application of the law to those facts de novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
First, appellant argues that his trial counsel was ineffective
for failing to impeach the victim with her inconsistent statements, which
appellant asserts would have demonstrated that the victim consented to
the sexual contact. Appellant fails to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Counsel cross-
examined the victim regarding her inconsistent statements. At the
evidentiary hearing, counsel testified that he did not wish to question the
victim about many of her previous statements because they would have
highlighted appellant's actions that were damaging to his defense. In
addition, the victim testified at trial that she initially did not admit to the
sexual contact with appellant out of shame, embarrassment, and fear that
appellant would harm her if she told others. Appellant fails to
demonstrate a reasonable probability of a different outcome had counsel
made further efforts to question the victim regarding inconsistent
statements given the evidence that the sexual act occurred against the
victim's will or under conditions in which appellant knew or should have
known that the victim was mentally or physically incapable of resisting as
the victim testified that she was extremely intoxicated during the sexual
contact. See Shannon v. State, 105 Nev. 782, 790, 783 P.2d 942, 947
(1989) (citing NRS 200.366). Therefore, the district court did not err in
denying this claim.
Second, appellant argues that his trial counsel was ineffective
for failing to elicit certain testimony from a child witness and for failing to
call two witnesses to testify, as appellant asserts that their statements
would have bolstered his defense that the sexual activity was consensual
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and show that the victim had altered her story regarding sexual activity
with appellant. Appellant fails to demonstrate that his counsel's
performance was deficient or that he was prejudiced. At the evidentiary
hearing, counsel discussed his tactical decisions related to these witnesses.
Counsel stated that he felt that the testimony of the child witness was not
harmful to the defense and he did not want to question her further out of
fear that she would say things that were harmful. In addition, one of the
witnesses told the defense investigator that he would not be helpful to the
defense and counsel stated that was why the defense did not present his
testimony. Counsel also stated that he believed any positives from these
witnesses would have been outweighed by the negative information that
would have also been highlighted for the jury. Tactical decisions such as
this one "are virtually unchallengeable absent extraordinary
circumstances," Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989),
which appellant does not demonstrate.
Appellant also fails to demonstrate prejudice from counsel's
decisions regarding these witnesses. The witnesses' testimony at the
evidentiary hearing provided further evidence of appellant's grooming of
the victim or was duplicative of information that was actually presented at
trial. Accordingly, appellant fails to demonstrate a reasonable probability
of a different outcome at trial had counsel presented the testimony at
issue. Therefore, the district court did not err in denying this claim.
Third, appellant argues that his trial counsel was ineffective
for failing to properly authenticate and introduce a tape recording of the
victim. Appellant fails to demonstrate that his trial counsel's performance
was deficient or that he was prejudiced. Counsel asked the child victim if
she consented to the recording and she stated she could not remember the
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discussion with appellant. As appellant fails to demonstrate that the tape
recording was made with the victim's consent, appellant fails to
demonstrate that there were any actions that counsel could have properly
performed which would have authenticated the tape recording. See NRS
200.620; see also Lane v. Allstate Ins. Co., 114 Nev. 1176, 1179-80, 969
P.2d 938, 940-41 (1998). Appellant fails to demonstrate a reasonable
probability of a different outcome at trial had counsel made further
attempts to introduce the tape recording as he fails to demonstrate that
the victim consented to the recording. Therefore, the district court did not
err in denying this claim. 1
Fourth, appellant argues that counsel was ineffective for
failing to argue that the indictment did not provide notice of the allegation
that appellant groomed the victim in order to gain her acquiescence to
sexual acts. Appellant fails to demonstrate that his trial counsel's
performance was deficient or that he was prejudiced. Counsel testified
that he had sufficient notice of the State's theory that appellant groomed
the victim. Appellant fails to demonstrate a reasonable probability of a
different outcome at trial had counsel argued the indictment did not
provide sufficient notice of the State's theory as the information provided a
lAppellant also asserts that the district court erred in declining to
admit the tape recording into evidence at the evidentiary hearing. This
court determined on direct appeal that the tape recording was
inadmissible because appellant failed in his attempt to demonstrate that
the victim remembered the conversation or consented to the recording,
Rosky v. State, Docket No. 47407 (Order of Affirmance, January 24, 2008).
Appellant fails to demonstrate that the district court erred in following
this court's determination as he failed to provide any additional evidence
that the victim actually consented to being recorded.
4
plain and concise statement of the essential facts of the charged offenses.
See NRS 173.075(1). Therefore, the district court did not err in denying
this claim.
Fifth, appellant argues that trial counsel was ineffective for
failing to encourage appellant to testify at trial. Appellant fails to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. At the evidentiary hearing, appellant conceded that
counsel's advice to not testify due to concerns that appellant's prior bad
acts, which included a previous conviction for lewdness with a child victim,
would be heard by the jury was reasonable given the allegations by a child
victim in this case. In addition, appellant personally stated to the trial
court that he had discussed testifying with counsel and was satisfied with
counsel's advice. Appellant fails to demonstrate a reasonable probability
of a different outcome at trial had counsel encouraged him to testify.
Therefore, the district court did not err in denying this claim.
Sixth, appellant argues counsel's errors cumulatively amount
to ineffective assistance of counsel. As appellant fails to demonstrate any
deficiency or prejudice for any of his previous claims, he fails to
demonstrate that cumulative counsel error resulted in ineffective
assistance. Therefore, the district court did not err in denying this claim.
Next, appellant argues that the district court erred in refusing
to allow appellant to subpoena the victim to testify at the post-conviction
evidentiary hearing. The district court concluded that the victim's
testimony was not necessary at the evidentiary hearing because she had
testified multiple times in the past and appellant had made no showing
that the victim's testimony would be different should she be forced to
testify again, essentially concluding that further testimony by the victim
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would be cumulative and unnecessary for the post-conviction proceedings.
Appellant fails to demonstrate the district court abused its discretion in
concluding that testimony from the victim was not necessary for the post-
conviction proceedings. Therefore, the appellant fails to demonstrate that
he is entitled to relief for this claim.
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 2
Hardesty
-4IL
•
-.Ow 41, 'J
Parraguirre
Cherry
cc: Hon. Elliott Sattler, II, District Judge
Mary Lou Wilson
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
2 Appellant filed an amended motion asking this court to direct the
clerk of the district court to transmit two original exhibits to this court
that the district court declined to admit during the post-conviction
proceedings. Our review demonstrates that the original exhibits were not
necessary for our consideration of this matter. See NRAP 30(d).
Therefore, we deny appellant's motion.
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