application of the law to those facts de novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
First, appellant claims that trial counsel was ineffective for
failing to retain and present an expert to refute the findings of the nurse
who examined the victim after the sexual assault. Appellant claims that
had trial counsel retained an expert, that expert would have testified that
there were no injuries to the victim in this case. Appellant failed to
demonstrate he was prejudiced. The district court concluded that the
expert's testimony would not have resulted in a reasonable probability of a
different outcome at trial. Substantial evidence supports the decision of
the district court. The expert conceded that the absence of injury in sexual
assault cases is just as likely as the presence of physical injury. Further,
appellant admitted to having forceful sex with the victim. Lokken v. State,
Docket No. 49147 (Order of Affirmance, June 4, 2008). Therefore, the
district court did not err in denying this claim.
To the extent that appellant claims that the district court
erred by not taking into consideration a case in front of a different district
court that found trial counsel in the other case ineffective for failing to
retain an expert, appellant fails to demonstrate he is entitled to relief.
The facts and circumstances of the two cases were vastly different and, as
stated above, appellant failed to demonstrate that calling the expert at
trial would have resulted in a reasonable probability of a different
outcome. Therefore, the district court did not err by not taking the other
case into consideration in its decision.
Second, appellant claims that trial counsel was ineffective for
failing to encourage appellant to testify. The State argues that this claim
differs from his claim raised below in his supplemental petition. In his
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supplemental petition, appellant claimed that trial counsel was ineffective
for advising him not to testify and that he waived his right to testify
"under duress." While the claim on appeal is worded differently, it is
essentially the same claim, and therefore, we elect to consider the claim,
c.f Walch v. State, 112 Nev. 25, 30, 909 P.2d 1184, 1187 (1996) (stating
that generally this court need not address issues raised for the first time
on appeal), and we conclude that appellant failed to demonstrate that
counsel was deficient.
At the evidentiary hearing, trial counsel testified that he did
not advise appellant either way. He merely presented the pros and cons of
testifying and left appellant to make the decision. Appellant testified that
trial counsel discussed the pros and cons but also claimed that trial
counsel told him he would not be able to appeal if he testified because he
would be admitting to conduct constituting the crimes charged. Trial
counsel stated he never told appellant he could not appeal if he testified.
After the evidentiary hearing, the district court determined that appellant
failed to demonstrate that trial counsel told him not to testify, appellant
understood it was his choice whether to testify, and appellant chose not to.
Substantial evidence supports the decision of the district court, and
therefore, the district court did not err in denying this claim.
Third, appellant claims that trial counsel was ineffective for
failing to thoroughly investigate witnesses who were called at trial and
other witnesses who were not called at trial. Appellant failed to
demonstrate that he was prejudiced. After the evidentiary hearing, the
district court concluded that the additional information that appellant
wanted trial counsel to present through the witnesses was information
that was already presented at trial through other witnesses and that the
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information was merely cumulative. Further the district court concluded
that these witnesses may have weakened appellant's case because the
witnesses contradicted each other regarding how long the victim and
appellant were together, the type of sexual activity engaged in, who was
present outside the home of the appellant after the crime occurred, when
the crime occurred, and whether the door of appellant's bedroom was open
or closed. Substantial evidence supports the decision of the district court,
and therefore, the district court did not err in denying this claim.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
Parraguirre
cc: Hon. Connie J. Steinheimer, District Judge
Mary Lou Wilson
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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