               IN THE SUPREME COURT OF IOWA
                                  No. 18–0677

                        Filed November 22, 2019


STATE OF IOWA,

      Appellee,

vs.

MIGUEL ANGEL LORENZO BALTAZAR,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Scott D.

Rosenberg, Judge.



      The State seeks further review of a court of appeals decision

reversing the defendant’s first-degree murder conviction. DECISION OF

COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;

DISTRICT COURT JUDGMENT AFFIRMED.


      Mark C. Smith, State Appellate Defender (until withdrawal), and

Stephan J. Japuntich, Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.
                                      2

CHRISTENSEN, Justice.

      We are asked to determine whether engaging in an illegal activity

disqualifies a defendant from asserting “stand your ground” justification.

The defendant was charged with first-degree murder and asserted the

justification of self-defense and defense of others.      The district court

instructed the jury on the outdated version of justification, and the

defendant’s counsel did not object. The jury found the defendant guilty of

murder, and the district court sentenced the defendant to life

imprisonment.

      On direct appeal, the defendant raised a claim of ineffective

assistance for failure to object to the jury instructions, challenged the

sufficiency of the evidence for specific intent, and argued the district court

abused its discretion in excluding character evidence of the victim. We

exercise our discretion and only address whether trial counsel was

ineffective and whether the district court abused its discretion in excluding

character evidence of the victim.     Upon our review, we conclude trial

counsel was not ineffective for failing to object to the justification

instruction because engaging in an illegal activity disqualified the

defendant from asserting stand-your-ground justification. In doing so, we

address the appropriate standard for ineffective-assistance-of-counsel

claims based on the failure to preserve jury instruction error. We also

conclude the district court did not abuse its discretion in excluding

character evidence of the victim because the defendant was unaware of

the victim’s specific conduct.

      I. Background Facts and Proceedings.

      Des Moines police responded to reports of gunshots near Oakland

Avenue on July 28, 2017.          They found Jeffrey Mercado (Pumba)

nonresponsive, convulsing, and covered in blood. Mercado suffered two
                                     3

gunshot wounds—one to the right side of his back and one to his right

buttock. One bullet punctured both lungs, tore through the ascending

aorta, and exited his chest. The other bullet entered the right buttock and

exited his right groin.   Each bullet followed a back-to-front trajectory

through his body. Mercado’s wounds were fatal. He died shortly after

arriving at the hospital. An autopsy determined the cause of Mercado’s

death was gunshot wound to the back; the manner of Mercado’s death was

homicide.

      Witnesses reported a dark-colored Mitsubishi Eclipse accelerate

quickly down Oakland Avenue within seconds of the gunshots.

Des Moines police located a car matching the description, but when

officers attempted to make a stop, the car fled. Following a short pursuit,

the suspect car crashed in a residential area. At that time, police officers

noticed two individuals in dark clothing running through backyards. One

individual, Anthony Garcia, was immediately taken into custody. A K-9

unit picked up the second suspect’s tracks. The K-9 led officers down

through a creek bed to a drainage pipe. That drainage pipe was roughly

four feet tall. The K-9 indicated the suspect’s tracks continued into the

drainage pipe. The officers, led by the K-9, climbed into the drainage pipe

and proceeded to walk fifty to seventy-five yards into the pipe. A large

cavity was located at the end of this pipe. There, the officers found the

second suspect. The suspect was taken into custody and identified as

nineteen-year-old Miguel Angel Lorenzo Baltazar.

      At the scene of the crashed Mitsubishi, officers recovered a handgun

no more than fifteen yards behind the car. On Oakland Avenue, at the

scene of the shooting, officers located five brass shell casings on the road.

Microscopic comparison proved the handgun recovered near the car fired

all five brass shell casings from Oakland Avenue. Swabs off the recovered
                                      4

handgun developed a DNA profile, which was compared to Baltazar’s DNA

profile. The DNA profile from the handgun was consistent with Baltazar’s

DNA profile to a statistical probability of 1-in-24 sextillion unrelated

individuals.

      The State charged Baltazar with first-degree murder in the shooting

death of Mercado. He filed a notice of self-defense and defense of others

and proceeded to trial on March 26, 2018.           A number of responding

officers, investigators, and witnesses testified.

      Garcia agreed to provide truthful testimony for the State in exchange

for a twenty-five-year sentence. Garcia testified to knowing Baltazar for a

few years. In the days prior to the July 28, 2017 shooting, Garcia and

Baltazar discussed Mercado. Baltazar considered Mercado to be “no good”

and “an enemy.” Garcia was under the impression Baltazar “had some

beef” with Mercado.     Before the shooting, Garcia admitted to driving

Baltazar around looking for Mercado; they knew Mercado hung out at

Oakland Avenue.       When questioned about the purpose of locating

Mercado, Garcia stated, “To be honest, I thought [Baltazar] was going to

fight him.” Garcia also knew Baltazar carried a gun “all the time” but never

saw him fire one.

      On the day of the shooting, Baltazar contacted Garcia requesting he

pick him up at the Des Moines Area Community College (DMACC) parking

lot. Garcia complied. Around 3:00 p.m., Garcia drove his ex-girlfriend’s

blue-green Mitsubishi Eclipse to DMACC where he picked up Baltazar.

Baltazar had a friend with him, and after taking that friend to the

probation office, Baltazar asked that Garcia drive to Oakland Avenue to

see if Mercado was around.

      En route to Oakland Avenue, Garcia testified Baltazar pulled out a

handgun and stated he wanted to look for Mercado. If Mercado was found,
                                      5

Baltazar said he would “[j]ust beat him up, just get in a fight.” As the pair

suspected, they located Mercado walking along Oakland Avenue. Baltazar

instructed Garcia to stop the car. Relative to the car, Mercado was four to

five feet away, near the passenger side of the car, on the sidewalk. Garcia

testified Baltazar said to Mercado, “What’s up, Pumba?           What’s up?

What’s up, dude?”     Mercado said nothing and ran away from the car.

Garcia then watched Baltazar exit the car, raise his handgun, and shoot

at Mercado. Baltazar shot directly at Mercado four to five times. Garcia

witnessed one of the bullets hit Mercado, and he watched as Mercado fell

to the ground.

      Baltazar returned to the car and told Garcia to drive.        Although

scared, Garcia drove off fast. Baltazar stated, “Man, I shot the mother-

fucker. You saw that mother-fucker fall.” Baltazar instructed Garcia to

drive slowly, so not to attract the attention of other drivers. However, after

Garcia spotted the Des Moines police, he panicked. “And that’s when I

lost control. The car was swerving.” Garcia crashed the car in a grassy

area near a house. He and Baltazar “bailed out and ran.” Garcia ran for

a bit but was arrested after he surrendered to Des Moines police. Garcia

did not see where Baltazar went; “he just disappeared.”

      Baltazar testified at his trial. He conveyed a concern for his safety

because Mercado had previously threatened him and assaulted members

of his family. Baltazar told Garcia to pick him up at school so that he

could “confront” Mercado. While Baltazar and Garcia drove to Oakland

Avenue, Baltazar denied saying anything.        Baltazar admitted he had a

handgun on him, but according to his testimony, he put it in the glove

compartment until they located Mercado.          After they found Mercado,

Baltazar grabbed the handgun from the glove compartment and stepped

out of the car with it at his side.       According to Baltazar, he held the
                                           6

handgun at his side “to assure [himself] that [he] could talk to [Mercado]

and get his attention.” Baltazar needed the handgun in case Mercado

attacked him the moment he got out of the car.                 Baltazar said, “Hey,

Pumba,” to get Mercado’s attention without coming off as aggressive.

Mercado noticed Baltazar’s gun, adjusted his pants, and took two or three

steps towards him. Baltazar testified Mercado was wearing nothing more

than gym shorts, yet he was concerned Mercado was carrying a knife or a

gun. He saw Mercado reach for a black handle or object in his pocket. 1

       Baltazar yelled, “Pumba, we don’t need to do this,” but Mercado

continued advancing toward Baltazar.               Fearing for his life, Baltazar

brought the gun forward and remembered “taking aim at the ground and

pulling the trigger.” Baltazar claimed he did not intend to hit Mercado,

but he did intend to scare him.             When Baltazar looked up, he was

“shocked” and “confused” that he hit Mercado. Baltazar reentered the car

and told Garcia to drive.

       Detective Aaron Entriken of the Des Moines Police Department

testified regarding his investigation of Mercado’s death. He interviewed

Mercado’s girlfriend, who was walking behind Mercado when the shooting

happened.      Mercado’s girlfriend indicated to Detective Entriken that

Mercado took off running as the shots were fired. She stated the gunfire

was very quick.

       During trial, Baltazar sought to admit evidence of Mercado’s violent

disposition. The district court refused to admit two surveillance videos—

one depicting a fight at a convenience store the day before Mercado’s death

and one depicting a fight on Oakland Avenue a few minutes before



       1Des  Moines police located a lighter, a phone, and a pair of red-handled channel
lock pliers on Mercado’s body.
                                        7

Mercado’s death.     The district court refused to admit the videos but

allowed two detectives to testify about the contents.

      Prior to submission of the case—and without objection from

Baltazar—the jury was instructed in part,

                            INSTRUCTION NO. 20

            The defendant claims he acted with justification.

            A person may use reasonable force to prevent injury to
      the defendant. The use of this force is known as justification.

            Reasonable force is only the amount of force a
      reasonable person would find necessary to use under the
      circumstances to prevent death or injury.

            A person can use deadly force against another if it is
      reasonable to believe that such force is necessary to avoid
      injury or risk to one’s life or safety, or it is reasonable to believe
      that such force is necessary to resist a like force or threat.

             The State must prove the defendant was not acting with
      justification.

                            INSTRUCTION NO. 21

            A person is justified in using reasonable force if he
      reasonably believes the force is necessary to defend himself
      from any imminent use of unlawful force.

           If the State has proved any one of the following
      elements, the defendant was not justified:

           1. The defendant started or continued the incident
      which resulted in death.

           2. An alternative course of action was available to the
      defendant.

            3. The defendant did not believe he was in imminent
       danger of death or injury and the use of force was not
       necessary to save him.

            4. The defendant did not have reasonable grounds for
      the belief.

            5. The force used by defendant was unreasonable.

            ....
                                            8
                                 INSTRUCTION NO. 25

              Concerning element number 2 of Instruction No. 21, if
       a defendant is confronted with the use of unlawful force
       against him, he is required to avoid the confrontation by
       seeking an alternative course of action before he is justified in
       repelling the force used against him. However, there is an
       exception.

               If the alternative course of action involved a risk to his
       life or safety, and he reasonably believed that, then he was not
       required to take or use the alternative course of action to avoid
       the confrontation, and he could repel the force with
       reasonable force including deadly force.

(Emphases added.) The jury convicted Baltazar of first-degree murder,

finding the State established beyond a reasonable doubt that the

commission of the offense involved a dangerous weapon. 2 The district
court sentenced Baltazar to life in prison.

       Baltazar appealed his judgment and sentence arguing counsel was

ineffective for failing to object to the outdated justification instruction.

Baltazar further argued the district court erred in overruling his motion

for judgment of acquittal and that the district court abused its discretion

in allowing only certain character evidence of the victim. We transferred

the case to the court of appeals. The court of appeals determined the

district court did not abuse its discretion in excluding the character
evidence of the victim and that there was sufficient evidence for the jury

to conclude Baltazar acted with specific intent to kill. However, the court

of appeals reversed Baltazar’s conviction and remanded for a new trial

because it presumed the “alternative course of action” instruction was

       2A   special interrogatory stated,
       Did the State of Iowa establish beyond a reasonable doubt that at the time
       of the commission of the offense the defendant or someone he aided and
       abetted, represented they were in the immediate possession and control of
       a dangerous weapon, displayed a dangerous weapon in a threatening
       manner, or was armed with a dangerous weapon . . . .
The jury answered “yes” to the special interrogatory.
                                      9

prejudicial and could not “say the record affirmatively establishes the jury

would have rejected his justification defense without the erroneous

instructions.”

      We granted the State’s application for further review.

      II. Standard of Review.

      We have the discretion, when we grant a further review application,

to review any issue raised on appeal. State v. Marin, 788 N.W.2d 833, 836

(Iowa 2010), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880

N.W.2d 699, 707–08, 708 n.3 (Iowa 2016); see State v. Effler, 769 N.W.2d

880, 883 (Iowa 2009) (“[E]fficient use of judicial resources will sometimes

prompt our court to rely on the disposition made by the court of appeals

on some issues and address only those issues that merit additional

consideration.”). We exercise that discretion here. We will only address

whether trial counsel breached an essential duty and whether the district

court abused its discretion by excluding certain character evidence of the

victim. The court of appeals decision will stand as the final decision for

the remaining issue. See State v. Walker, 856 N.W.2d 179, 184 (Iowa

2014); Marin, 788 N.W.2d at 836.

      We review ineffective-assistance-of-counsel claims de novo. State v.

Ondayog, 722 N.W.2d 778, 783 (Iowa 2006). “Ineffective-assistance-of-

counsel claims require a showing by a preponderance of the evidence both

that counsel failed an essential duty and that the failure resulted in

prejudice.” State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016).

      Rulings on the admission or exclusion of evidence are reviewed for

an abuse of discretion. See State v. Williams, 929 N.W.2d 621, 628 (Iowa

2019).
                                      10

      III. Analysis.

      A. Ineffective Assistance—Jury Instruction on Justification.

The Sixth Amendment to the United States Constitution and article I,

section 10 of the Iowa Constitution guarantee the right to “effective”

assistance of counsel. Ondayog, 722 N.W.2d at 784 (quoting Powell v.

Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 65 (1932)). Relying on Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), Baltazar claims his

counsel failed to object to the justification instruction and prejudice

resulted. Baltazar does not suggest the right to effective counsel under

the Iowa Constitution should be interpreted differently from its federal

counterpart, and we proceed to address his claim under the Strickland

standard.       See Ondayog, 722 N.W.2d at 784 (applying the Strickland

standard under both Constitutions).

      The Strickland standard requires establishment of its two-prong test

in order to demonstrate the ineffectiveness of counsel: (1) counsel failed to

perform an essential duty, and (2) prejudice resulted from this failure.

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland, 466

U.S. at 687–88, 104 S. Ct. at 2065). Failure to prove either prong is fatal

to an ineffective-assistance-of-counsel claim. State v. Liddell, 672 N.W.2d

805, 809 (Iowa 2003).

      Under the first prong, we presume the attorney competently

performed his or her duties. State v. Ross, 845 N.W.2d 692, 698 (Iowa

2014).    A defendant must rebut the presumption of competence by

showing     a    preponderance   of   the   evidence   that   “trial   counsel’s

‘representation fell below an objective standard of reasonableness.’ ”

Ondayog, 722 N.W.2d at 785 (quoting Strickland, 466 U.S. at 688, 104

S. Ct. at 2064). “Counsel breaches an essential duty when counsel makes

such serious errors that counsel is not functioning as the advocate the
                                      11

Sixth Amendment guarantees.” Ross, 845 N.W.2d at 698. This is more

than a showing that a trial strategy backfired or that another attorney

would try the case differently. Id.

      To establish prejudice under the second prong, “a defendant must

show a reasonable probability that the result of the trial would have been

different.”   State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015).        “A

reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Ondayog, 722 N.W.2d at 784 (quoting Strickland, 466

U.S. at 694, 104 S. Ct. at 2068).

      1. Essential duty.     Baltazar argues his counsel breached an

essential duty by not objecting to the outdated justification instruction

when he asserted the justification of self-defense and defense of others.

See Iowa Code §§ 704.1, .3 (2018). He contends the outdated instruction

negated his justification claim by stating an alternative course of action

was available.

      Justification is a statutory defense that permits a defendant to use

reasonable force to defend himself or herself.      State v. Stallings, 541

N.W.2d 855, 857 (Iowa 1995).          “A person is justified in the use of

reasonable force when the person reasonably believes that such force is

necessary to defend oneself or another from any actual or imminent use

of unlawful force.” Iowa Code § 704.3.

      The Iowa legislature defined “reasonable force” in 1978 when it

adopted the Iowa Criminal Code. See 1976 Iowa Acts. ch. 1245, ch. 1,

§ 401 (codified at Iowa Code § 704.1 (1979)). We noted the 1978 revision

was “primarily a restatement of prior law.” State v. Delay, 320 N.W.2d

831, 834 (Iowa 1982). In 1981, the Iowa legislature amended “reasonable

force” and defined it as
                                      12
      that force and no more which a reasonable person, in like
      circumstances, would judge to be necessary to prevent an
      injury or loss and can include deadly force if it is reasonable
      to believe that such force is necessary to avoid injury or risk
      to one’s life or safety or the life or safety of another, or it is
      reasonable to believe that such force is necessary to resist a
      like force or threat. Reasonable force, including deadly force,
      may be used even if an alternative course of action is available
      if the alternative entails a risk to life or safety, or the life or
      safety of a third party, or requires one to abandon or retreat
      from one’s dwelling or place of business or employment.

1981 Iowa Acts. ch. 204, § 2 (codified at Iowa Code § 704.1 (1983)). This

remained the definition of “reasonable force” for thirty-five years. In 2017,
the Iowa legislature deleted the alternative-course-of-action language and

added the stand-your-ground provision:

       A person who is not engaged in illegal activity has no duty to
       retreat from any place where the person is lawfully present
       before using force as specified in this chapter.

2017 Iowa Acts. ch. 69, § 37 (codified at Iowa Code § 704.1(3) (2018)). The

amendment took effect July 1, 2017, prior to Mercado’s death. See Iowa

Code § 3.7(1). Despite the legislature’s removal of “alternative course of

action,” the district court instructed the jury with an outdated version of

section 704.1 by stating Baltazar was “required to avoid the confrontation

by seeking an alternative course of action before he [was] justified in

repelling the force used against him.”

      Baltazar now contends the 2017 amendment eliminated his

statutory duty to retreat—a benefit he did not receive under the outdated

jury instructions. Because the jury was not instructed on the stand-your-

ground provision of section 704.1(3), he asserts trial counsel was

ineffective, warranting retrial.

      The State contends the 2017 amendment changed—but did not

eliminate—the duty to follow an alternative course of action. According to
                                       13

the State, like the former version of the statute, the current statutory

language implies a duty to retreat.

      Prior to adoption of the Iowa Criminal Code, Iowa caselaw recognized

an implied duty to follow an alternative course of action. See State v.

Cruse, 228 N.W.2d 28, 30 (Iowa 1975) (“[H]e must retreat as far as is

reasonable and safe before taking his adversary’s life, except in his home

or place of business[.]”); State v. Badgett, 167 N.W.2d 680, 683 (Iowa 1969)

(same); State v. Bennett, 128 Iowa 713, 715, 105 N.W. 324, 325 (1905)

(“The appellant contends that the general rule that a person assaulted

must retreat, if he may safely do so before taking the life of his

assailant . . . is not applicable to this case, because the defendant was on

his own premises and was therefore not bound to retreat . . . .”); State v.

Jones, 89 Iowa 182, 187, 56 N.W. 427, 428 (1893) (“If the danger which

appears to be imminent can be avoided in any other way, as by retiring

from the conflict, the taking of the life of the assailant is not excusable.”).

      The duty to follow an alternative course of action was impliedly

recognized in the 1978 criminal code revision.           See 1976 Iowa Acts.

ch. 1245, ch. 1, § 401 (codified at Iowa Code § 704.1 (1979)). The statute

permitted the use of force “necessary to prevent an injury or loss . . . even

if an alternative course of action is available if the alternative entails a risk

to one’s life or safety.” Id. Therefore, the 1978 language set forth the

exception to following an alternative course of action and implied a general

duty to follow an alternative course of action if the exception did not apply.

See id. Caselaw in the years following the 1978 revision continued to

recognize that the implied duty to follow an alternative course of action

was a disqualifying factor for justification. See, e.g., State v. Shanahan,

712 N.W.2d 121, 134 (Iowa 2006); State v. Thornton, 498 N.W.2d 670, 673

(Iowa 1993); State v. Rupp, 282 N.W.2d 125, 127 (Iowa 1979).
                                      14

      We agree the 2017 amendment changed—but did not eliminate—the

implied duty to follow an alternative course of action. If there is no duty

to retreat when a person is not engaged in illegal activity or lawfully

present, then by implication the duty to retreat remains if the activity is

illegal or the presence unlawful. See Kidd v. Alabama, 105 So. 3d 1261,

1264 (Ala. Crim. App. 2012) (unlawful possession of firearm was criminal

activity that imposed a duty to retreat).

      The State contends Baltazar engaged in an illegal activity that

disqualified him from asserting the justification of “stand your ground.”

Specifically, at the very least, Baltazar was engaged in criminal activity by

carrying his handgun in public without a permit. See Iowa Code § 724.4(1)

(2018) (carrying weapons). Baltazar testified he had a handgun on him

when Garcia picked him up. Baltazar then kept the handgun in the car

while he looked to confront Mercado. After Baltazar directed Garcia to

stop the car next to Mercado, Baltazar grabbed the handgun and stepped

out of the car with it at his side. Baltazar testified that at the time of this

incident, he was only nineteen years old. The State explains an exception

to the criminal act of carrying weapons is the existence of a valid permit.

See id. § 724.4(4)(i). However, the State points out that Iowa law prohibits

the issuance of a nonprofessional permit to anyone less than twenty-one

years old and prohibits the issuance of a professional permit to anyone

less than eighteen years old. See id. § 724.8(1). Baltazar presented no

evidence concerning whether he was in possession of a valid permit,

professional or otherwise.    In addition, Baltazar armed himself with a

handgun with the purpose to track down and confront Mercado. This

conduct was likely outside the limits of a valid permit and was likely a

violation of other criminal statutes. See id. § 724.4(4)(i) (carrying weapons

permit); see also id. § 708.1(2)(c) (assault by pointing or displaying a
                                     15

firearm); id. § 708.8 (going armed with intent). Moreover, the jury found

Baltazar represented he was “in the immediate possession and control of

a dangerous weapon, displayed a dangerous weapon in a threatening

manner, or was armed with a dangerous weapon” during Mercado’s

murder.

      It is Baltazar’s position the implied duty to retreat involves only

illegal activities germane to the use of force. See id. § 704.1(3). Baltazar

suggests aggressively threatening or assaulting a recipient of violence are

such qualifying activities.    He claims, however, his possession of a

handgun, legal or otherwise, is irrelevant to the justification issue. We

disagree with this assertion. Baltazar did not simply possess a handgun

in an irrelevant way. He possessed a handgun in a way that is germane

to the use of force.    Baltazar’s own testimony revealed he sought to

confront Mercado and he further admitted using the handgun as

assurance to talk with Mercado and to get his attention. That handgun,

which Baltazar later fired, caused Mercado’s death. Even assuming the

implied duty to retreat involves only illegal activities germane to the use of

force, Baltazar’s possession of the handgun was directly related to the

shooting death of Mercado.      In this case, Baltazar’s possession of the

handgun was germane to the use of deadly force.

      We conclude the record established Baltazar engaged in an illegal

activity that disqualified him from asserting his justification. Therefore,

he was not entitled to an instruction regarding section 704.1(3)’s stand-

your-ground justification. Baltazar’s trial counsel did not fail to perform

an essential duty by not objecting to the outdated justification instruction.

“Counsel has no duty to raise an issue that has no merit.”           State v.

Fountain, 786 N.W.2d 260, 263 (Iowa 2010).
                                    16

      2. Prejudice.   On further review, the State argues the court of

appeals incorrectly applied the preserved-error standard, which presumes

prejudice.   Although we determined Baltazar’s ineffective-assistance-of-

counsel claim failed to satisfy the essential duty prong, we nonetheless

address the appropriate standard under the prejudice prong in an effort

to provide guidance for future cases.

      The court of appeals concluded, “[W]e cannot say the record

affirmatively establishes the jury would have rejected [Baltazar’s]

justification defense without the erroneous instructions.” It is true, of

course, that “[e]rrors in jury instructions are presumed prejudicial unless

‘the record affirmatively establishes there was no prejudice.’ ”   State v.

Murray, 796 N.W.2d 907, 908 (Iowa 2011) (quoting State v. Hanes, 790

N.W.2d 545, 551 (Iowa 2010)). However, the presumed-prejudice standard

applies to preserved errors in jury instructions. See Hanes, 790 N.W.2d

at 548–49, 553, 555–56 (distinguishing between standards for preserved

and unpreserved error).

      We again reiterate the rule pronounced in State v. Maxwell, that an

ineffective-assistance-of-counsel claim based on failure to preserve jury

instruction error must demonstrate deficiency and prejudice:

      [I]neffective-assistance-of-counsel claims based on failure to
      preserve error are not to be reviewed on the basis of whether
      the claimed error would have required reversal if it had been
      preserved at trial. Rather, a defendant must demonstrate a
      breach of an essential duty and prejudice.

743 N.W.2d 185, 196 (Iowa 2008) (citation omitted); see Ross, 845 N.W.2d

at 697–98 (holding erroneous instruction claim raised in context of

ineffective assistance must show failure to perform essential duty and

prejudice); Ambrose, 861 N.W.2d at 556 (same); Fountain, 786 N.W.2d at

263–65 (same); Ondayog, 722 N.W.2d at 784 (same).
                                             17

       In this case, Baltazar cannot show a reasonable probability that the

outcome of his trial would have been different, and we reject his claim.

See Ambrose, 861 N.W.2d at 557.

       First, applying the new stand-your-ground provision would not have

changed the outcome of Baltazar’s trial. Because Baltazar engaged in an

illegal activity, 3 he had the implied duty to retreat pursuant to the new

stand-your-ground provision: “A person who is not engaged in illegal

activity has no duty to retreat from any place where the person is lawfully

present before using force as specified in this chapter.”                       Iowa Code

§ 704.1(3) (emphasis added).

       Secondly, had trial counsel removed the outdated alternative-

course-of-action language, Baltazar was still not justified in his use of force

if the State proved any of the remaining exceptions:

            1. The defendant started or continued the incident
       which resulted in death.

               ....

            3. The defendant did not believe he was in imminent
       danger of death or injury and the use of force was not
       necessary to save him.

             4. The defendant did not have reasonable grounds for
       the belief.

               5. The force used by defendant was unreasonable.

See Shanahan, 712 N.W.2d at 134.                   Evidence of Baltazar’s guilt was

overwhelming, disproving any theory of his justification.                    The evidence

proved Baltazar went looking for Mercado so he could confront him.

Baltazar knew Mercado hung out at Oakland Avenue.                         When Baltazar


        3Baltazar’s conduct was likely outside the limits of a valid permit and was likely a

violation of other criminal statutes. See Iowa Code § 724.4(4)(i) (carrying weapons
permit); see also id. § 708.1(2)(c) (assault by pointing or displaying a firearm); id. § 708.8
(going armed with intent).
                                     18

spotted Mercado, he ordered Garcia to stop the car next to Mercado. He

then exited the car with his handgun. Two eyewitnesses observed Mercado

running away when Baltazar started shooting at him.            The autopsy

confirmed two bullets entered Mercado’s body traveling from his back to

his front. The handgun Baltazar used was semiautomatic, requiring he

pull the trigger for each of the five shots. After shooting Mercado, Baltazar

returned to the car and commanded Garcia to drive.          Baltazar stated,

“Man, I shot the mother-fucker.        You saw that mother-fucker fall.”

Baltazar then proceeded to run from Des Moines police, following the car

crash, escaping down into a creek and wading approximately seventy-five

yards into a drainage pipe. Given this overwhelming evidence, there is no

reasonable probability that the result of Baltazar’s trial would have been

different.

      Baltazar cannot show prejudice resulted from his trial counsel’s

failure to object to the outdated justification instruction. Accordingly, his

ineffective-assistance-of-counsel claim must fail on the second prong of

Strickland as well. See Liddell, 672 N.W.2d at 809.

      B. Character Evidence of Victim. Baltazar asserts the district

court erred in excluding two videos depicting Mercado’s violent tendencies,

resulting in prejudice to his self-defense claim. The district court refused

to admit the videos, but allowed the detectives to testify about the

contents. It ruled,

            [The detectives] can say what [they] saw, but I think [the
      videos are] too prejudicial because it allows the jury to
      speculate, and it allows also—it’s unfair to the State in that it
      gives you no opportunity to explain those two events
      whatsoever.

             It’s confusing to the jury. It’s isolated. You don’t know
      exactly what was going on, especially when there’s no sound
      to it. So I have a problem with that.
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                However, they can describe what they saw in the video,
         and say “Yeah, we saw him punching and, therefore, we think
         he’s violent.” That’s fine.

Baltazar argues the videos were relevant, specific instances of Mercado’s

conduct and demonstrated his genuine fear of Mercado. Because Baltazar

did not know about the prior fights, the State argues the videos were not

admissible to prove Mercado’s character.

         Iowa Rule of Evidence 5.405 is entitled “Methods of proving

character” and states,

               a. By reputation or opinion.       When evidence of a
         person’s character or character trait is admissible, it may be
         proved by testimony about the person’s reputation or by
         testimony in the form of an opinion. On cross-examination of
         the character witness, the court may allow an inquiry into
         relevant specific instances of the person’s conduct.

               b. By specific instances of conduct. When a person’s
         character or character trait is an essential element of a charge,
         claim, or defense, the character or trait may also be proved by
         relevant specific instances of the person’s conduct.

In Williams, we addressed the uncertainty surrounding the application of

rule 5.405.      929 N.W.2d at 634–36.          Williams held that “a defendant

asserting self-defense or justification may not prove the victim’s aggressive

or violent character by specific conduct of the victim unless the conduct

was previously known to the defendant.” Id. at 636.

         The rule expressed in Williams controls here. Baltazar produced no

evidence that he knew about the specific conduct expressed on either

video.     Because Baltazar is asserting justification, he may not prove

Mercado’s aggressive or violent behavior through previously unknown

specific conduct. See id. at 634–37. Therefore, we conclude the district

court did not abuse its discretion in excluding the videos. 4



       4On direct appeal, the court of appeals determined Baltazar was permitted to

introduce evidence of Mercado’s character, but the district court’s exclusion was not an
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       IV. Conclusion.

       We affirm the judgment of the district court. The court of appeals

decision for the sufficiency of the evidence stands as the final decision. We

affirm the court of appeals decision addressing the character evidence for

the reasons expressed in this opinion. However, we vacate the court of

appeals decision addressing the ineffectiveness of counsel.

       DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.




abuse of discretion. The court of appeals did not have the benefit of our opinion in
Williams when it concluded character evidence of the victim was permitted.
