefe , 557 N.W.2d 871, 881 (Iowa 1996). Shorter points out that when a general verdict is returned, it is impossible to tell whether the jury based its verdict on a12 legally supported theory or upon a flawed theory. State v. Heemstra , 721 N.W.2d 549, 558

– 59 (Iowa 2006)

. The State responds by noting that to the extent the e vidence did not support a joint criminal conduct instruction, there is no reversible

error. The S tate recognizes the defendant’s argument that “if any one of the theories of conduct fail, the remedy is to remand the case for a new
trial.” But , the State suggests , the argument is only partially correct. According to the S tate, reversal for an erroneous submission of a joint
criminal conduct inst ruction is not required unless there is an opportunity for the jury to find the defendant guilty based on anyth ing
other than the defen dant’s own conduct as a princip al or aider and
ab ettor of the crime charged. State v. Jackson , 587 N.W.2d 764, 766 (Iowa 1998). In other words, if the verdict must have been based upon a finding that Shorter was either acting as a principal or aider and abettor , then the er roneous submission of the joint criminal conduct instruction does not require reversal

. See id.
C
. Discussion.
1. Sufficiency of the e vidence as a p rincipal

. W ith respect to Shorter’s attack on the sufficiency of the evidence for principal liability based on causation, w e begin by noting that B.B. testified Shorter was part of the group forming around Daughenbaugh at the beginning of the
assault. The evidence s howed that once Daughenbaugh fell to the ground, the assembled group, yelling and jeering, proceeded to stomp on Daughenbaugh. L.S. testified that she saw Shorter kicking Daughenbaugh as part of the assault and that she left the scene
ther eafter. Perkins also testified she saw Shorter kick Daughenbaugh as part of the group assault. Shorter himself ad mitted to D etective Peak that he kicked Daughenbaugh “to see if he was okay , ” thus establishing13

that he was at the scene of the crime and not elsewhere as te stified by
defense witnesses. And, Shorter asked B.B. to concoct an alibi for him shortly after the murder, implying gu ilt.
There is thus substantial evidence in the record that Shorter was present and that he did more than simply kick Daughenbaugh after his
death. There is substantial evidence that Shorter was one of Daughenbaugh’s attackers prior to his death as part of a group assault

. In Tyler , we considered whether the evidence in th at case supported liability on a principal theory. 873 N.W.2d at 747

. W e noted while there was substantial evidence that Tyler punched Daughenbaugh in the face, knocking him to the ground, the autopsy revealed Daughenbaugh’s death was not caused by blows to the head, but by tears to the mesentery caused by blows to the abdomen. Id. at 745 , 747

. The state maintained that the jury was entitled to infer that Tyler
remained at the sc ene and participated in the subsequent kicking and stomping. Id. at 747. Although we accepted the state’s alternative causation argument,

w e rejected the state’s argument based upon the state’s assertion that Tyler participated in the kicking and stomping. Id. W e emphasized in Tyler that “ [ n ] o witness testified that Tyler .

. . was one of the persons kicking or stomping on Daughenbaugh’s ab domen. ” Id. (emphasis added). We noted that the evidence showed there were a significant number of persons in the group surrounding Daughenbaugh and “to draw the inference that Tyler delivered one of the fatal blows requires guesswork and speculation.” Id. It could be argued that under Tyler , allowing a jury to d raw the inference that Shorter de livered one of the
fatal blows to the abdomen requi res guesswork and speculation.14

Unlike in Tyler , however, in this case t here is substantial evidence that Shorter participated in the kicking and stomping when Daughenbaugh was on the ground. I t would be a mis reading of Tyler to require the S tate to present direct evidence that Shorter delivered a kick
to the abdomen which ca used Daughenbaugh’s death in order to support
a second

- degree murder conviction as a principal

. A lthough not all blows delivered to Daughenbaugh were a cause of his death, this case involves an aggregate group assault in which the State showing who
delive red which blow to a specific body part is not required. See People v. Bailey , 549 N.W.2d 325 , 334 (Mich. 1996) (stating in group assault context that “it is not necessary that the party convicted of a crime be the sole cause of that harm, only that he be a contributory cause that was a substantial factor in producing the harm”) ; Umoja v. State , 965 S.W.2d 3 , 9 (Tex. Ct. App. 1997) (per curiam) ( holding , in context of a group assault resulting in death of a homeless man , defendant ’ s conduct combined with others together may be sufficient unless conduct of de fendant clearly insufficient) , aff’d on reh’g ; accord State v. Texieira , 944 A.2d 132, 142 (R.I. 2008)

. In Tyler , we concluded that there was sufficient causation ground

on an a lternate theory of liability, namely, that Tyler’s actions were sufficient to support liability as a principal because it was a factual cause of foreseeable subsequent harm

. 873 N.W.2d at 748. Under a similar theory, it is sufficient to show that Shorter participat ed in a vicious group assault of a victim on the ground . A foreseeable result of participating in the group kicking and stomping of a helpless person is that the victim may receive blows to the body that cause death. See id.
at 749. Such causation is not so attenuated as to prevent imposition of criminal liability. See State v. Garcia , 616 N.W.2d 594, 5 97 (Iowa 2000).15

Shorter also challenges the strength of the State’s identity
evidence. While Shorter cites the New Jersey case of H enderson , no state constitutional challenge is raised her e regarding the evidence offered in
this case. See 27 A.3d at 9 15

– 18

. The sole issue on appeal is whether
the S tate offered substantial evidence to support the identification of Shorter as a partic ipant in the crime. On the record before us, we conclude that the S tate has met its burden of producing substantial evidence that Shorter participated in the
assault. While Shorter was able to impeach Pe rkins, B.B. , and L.S. , the strength of the identity evidence of these witnesses is a question for the jury. See State v. Jordan , 409 N.W.2d 184, 186 (Iowa 1987) (“[Q]uesti ons of witness credibility[] are of course matters reserved for jury determination.”). While it is true that Shorter offered testimony from
several witnesses that he was not at the scene, a jury was free to credit the testimony of Detective Peak, who testified that Shorter told him that he had kicked Daughenbaugh while he lay prostrate, thereby demonstrating his presence at the scene of the crime

. 2. Substantial e vidence as a ider and a bett o r
. We considered the sufficiency of the evidence on a theory of aiding and abetting in Tyler , 873 N.W.2d at 75 0

. In Tyler , we held there was sufficient evidence to support the aiding and abetting th eory. Id. at 751

– 52. We noted that Tyler’s striking Daughenbaugh while a crowd formed was sufficient to support a finding of encouragement of subsequent acts. Id. at 75 0

– 5 1. We further noted that a jury could conclude that Tyler did not walk away
but r emained with the crowd while Daughenbaugh was brutally beaten.
Id. at 751. To sustain a conviction on the theory of aiding and abetting, the record must contain substantial evidence the accused assented to or lent countenance and approval to the criminal16 act either by active participation or by some manner encouraging it prior to or at the time of its commission. State v. Spates , 779 N.W.2d 770, 780 (Iowa 2010) (quoting State v

. Tangie , 616 N.W.2d 564, 574 (Iowa 2000) )

. Here, the evidence of aiding and abetting is even stronger than in Tyler

. The S tate ’s evidence was that Shorter was present at the beginning of the beating and participated in the subsequent kicking and stomping of Daughenbaugh. Such evidence is plainly sufficient to support an aiding a nd abetting theory. See Spates , 779 N.W.2d at 780, Tangie , 616 N.W.2d at 574

. 3. Substantial e vidence to s upport j oint c riminal c onduct i nstruction.
In Tyler , we considered the question of whether the evidence supported a joint criminal conduct instruc tion. 873 N.W.2d at 752. In Tyler , unlike here, the evidence only showed that the defendant had initially punched Daughenbaugh in the face, causing him to fall to the ground, establish Tyler acted in concert with others or participated in the subsequent group assault. Id. On the facts of Tyler , we concluded that there was insufficient evidence to support an instruction based upon joint criminal
conduct. Id. at 753. We further concluded that the error required reversal of Tyler’s conviction. Id. at 75 4. Although the fact pattern is different in this case, we conclude that the teaching of Tyler with respect to the sufficiency of the evidence to support a joint criminal conduct instruction is fully applicable here. In Tyler , we emphasized that joint cri m inal conduct requires two acts

— namely, a crime in which the joint actor knowing ly participated and a subsequent crime that is unplanned but reasonably foreseeable in
furtherance of the first crime. Id. at 752; see also State v. Rodriguez , 804 N.W.2d 844, 852 (Iowa 2011) ; Satern , 516 N.W.2d at 843

. The first or17 predicate crime in joint criminal conduct must be conducted in concert
with another. Tyler , 873 N.W.2d at 752. The second crime under joint
criminal conduct must then be in furtherance of the first crime. Id. Here, it might be arguable that Tyler’s initial assault was a separate crime from the gr oup assault. But there is no substantial evidence that Shorter acted in concert with Tyler when Tyler first struck Daughenbaugh. Shorter contends that the subsequent group beating, although it involved multiple assailants, cannot be regarded as multiple crimes under our unit of prosecution cases. See , e.g. , State v. Love , 858 N.W.2d 721, 724 (Iowa 2015); State v. Ross , 845 N.W.2d 692, 704

– 05 (Iowa 2014); State v. Velez , 829 N.W .2d 572 , 579

– 84 (Iowa 2013). We need not decide the issue, however, because , as explained below, even if the joint criminal conduct instruction was erroneously given, reversa l is not required under the facts of this case. We begin our analysis of the impact of the joint criminal conduct
instruction with discussion of Tyler. In Tyler , we held that in the context of that case, the submission of the faulty instruction required reversal. 873 N.W.2d at 754. We noted that the general rule in Iowa

— contrary to that announced by the United States Supreme Court in Griffin v. United
States , 502 U.S. 46 , 60, 112 S. Ct. 466, 474 (1991)

— has been where one theory of liability is flawed because of insubstantial evidence to support it in a multitheory case because of insubstantial evidence, a general verdict must be reversed because we have no way of determining w hich theory the jury accepted. Tyler , 873 N.W.2d at 754; see, e.g. , State v

. Lathrop , 781 N.W.2d 288, 297 (Iowa 2010); Heemstra, 721 N.W.2d at 5 58

– 59 ; State v. Tejeda , 677 N.W.2d 744, 754

– 55 (Iowa 2004); Hogrefe , 557 N.W.2d at 881; State v. Pilcher , 242 N .W.2d 348, 3 54

– 56 (Iowa 1976); State v. Mays , 204 N.W.2d 862, 865 (Iowa 1973)

.18 In these cases, we have emphasized that reversal is required because there was no way in which we could determine whether the jury’s verdict was based upon the flawed jury instr uction. See State v.
Thorndike , 8 60 N.W.2d 316, 321 (Iowa 2015)

. In Tyler , we reaffirmed our
well

- established appro ach and required a retrial when a flawed submission of a joint criminal conduct instruction may have tainted the jury verdict. 873 N.W.2d at 754

. We again reject the S tate’s invitation to disturb our long line of cases generally refusing to adopt the Griffin approach. Yet, this case is in a different posture than in Tyler

. In Tyler , there were arguably two crimes

— namely, Tyler’s initial hitting Daughenbaugh
in the fac e and then the subsequent group beating. Id. at 752. Thus, it was possible that the jury convicted Tyler based on a belief that the first assault was the predicate crime and that the subsequent group beating
was in furtherance of the original crime. Id. at 754. Thus, it was possible in Tyler that the jury did not believe that Tyler was guilty of
second

- degree murder as a principal or as an aider and abet to r, but instead concluded that liability for murder arose on ly out of joint
criminal conduct. Id. The State suggests that this case is different from Tyler because in
this case there was only one crime, namely, the joint group as sault of Daughenbaugh. The key case is Jackson , 587 N.W.2d 764 . In Jackson , the evidence showed that the defendant was hired by a woman to kill the
woman’s ex

- boyfriend. Id. at 76 5 . Jackson and the woman stopped the

ex

- boyfriend’s vehicle and then Jackson shot and killed the ex

- boyfriend.
Id. The jury was instructed on theories of liability as a principal and on joint criminal conduct , but not aiding and abetting. Id

. at 766. W e concluded that Jackson must have been found guilty either on his own19

conduct or as an aider and abettor , and thus it was not a reversible error
for the d istrict court to have instructed the jury on joint criminal conduct instead of aiding and abetting. Id

. In Smith , we repeated the principle that a flawed joint criminal conduct instruction does not require reversal “as long as there is no opportunity for the defendant to be found guilty based on anything other
than the defen dant’s own conduct as a principal or aider and abettor of
the crime charged.” 739 N.W.2d at 294. In Smith , however, there were
other collateral crimes

— stolen guns, first

- degree theft , and possession of methamphetamines

— that could have supported a conviction on joint
criminal conduct. Id. at 291, 294

– 95

. Here, however, for Shorter there are no predicate nonhomicide
crimes that could have served as a basis for vicarious liability for subsequent crimes in furth erance of the original crime. The only crime
of Shorter ’s that could possibly support a joint criminal conduct theory
for second

- degree murder is participation in the group assault on Daughenbaugh pri or to his death. I f the jury found Shorter participated in the group assault on Daughenbaugh, however, he would also necessarily be guilty of second

- degree murder b ased on liability as a principal or under an aiding and abetting theory. As a result, in t his limited situation, Jackson applies and a retrial is not required. See 587 N.W.2d at 766.

III
. Testimony of Perkins Outside the Scope of the Minutes of Testimony.

A. Introduction. Iowa Rule of Crim inal Procedure 2.5(3) states,
Witness names and minu tes. The prosecuting attorney shal l, at the time of filing such information, also file the minutes of evidence of the witnesses which shall consist of a notice in writing stating the name and occupation of each witness upon whose expected testimony th e information is based,20 and a full and fair statement of the witness’ expected testimony. In this case, the minutes of testimony did not state that Perkins would identify Shorter as one of the assailants. The minutes simply
stated that Perkins witnessed the assault and saw “ten to fifteen individuals hit, kick and stomp on Mr. Daughenbaugh.” The minutes stated that Perkins “would testify to all of these matters in detail.” A pretrial deposition was taken of Perkins. Perkins testified at her deposition that she was too busy trying to save Daughenbaugh’s life and not paying attention to who was doing the beating or stom ping to make
an identification. At trial, however, Perkins, after repeated questioning by the prosecution, identified Shorter as a person who jumped on Daughenbaugh’s face : Q: So you identified som eone for the police from a photograph ; is that right? A: Yes, ma’am. Q: That was involv ed in stomping on Richard Daughenbaugh? A. Yes. Q: And today you can’t recall who that person is? A: I just

— I don’t know if becaus e I want to block it out of my mind. I don’t know. I have a lot of things on my mind right now. So I am just kind of

— Q: All right. And you’ re also required to answer truthfully. So I need yo u to tell the truth, if you remember who this perso n is that you identified or not. A: Yeah. I remember that one over there in the checkered shirt.

. . . . Q: If you’re telling me that you recognize one of the people in the court room today as being involved in stomping on Richar d Daughenbaugh, yes, I would like for you to describe for me where he’s sitting and what he’s wearing. At this point, Per kins identified James Shorter.21

Perkins also identified Yarvon Russell as “stomping” on Daughenbaugh. She conceded that she could not identify all of the people assaulting Daughenbaugh because “they were taking turns jumping up in the air and stomping on him.”
On cross

- examination, Shorter confronted Perkins with h er deposition testimony: Q: Ma’am, I’ve shown you a deposition transcript. Do you recall saying this? A: Yeah, I do. Q: What did you say at the time? A: That I was too busy trying to save that man to remember if it was him. Q: And that you weren’t paying attention to who was actually doing the beating or stomping? A: Yes. Q: And at that time you weren’t able to say who that person was or make any identification; is that right? A: No, I wasn’t. Shorter did not object to Perkins’ s identification testimony at trial.
Shorter filed a motion for a new trial , however, based on newly
discovered evidence related to Perkins’ s eye witness testimony. In the posttrial hearing on the motion for a new trial, Shorter called DeMarco
Turner as a witness. Turner testified that sometime in May, apparently during Shorter’s trial, h e ran into Perkins at the court house. According to Turner, Perkins told him she was testifying in a murder case “trying to get prob ation” or “to get probation.” Turner t hought the charges against Perkins involved drug cha rges and driving while barred. The day of the conversation with Perkins, Turner himself received a sentence and was incarcerated in the same cell pod as Shorter in the Polk County j ail. Turner testified he told Shorter about the conversation
he had had with Perkins at that time. In response , the S t ate emphasized that Perkins did not have a deal to testify and that Turner did not testify that she did. The State further22 argued that there was no suggestio n that Perkins did not testify truthfully at trial. The district court denied the motion for a new trial based upon
Turner ’s testimony. The district court noted that Turner conversed with Shorter on the very same day as the conversation with Perkins and thus the defense should have discovered the information with due diligence. The district court also stated that it did not believe the testimony would have changed the result of the trial.
B. Standard o f Review. The claim that Shorter’s counsel should have objected to Perkins ’ s identification testimony comes to us in the context of ineffective assistance of counsel. The pa rties agree that in
ineffective

- assistance

- of

- counsel cases, the defendant must show both that counsel breached a duty to the defend ant and the defendant was prejudice d

. See Strickland v

. Washington , 466 U.S. 66 8 , 687, 104 S. Ct. 2052, 2064 (1984).
C. Position s of Parties. Shorter claims that Perkins’ s testimony was a complete surprise to the defense. According to Shorter, the defense expected Perkins to testify about the context of the fight, not that Shorter participated in the crime. According to Shorter, the pretrial deposition of Perkins was not harmful to Shorter. Instead, according to
Shorter , Perkins became “a star witness” at trial. Shorter asserts that his trial counsel provided ineffective assistance of counsel by failing to object to Perkins’ s identification testimony as outside the scope of the minutes in violation of Iowa Rule of
Crimi nal Procedure 2.5(3). He further asserts that counsel was ineffective for failing to seek a mistrial as a result of the unexpected testimony.23 Shorter claims prejudice because he could have cross

- examined Perkins more effectively if he had notice of her t estimony. Shorter claims that even a cursory review of her criminal record would have reflected that at the time of her testimony, she had pending cha rges for driving
while barred.
Shorter further cites the post trial testimony of Turner. Shorter points out that Perkins ’ s pending charges were dismissed two weeks
after the trial. Even if there was no deal with Perkins related to her trial testimony, Shorter argues that he could have argued that the reason she changed her testimo ny was “to s ave her own skin.” Shorter further asserts that with more notice, Shorter could have successfully challenged the reliability of Perkins ’ s testimony and prevented admission. According to Shorter, Perkin s ’ s identification was unreliable and was simply base d on her repeatedly seeing Shorter in the criminal proceedings. The State responds that the minutes provided Shorter with adequate notice. According to the State, Shorter knew that Perkins would testify about what she observ ed during the attack and her i n

- court identification was “consistent with the overall nature of the minutes.”
State v

. Ellis , 35 0 N.W.2d 178, 182 (Iowa 1984).
The State further claims that Shorter failed to demonstrate prejudice. The State claims that the minutes p ut Shorter on noti ce of the necessity of further investigation of the witness’ s probable testimony.
See State v. Musso , 398 N.W.2d 866, 868 (Iowa 1987). Further, the State argues that Perkins ’ s in

- court identification was cumulative of the testimony of Detective Garcia th at Perkins had circled a photo of Shorter and identified him as one of Daughenbaugh’s assailants, the testimony of
L.S. that she saw Shorter kick Daughenbaugh, and the testimony of B.B.24 that Shorter was part of the crow d that surrounded Daughenb augh when
h e was being beaten.
D. Iowa Casel aw Regarding Pretrial Disclosure in Criminal
Cases
. In Iowa, the question of the degree to which the prosecution is required to disclose to the defendant the facts underlying a prosecution has been controversial in our courts since the beginning of statehood. For example, in State v

. Bowers , the court con sidered whether a witness could testify in a criminal trial beyond the scope of the minutes of the
wi tness’ s testimony before the grand jury. 17 Iowa 46, 50 (1864). Chief Justice Wright noted that he was “instructed” to announce the majority
view that th e requirement that a defendant be presented with minutes of testimony of a witness before the grand jury did not require the prosecution to “exclude anything else he may kno w or recollect on the subject” in a subsequent prosecution. Id

. Chief Justice Wri ght, however, indicated that the very object of providing minutes testimony to be returned with an indictment would be practically defeated by the majority’s approach. Id. at 51. The divergence of approach to disclosure obligations of the prosecution in Bowers resurfaced in State v

. Miller , 259 Iowa 188, 142 N.W.2d 394 (1966). In Miller , the court considered disclosure under

s ection 780.10 of the Iowa Code which required that notice be given of “the substance of what he [the prosecutor] expects to prove by him [the witness] on the trial. ” Miller , 259 Iowa at 19 5

– 96 , 142 N.W.2d at 399 (quoting Iowa Code § 780.10 (1962)) . T he minut e s of testimony indicated
that a D etective Peters e n was to testify regarding admissions made by
the defendant. Miller , 259 Iowa at 195 , 142 N.W.2d at 399. Peters e n’s testimony, however, was suppressed by the trial court

. Id. At trial, the

s tate offered testimony from Detective Ivers e n
. Id.25

A five

- member majority of the court held that the minutes were adequate. Id. at 19 6, 142 N.W.2d at 399

. The majority emphasized that the defense knew the admissions were made to two police officers and also knew the general nature of the claimed a dmissions. Id. at 196, 142 N.W.2d at 399. The majority emphasized that although the minu tes were brief, mere brevity does not prevent a witness from testifying. Id. The majority further noted that the state is not limited to the minutes or
notice in its examination of witnesses. Id .; see also State v. Thom , 236 Iowa 129, 131, 17 N.W.2d 96 , 97 (1945); State v. Harding , 204 Iowa 1135, 1150, 216 N.W. 642 , 649 (1927).
Justice Becker, for himself and three other justices, dissented.
Miller , 259 Iowa at 199, 142 N.W.2d at 401 (Becker, J., dissenting). The dissent emphasized that Detective Iver son testified with respect to two separate sets of admissions by the defendant

. Id. at 200 , 142 N.W.2d at
40 2

. According to the dissent, one set of admissions was fully disclosed in the minutes, but the other set was not disclosed. Id. The dissent
note d that the prosecution “strongly relied” upon the fact that the defendant gave two versions of the story in urging the sufficiency of the
evidence to sustain the conviction. Id

. The d issent emphasized that

“ [ n ] o hint of this deviation” in the defendant’s admissions was contained
in the minutes. Id. at 200

– 01, 142 N.W.2d at 402. The dissent regarded the court’s casual approach to the statutes as amounting to “judicial repeal of a legislative enactment.” Id. at 204, 142 N.W.2d at 404.
We next consid e red a challenge to testimony as outside the
minutes in State v

. Salter , 162 N.W.2d 427 ( Iowa 1968). In Salter , the original minutes indicated that the victim would testify that the defendant had assaulted her with intent to commit rape, but at trial, the
victim testified that the “rape had been accomplished. ” Id. at 431. The26

s tate, however, filed a notice of additional testimony indicating that the
defendant “did commit rape

. ” Id

. Over the dissent of Justice Becker and one other justice, the Salter maj ority found no infirmity. Id. at 431

– 32. The majority emphasized that a witness is not limited to the minutes in his actual testimony. Id.
at 431. The court noted, however, that by filing the minutes of additional testimony, the s tate followed “the saf er, better, and fairer practice” since the court had been far from unanimous in its prior cases on the subject.
Id

. Although Justice Becker had been a dissenter in Miller and Salter , he relented in State v. Cunha , 193 N.W.2d 106 , 108 (Iowa 1971). In
Cun ha , a defendant charged with murder and aggravated robbery challenged the testimony of a witness who identified the de fendant as one of four men who committed one of the robberies in question. Id. at
110. The minutes revealed that the witness would “describe the subjects she saw involved in the robbery” and would testify that “after the robbery she was able to identify the defendant Thomas Hinsey from a group of photogra phs of possible suspects.” Id

. At trial, the witness also
identified Cunha as o ne of the robbers. Id. The defendant claimed surprise. Id

. The Cunha court rejected the defense challenge to the testimony with the brief observation that a witness identified in the minutes was not limited to the minutes in subsequent testimony. Id

. at
111. If our law was frozen in place in 1971, Cunha would be substantial authority supporting the position of the S t ate in this case. But the law
has evolve d . That evolution is reflected in State v. Walker , 281 N.W.2d 612 (1979).27

In Walker , the minutes of testimony indicated that a witness would testify regarding seeing the defendant in the rear of a motor supply company with another person looking at tires which were later stolen from the building. Id. at 614. At trial, however, the witnes s t estified regarding business records and the lack of a receipt for the sale of tires.
Id. We held that the testimony of the witness was beyond the scope of
the minutes and reversed the defendant’s conviction for third

- degree
theft. Id. at 615. We beg an our opinion in Walker by considering whether the adoption of Iowa Rules of Criminal Procedure in 1978, in particular r ules 4(6)(a) and 5(3)

— the predecessor to rule 2.5(3)

— worked a substantive change from the previous statutory requirement of Iowa law re lated to disclosure of minutes of testimony. Id. at 613. We concluded there was

a substantial change in law. Id. We noted that the question of the scope of disclosure in minutes had been “hotly contested” throughout the years by defense counsel and “frequently the subjec t of criticism by members
of this cou rt.” Id. We cited the holding in Cunha that a witness is “not limited to those minutes in his actual testimony.” Id. (quoting Cunha , 193 N.W.2d at 111). We noted that “ [ t ] his rule has been severely criticized, both from within and without the court.” Id

. ; see Miller , 259
Iowa at 19 9 , 142 N.W.2d at 401

. We noted it was in this setting that the language of rule 5(3) was adopted. Walker , 281 N.W.2d at 613. We concluded t hat the purpose of the changes was “to assure minutes which would eliminate most claims
of foul play and would provide meaningful minutes from which a defense could be prepared.” Id.
We then considered whether the witness’ s testimony regarding
business r ecords was suffici ently noticed in the minutes. Id. at 614. We28 explained that minutes need not detail “ each circumstance of the testimony, ” but must be sufficient to fully and fairly “ alert defendant generally to the source and nature of the evidence against him.” Id. We noted that even the state conceded that it did not know about the business records until trial was underway. Id. The minutes did little more than identify the witne ss and state the conclusion that the tires in question were stolen. Id. We stated, “Under the new rules defendant is
entitled to more.” Id . We held that the new evidence should have been excluded on the ground that it was outside the scope of the minut es. Id

. at 615.
Since Walker, we have considered a number of cases involving r ule 5(3) with mixed results. In State v

. Olsen , we reversed a conviction where the minutes revealed that a peace officer would testify regarding evidence
obtained from a vehic le, tagged packages, and receipt of a BCI criminalist report, but did not disclose that the police officer was a DCI agent with training and expertise in drug investigations. 293 N.W.2d 216, 220

– 21 (Iowa 1980). In Musso , 398 N.W.2d at 868, and State v

. W aterbury , 307 N.W.2d 45 , 51 (Iowa 1981), we found that testimony exceeded the scope
of the minutes but held that there was no reversible error because the
defendant was no t surprised by the testimony. In several other cases, we
found that the minutes of t estimony were sufficient to provide notice of testimony offered at trial. Ellis , 350 N.W.2d at 182 ; State v

. Lord , 341 N.W.2d 741, 743 (Iowa 1983); State v. Ristau , 340 N.W.2d 273, 275 (Iowa 1983). In sum, the question of the scope of proper disclosure by the prosecution of minutes of evidence prior to trial has been hotly
contested. As indicated in Walker , c ase law prior to 1978 is undermined by the advent of Iowa Rule of Criminal Procedure 5(3) , now rule 2.5(3) ,29

which amounted to a substanti ve change in law designed to promote greater disclosure. 281 N.W.2d at 613. Notwithstanding the more

s tringent requirements of Iowa Rule of Criminal Pro cedure 2. 5(3), there is no requirement that the minutes of testimony provide a complete catalogue of w itness testimony at trial, but only that the defense be placed on fair notice and not subject to surprise testimony.
E. Development in the Law of Eyew itness Identification. This case, of course, involves the lack of dis closure in minutes that Perkins

wo uld identify Shorter as one of Daughenbaugh’s attac kers. The reliability of eye witness testimony ha s been the subject of intense commentary in academia and in the courts. According to one article , “eyewitness misidentification is by far the most frequent cause of erroneous convictions.” Samuel R. Gross, Loss of Innocence: Eyewitness Identification and Proof of Guilt , 16 J. Legal Stud. 395 , 396 (1987). Yet, juries o ften attach great weight to eye witness identification without consideration of reliability. See State v

. Hunt , 69 P.3 d 571, 576

– 77 (Kan. 2003) (noting that juries “usually attach great weight to eyewitness identification, while others involved in a trial know and other disciplines
have documented that such identi fication is often unreliable ”). Preparing for eyewitness identification is an essential responsi bility of defense counsel. Eye witness testimony may have a dramatic influence on overall defense strategy or theory of the case. Defense counsel must consider a pre trial motion to suppress. Voir dire may be used to educate the jury about honestly mistaken witnesses. Defense counsel must be prepared to explore the potential for error in the identification process through effective cross

- examination. Cross

- examination, however, is not likely to be effective when a person is genuinely mistaken about past
events. Consideration should be given to obtaining expert witness30

tes timony of the problems with eye witness identification. See S tate v

. Schutz , 579 N.W.2d 317 , 319 (Iowa 1998) ( holding adm ission of expert witness on eye witness identification within sound discretion of the court) ; see also People v. McDonald , 690 P.2d 709, 72 5

– 2 6 (Cal. 1984) (en banc) (holding exclusion of expert on reliability of eyewitness testimony was an abuse of discretion) , overruled on other grounds by People v.
Mendoza , 4 P.3d 265, 286 (Cal. 2000)

. Special instructions for the jury may need to be c onsidered. Summations must b e designed to deal with the eye w itness identification. Many of the most troublesome cases involve identification of strangers. Careful consideration by counsel of eye witness identifications extends to identifications of persons known to the witness and not simply to identification of s trangers. James E. Coleman Jr., et al

. , Don’t I
Know You? The Effect of Prior Acquaintance/Familiarity on Witness Identification , 36

- Apr. C h ampion 52 , 53

– 54 (April 2012). W ithout timely disclosure of eye witness identification, defense counsel ’s ability t o mount an effective defense m ay be substantially impaired.
F. Discussion. In light of the developments in our cas e law and the importance of eye witness identification in a criminal trial, we conclud e that under Iowa Rule of Criminal Procedure 2.5(3), the minutes of testimony must disclos e eyewitness testimony. Eye witness testimony is a central part of trial and cannot be confronted b y defense counsel on the fly. Although the pre rule 2.5(3) case of Cunha is to the contrary, we
think it clear that under the more demanding approach adopted by
Walker , eye witness identification must be disclosed by the prosecution. Yet, this general ru le does not necessarily entitle Shorter to relief. This case has its peculiarities. While there is nothing in t he minutes to indicate that Perkins would identify Shorter as one of the persons kicking31 Daughenbaugh during the assault , the defense was on notice that Perkins was at the scene and would testify about the events leading to Daughenbaugh’s death. As a resu lt, the defen dants took the deposition
of Perkins and defense counsel asked Perkins point

- blank if she could identify Shorter. She did not make the id entification at her deposition. Ordinarily, we think it incumbent upon the S tate to disclose in the
minu tes of testimony if a witness will identify a defendant as e ngaging in criminal conduct. The record here, however, does not establish that the State knew, in advance of trial , that Perkins would identify Shorter when
she took the stand. While at trial th e prosecution pressed Perkins and
successfu lly got her to identify Shorter, Shorter has not established that the p rosecution had prior knowledge that such testimony would be forthcoming. In addition, it is not entirely clear what Shorter’s trial counsel
k new. Counsel for both Shorter and Russell were able to cross

- examine Perkins by confronting her with her testimony in her deposition indicating that she could not specifically identify the perpetrators. It is possible that although the minutes of testimony did not specifically mention that Perkins would identify Sh orter, they were nonetheless prepared for the eventuality that she would make an in

- court identification and made app ropriate strategic decisions. Under our

case law, a defendant is not entitled to relief due to defective minutes
under r ule 2.5(3) when the defense is not surprised by the subsequent testimony. Further, Shorter’s counsel may have made the strategic decision that the trial was going well enough to take a pass on a motion
for a mistrial

. Additionally , we do not have a clear picture regarding prejudice to the defendant. While this case is on direct appeal, t he failure to object to32 the eye witness testimony and the failure to seek a mistrial is pr esented
to us as an ineffective

- assistance

- of

- counsel claim. Even if a breach of counsel’s duty is present, Shorter acknowledges that he must show prejudice under Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. The
record concerning potential prejudice has not been fully developed.
Because of the factual uncertainties surrounding the claimed
ineffect ive assistance of counsel arising out of the deficient minutes, we conclude that this claim cannot be resolved on direct appeal and should be addressed in an action for post conviction relief.

I V. Discussion of a Jury Question Outside the Presence of Defendant.

A. Introduction. A criminal defendant has the right to be personally present at every stage of the trial. State v

. Wise , 472 N.W.2d 278, 279 (Iow a 1991) (per curiam) . Further, under Iowa Rule of Crim inal
Procedure 2 .19(5), if the jury desires to be informed on any point of law arising from the case after it has r etired, the court must conduct proceedings “in the presence of defendant and counsel for the defense and prosecution, unless such presence is waived.” Iowa R. Crim. P

. 2.19(5)( g ). Under our caselaw, there is no discretion regarding the presence of
defendant and counsel. State v

. Griffin , 323 N. W.2d 198, 201 (Iowa 1982). When the rule is violated, a presumption of prejudice is presumed unless the record sho ws to the contrary

. Id. In this case, after the case was submitted to the jury, the jury asked a question . Specifically, the jury asked, “ Judge Sta s kal, if we
determine a level of guilt, example second degree murder, does it have to
include all lesser c harges to be convicted of that charge?”33 Judge Staskal and the lawyers all agreed to respond to the jury by simply asking it to “re read the instructions. They contain all of the applicable law in the case.” Shorter was not present when the jury’s question was discussed.
B. Standard of Review. This question is presented in the context
of ineffective assistance of counsel and the parties thus agree that the
two

- pronged approach in Strickland is applicable. 466 U.S. at 687, 104
S. Ct. at 2064.
C. Positions of the Parties. Shorter maintains that the defendant’s presence at such proceed ings is “of greatest importance[] as he may be able to suggest to the court or counsel some information ” and might be able to “ excep t” to the ruling of the court. See Griffin , 323 N.W.2d at 201 (quoting State v. Snyder , 223 N.W.2 d 217, 221 (Iowa 1974)). According to Shorter, the question posed by the jury “raised serious questions ” concerning the effect of the jury’s confusion over the meaning of crucial terms in t he instructions. I d. Shorter argues that prejudice is inherent as it is difficult to know what exactly the jury was even talking about in the question. The State responds that it would have been a “logist ical nightmare” to get three co defendants to cour t on short notice as the jury question came in at 3:40 p

. m
. , and shifts w e re changing , and people would be
ge tting off work at 4:30 p.m

. The State further argues that even if there was a breach, there was no prejudice. The State notes the presumption of prejudice arises only
when both the defendant and counsel are absent. Id. at 199

– 201. Further, the State contends there ca nnot possibly be prejudice when the judge’s response to the question was “reread the instructions .”34

D. Discussion. At the outset, we reject the State’s argument that
the practical considerations rai sed provide a defense to Iowa Rule of
Criminal Procedure 2.19(5) ( g ) . Our rules of criminal procedure are not applicable only when convenient to the Sta te. We declin e to approach our rules as only suggestions, guidelines, or best practices. The leading case in the area is Griffin , 323 N.W. 2d 198

. As Shorter points out, Griffin held

— under a precursor to our current rule

— that the district court has no discretion regarding the presence of counsel and the parties when the jury raises a point of law. Id. at 201. In Griffin , the jury was struggling over the definition of “physical injury” and “assault.”
Id. at 199. Without consulting with counsel or the parties, the dis trict court instructed the jury, “Y ou will have to define the terms from the
lan guage given in the instructions and reconcile any definitions as best you can by reading the instructions.” Id

. We concluded t hat violation of the court rule gave rise to a presumption of prejudice and that the response to the jury’s serious question over crucial terms could have
influenced the result. Id. at 201. Griffin , however, is distinguishable. In Griffin , neither the p arty nor counsel was present. See id. at 199. Thus, the defendant was unrepresented when the court responded to the important question raised by the jury. Id. Here, counsel was present. Thus, it cannot be
said that the defendant was unrepresented. It can be said, however, that the defendant was entitled to be present. The record reveals that convenience may have played a role in the decision to proceed without the defendant. What we do not know, however, is whether the defendant waived h is right to be present. The record does not provide us with a factual basis to determine this35 question, and if it were important, it would need to be raised on a more developed record in a postconviction

- relief proceeding.
N onetheless, we agree with the State’s posi tion on the prejudice issue. The question posed by the jury may have been confusing, but Shorter does not offer any suggestion as to how his participation in the proceedings would have changed matters. Although the district court ’s instruction to the jur y to “reread the instructions” was similar to that provided in Griffin , the key difference is that Shorter’s counsel was present and agreed to the instruction. Shorter concedes that the proper test in this case wh en counsel is present for the proceedings but fails to insist on the presence of the
defendant , is provided under Strickland , 466 U.S. at 687, 104 S. Ct. at
2064. Based on our review of the record, t here is certainly no reasonable probability that the outco me of trial would have been different if the defendant had been present when the district court and the attorneys agreed to simply instruct the jury to “reread the instructions.” Shorter has not suggested to us how the proceedings would have been differen t had he been present. We therefore hold that Shorter has failed to show prejudice and thus has not demonstrated ine ffective assistance of
counsel.

V
. Fai lure of Counsel to Request Eyew itne ss Identification Instruction.

A. Introduction. At trial, the S tate offered eye witness testimony
from Perkins and L.S. identifying Shorter as a person who participated in the assault on Daughenbaugh

. The trial court, however, did not use the
Iowa State Bar Association (ISBA) instruction on eye witness testim ony or any similar instruction. The ISBA Model Criminal Jury Instruction
200.45 on eye witness identification instruction tells the jury that in36 evaluating an eye witness identification, the jury may consider “ [ i ] f the witness had an adequate opportunity to see th e per son at the time of the crime,” and “ [ i ] f an identification was made after the crime

. . . [to]
consider whether it was the result of the witness’s own recollection. ” Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.45 (2012). The
in struction further provides that “ [ a ] n identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the def endant alone to
the witness.” Id. Finally, the instruction p rovides that the jury should
consider “ [ a ] ny occasion in which the witness failed to identify the
defendant or made an inconsistent identification .” Id.
B. Standard of Review. The parties agree that in order to support a claim of ineffective assistance based upon failure to provide an
instru ction related to the evidence, the defendant must show both that
counsel breached the standard of care and that the defendant was prejudiced by counsel’s breach. See Strickland , 466 U.S. at 687, 104
S. Ct. at 2064.
C. Position s of the Parties. Shorter claims that in light of the importance of the eye witness testimony in this case, his trial lawyer should have requested the instruction. Shorter notes that several features of the instruction might have helped him. He notes that counsel
could have argued based upon the language in the instruction involving
the witness’ s opportunity to observe the crime, that Perkin s ’ s identification was questionable in light of darkness and t he exigencies of
the situation.
Shorter further argue s that the instru ction related to subsequent
eye witness identification would have assisted counsel in arguing that the
identifications of Perkins and L.S. were based upon their presence at trial37 proceedings rather than upon true recollection. Finally, Shorter argues
that the instruction would have assisted Shorter in arguing that the jury should consider the accuracy of the Perkins and L.S. identification s in light of inconsistencies when they were asked to identify persons participating in the assault.
The S tate responds by noting that most of th e ISBA Model Instruction on eye witness identification would not have assisted Shorter. The State argues that Perkins testified that she ob served the def endant from point

- blank range, declared that the visibility was good because the
area was well

- lit, and identified Shorte r in a photo lineup less than twenty

- four hours after the crime as participating in the assault. Thus,
the S tate argues the instruction would have helped the prosecution on these points. The State argues that although Perkins stated she
ide ntified the defendants because she “ kept looking” at them, Perkins also clarified, “I keep seeing their face [s] . I’m going to remember who
stom ped. I know I circled his face

. . . . I know these people did it, and I don’t care what nobody says.” In sum, because the instruction would have hurt as much as it helped, it was not a breach of duty for Shorter’s counsel not to request it.
Th e S tate further suggests that the repeated and consistent eye witness identification by L.S. , coupled with Shorter’s statement to Officer Peak that he did kick Daughenbaugh

— if only to see if he was okay

— placed
Shorter at the crime scene. See State v

. Tobin , 338 N.W.2d 879, 881 (Iowa 1983) (citing corroborating evidence as proportionatel y lessening the need for an eye witness instruction). In the alternative, the S tate argues that Shorter has failed to show prejudice. The S tate points out that the jury was generally instructed in determining credibility of witnesses to consider whether a witness had38

made inconsistent statements. Id. (citing jury instruction regarding credibility of witnesses as mitigating factor in case inv olving failure to
instruct on eye witness identification). In addition, the State suggests
t hat absence of any specific eye witness instruction did not prevent Shorter from making his arguments regarding the reliability of identification in closing argument s to the jury.
D. Discussion. There is no question that Shorter woul d have been entitled to the eye witness instruction if counsel had requested it. But that is not the question before us. The question is whether Shorter’s counsel breached a duty to hi m by failing to ask for the instruction and whether as a result of this omission, Shorter has shown that it is reasonably probable that the result in this case would have been
different. On the record before us, we conclude that Shorter simply cannot
show a reasonable probability that the result at trial would have been different if the trial court has provided the jury with the ISBA Model
Instruction on eye witness identification. As the State suggests, it is debatable which party would have benefitted th e most from the instruction. Further, the general instructions given to the jury gave
Shorter’s counsel a clear avenue to attack the inconsistencies in
Perkins ’ s eye witness identification testimony. See id. And, much of the
eye witness identificat ion ins truction embraces common sense notions
that would not likely have escaped a conscientious jury unaided by the
ISBA instruction. As a result, although we certainly do not dis courage the use of the ISBA eye witn ess identification instruction , we conclude
that Shorter is not entitled to a new trial based on the failure of his counsel to request the eye witness instruction. See id.39

VI
. Conclusion. For the above reasons, we vacate the opinion of the court of appeals and affirm the judgment of the district court

. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.