application of the law to those facts de novo. Lacier v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005).
First, appellant argues that his trial counsel was ineffective
for failing to investigate the condition of a window to ascertain if the
window lock was actually broken. The victim stated that appellant
crawled through a bedroom window that had a broken lock and did so
because the bedroom door was locked. Appellant fails to demonstrate that
his trial counsel's performance was deficient or that he was prejudiced.
The victim testified that the incidents where appellant crawled through a
window happened a number of years in the past and at a residence where
they no longer lived. Under these circumstances, appellant fails to
demonstrate that reasonably diligent counsel would have investigated the
window's condition or that there was a reasonable probability of a
different outcome had counsel performed such investigation. Therefore,
the district court did not err in denying this claim.
Second, appellant argues that his trial counsel was ineffective
for failing to obtain phone records of the phone calls between appellant
and the victim. Appellant also argues that counsel should have inquired
into the victim's destruction of the cell phone. Appellant fails to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. The victim testified that appellant often called her, but
that there were occasions where she called appellant. Appellant fails to
demonstrate that reasonably diligent counsel would have sought further
information regarding those calls or that the actual records of those calls
would have had a reasonable probability of altering the outcome of the
trial In addition, the victim testified that she destroyed the phone and
appellant fails to demonstrate a reasonable probability of a different
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outcome at trial had counsel attempted to obtain records from the
destroyed phone. Therefore, the district court did not err in denying this
claim.
Third, appellant argues that his trial counsel was ineffective
for failing to interview the victim's mother. Appellant fails to demonstrate
that his trial counsel's performance was deficient or that he was
prejudiced. Counsel testified at the evidentiary hearing that his
investigator interviewed the mother and that counsel did not want to call
her as a witness because she and appellant had had a sexual relationship.
Appellant fails to demonstrate that reasonably diligent counsel would
have personally interviewed the mother or that there was a reasonable
probability of a different outcome at trial had counsel personally
interviewed the mother. Therefore, the district court did not err in
denying this claim.
Fourth, appellant argues that his trial counsel was ineffective
for failing to investigate or retain an expert regarding "Triple C"
intoxication. The victim testified that she was under the influence of a
type of cold and cough medication she referred to as "Triple C" during two
of the sexual encounters. Appellant fails to demonstrate that his counsel's
performance was deficient or that he was prejudiced. Appellant failed to
demonstrate that reasonably diligent counsel would have sought expert
testimony regarding this information as the victim testified that she
consented to the sexual activity that occurred during the times she had
ingested medication. Moreover, appellant was only convicted of statutory
sexual seduction for those two encounters, and therefore, he fails to
demonstrate a reasonable probability of a different outcome had counsel
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sought further information regarding intoxication from cold and cough
medication. Therefore, the district court did not err in denying this claim.
Fifth, appellant argues that his trial counsel was ineffective
for failing to assert that the jury instructions and Nevada law regarding
sexual assault and consent violated appellant's constitutional rights.
Appellant asserts that counsel should have argued that Nevada's consent
law creates an improper irrefutable presumption, it improperly requires a
defendant to waive his rights against testifying, improperly shifts the
burden of proof to the defendant, and does not properly inform the jury
that consent can be inferred through conduct or non-auditory means.
Appellant argues that had counsel proposed different instructions and had
the jury been properly instructed they would have concluded that the
victim actually consented to the sexual contact because of video recordings
depicting the victim actively participating and agreeing to the sexual
activities with appellant. Appellant further argues that the recordings
and the victim's additional actions in this matter demonstrate that she
consented to all of the sexual activity that occurred. Appellant fails to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced.
"A rape victim is not required to do more than her age,
strength, and the surrounding facts and attending circumstances would
reasonably dictate as a manifestation of her opposition." McNair v. State,
108 Nev. 53, 57, 825 P.2d 571, 574 (1992) (citing Dinkens v. State, 92 Nev.
74, 78, 546 P.2d 228, 230 (1976)); see also Shannon v. State, 105 Nev. 782,
790, 783 P.2d 942, 947 (1989) (discussing that factors such as the victim's
age, maturity level, the influence of the defendant over the victim, and the
victim's act of feigning sleep evidenced that the sexual acts occurred
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against the victim's will). Moreover, "[s]ubmission is not the equivalent of
consent." McNair, 108 Nev. at 57, 825 P.2d at 574 (citing Tryon v. State,
567 P.2d 290, 293 (Wyo. 1977)). However, "a reasonable mistaken belief
as to consent is a defense to a sexual assault charge." Carter v. State, 121
Nev. 759, 766, 121 P.3d 592, 596 (2005). The jury was properly instructed
in this case as to these standards for sexual assault and consent in
Nevada.
Here, appellant was convicted of three counts of sexual assault
of a minor under 14, acquitted of four counts of sexual assault of a minor
under 14 and four counts of sexual assault of a minor under 16, and also
convicted of three counts of statutory sexual seduction. The victim
testified that when she was under 14, appellant entered her bedroom on a
number of occasions to engage in sexual activity, told her he would harm
her younger sister and father if she refused to have sex with him or if she
told others of the activity, bound her hands on one occasion, and slapped
her on another. In contrast, the actions depicted on the video occurred
after the victim had turned 14, the victim testified that she agreed to the
sexual activity at that point, and that she did not feel she had been
sexually assaulted during the activities depicted on the video.
Given the verdict, the jury concluded that the victim did not
consent to the sexual activity when she was under 14, but that she
consented to the acts that occurred after she had turned 14. The evidence
presented at trial demonstrates that the sexual acts for which appellant
was convicted of sexual assault 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. See Shannon, 105 Nev.
at 790, 783 P.2d at 947 (citing NRS 200.366). Appellant fails to
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demonstrate that reasonably competent counsel would have argued for
further instructions regarding consent under the circumstances of this
case. Moreover, appellant fails to demonstrate that objectively reasonable
counsel would have argued that Nevada's sexual assault and consent law
violated appellant's constitutional rights under these circumstances.
Appellant fails to demonstrate there was a reasonable probability of a
different outcome had counsel raised these types of arguments as there
was substantial evidence that the victim did not consent for the three
convictions of sexual assault. Therefore, the district court did not err in
denying this claim.
Sixth, appellant argues that his trial counsel was ineffective
for failing to investigate the law relating to the charges in this case.
Appellant fails to demonstrate either deficiency or prejudice for this claim.
Counsel testified at the evidentiary hearing that he was aware of the
sexual assault and consent laws regarding a charge involving a minor
victim. Appellant fails to demonstrate a reasonable probability of a
different outcome at trial had counsel performed more research regarding
these laws. Therefore, the district court did not err in denying this claim.
Seventh, appellant argues that his trial counsel was
ineffective for failing to object when the State argued that the victim was
not capable of consent due to her age. Appellant fails to demonstrate that
his counsel's performance was deficient or that he was prejudiced. The
State did not argue that the victim could not consent; rather it properly
argued that the victim's characteristics, including her age, demonstrated
that she did not legally consent to the sexual activity. See McNair, 108
Nev. at 57, 825 P.2d at 574. Appellant fails to demonstrate a reasonable
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probability of a different outcome had counsel objected. Therefore, the
district court did not err in denying this claim.
Eighth, appellant argues that his trial counsel was ineffective
for failing to assert that the instructions improperly failed to explain that
force is required for sexual assault. Appellant fails to demonstrate either
deficiency or prejudice for this claim as physical force or the threat of
physical force is not necessary for a crime of sexual assault. See Shannon,
105 Nev. at 790, 783 P.2d at 947. Moreover, the victim testified that
appellant threatened to harm her family members if she refused to submit
to sexual activity, that he bound her hands on one occasion, and slapped
her on another. Therefore, the district court did not err in denying this
claim.
Ninth, appellant argues that his trial counsel was ineffective
for failing to assert that there was insufficient evidence to convict
appellant. Appellant fails to demonstrate that his counsel's performance
was deficient or that he was prejudiced. Counsel argued that the State
had failed to prove the sexual assault and lewdness charges beyond a
reasonable doubt. Appellant fails to demonstrate a reasonable probability
of a different outcome at trial had counsel made further arguments of this
nature. Therefore, the district court did not err in denying this claim.
Tenth, appellant argues that his trial counsel was ineffective
for failing to argue that the jury instructions permitted the victim to
withdraw consent for sexual activity after the act had taken place.
Appellant argues that allowing the withdrawal of consent after completion
of the sexual act is an improper bill of pains and penalties. Appellant fails
to demonstrate that his counsel's performance was deficient or that he was
prejudiced. Nothing in the instructions or in Nevada law permits a victim
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to consent to sexual activity and then legally withdraw the consent at a
later time. Moreover, appellant's argument regarding a bill of pains and
penalties is misplaced. A bill of pains and penalties was traditionally the
same as a bill of attainder, except that the punishment was something
other than death. See United States v. Brown, 381 U.S. 437, 441-42 (1965)
(discussing that the punishments included "banishment, deprivation of the
right to vote, or exclusion of the designated party's sons from Parliament"
(footnotes omitted)). "A bill of attainder is any legislative act that applies
to named individuals or an easily ascertainable group in such a way as to
inflict punishment on them without a judicial trial." Spilotro v. State, ex
rel. Nevada Gaming Comm'n, 99 Nev. 187, 192, 661 P.2d 467, 470 (1983).
"On the other hand, if the enactment sets out criteria or a general
definition describing those who fall within its prohibitions, it is not a bill
of attainder." Id. Here, appellant was convicted pursuant to a judicial
trial and the laws under which he was convicted provided a general
definition of the prohibited activity. See NRS 200.364; NRS 200.366; NRS
200.368; NRS 200.710; NRS 200.730; NRS 201.230. Therefore, the district
court did not err in denying this claim.
Eleventh, appellant argues that his trial counsel was
ineffective for failing to argue that instructions 4, 7, 9, 10 and 28
permitted the jury to convict without considering whether the victim
consented and also eliminated a consent defense. Appellant fails to
demonstrate that his trial counsel's performance was deficient or that he
was prejudiced. Jury instructions are meant to be read together. See
Butler v. State, 120 Nev. 879, 903, 102 P.3d 71, 88 (2004). A different
instruction, no. 32, instructed the jury to consider whether the victim
consented to the sexual activity and that consent was a defense to sexual
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4
assault. Accordingly, appellant fails to demonstrate that reasonably
diligent counsel would have argued that the challenged instructions
improperly eliminated consent as a defense. Appellant also fails to
demonstrate a reasonable probability of a different outcome had counsel
raised this argument at trial. Therefore, the district court did not err in
denying this claim.
Twelfth, appellant argues that his trial counsel was ineffective
for failing to question the victim regarding her provocative clothing.
Appellant fails to demonstrate either deficiency or prejudice for this claim.
Counsel questioned the victim's sister regarding the sister's opinion that
the victim wore provocative clothing and appellant fails to demonstrate
that it was objectively unreasonable for counsel not to question the victim
in a similar manner. Appellant fails to demonstrate a reasonable
probability of a different outcome had counsel questioned the victim
regarding her clothing. Therefore, the district court did not err in denying
this claim.
Thirteenth, appellant argues that his trial counsel was
ineffective for failing to investigate the threatening notes appellant wrote
to the victim. Appellant fails to demonstrate that his counsel's
performance was deficient or that he was prejudiced. Appellant did not
demonstrate that any investigation into these notes would have uncovered
any helpful evidence or that any evidence of this sort would have had a
reasonable probability of producing a different outcome at trial. See
Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). Therefore, the
district court did not err in denying this claim.
Fourteenth, appellant argues that his trial counsel was
ineffective for failing to argue that the instruction regarding lewdness may
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have confused the jury because it instructed the jury that consent was not
a defense for lewdness with a child. Appellant fails to demonstrate either
deficiency or prejudice for this claim. As stated earlier, jury instructions
are meant to be read together. See Butler, 120 Nev. at 903, 102 P.3d at 88.
As the jury was properly instructed regarding consent involving a claim of
sexual assault and regarding lewdness with a child, appellant fails to
demonstrate that the separate instructions confused the jury. Therefore,
the district court did not err in denying this claim.
Fifteenth, appellant argues that his trial counsel was
ineffective for failing to request an instruction regarding statutory sexual
seduction. Appellant fails to demonstrate either deficiency or prejudice
because the jury was instructed on statutory sexual seduction and
convicted appellant of three counts of that crime. Therefore, the district
court did not err in denying this claim.
Sixteenth, appellant argues that his trial counsel was
ineffective for failing to make a challenge pursuant to Batson v. Kentucky,
476 U.S. 79 (1986), when the State struck three young male jurors.
Appellant fails to demonstrate deficiency for this claim as counsel
challenged the dismissal of these jurors based on their gender and the
district court denied that challenge. Appellant fails to demonstrate a
reasonable probability of a different outcome had counsel made further
arguments regarding the dismissal of these jurors. Therefore, the district
court did not err in denying this claim.
Next, appellant argues that his appellate counsel was
ineffective. To prove ineffective assistance of appellate counsel, a
petitioner must demonstrate that counsel's performance was deficient in
that it fell below an objective standard of reasonableness, and resulting
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prejudice such that the omitted issue would have had a reasonable
probability of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923
P.2d 1102, 1114 (1996). Appellate counsel is not required to raise every
non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983).
Rather, appellate counsel will be most effective when every conceivable
issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d
951, 953 (1989). Both components of the inquiry must be shown.
Strickland v. Washington, 466 U.S. 668, 697 (1984).
First, appellant argues that his appellate counsel was
ineffective for failing to argue that there was insufficient evidence to
support the convictions. Appellant fails to demonstrate that his counsel's
performance was deficient or that he was prejudiced. A review of the
record reveals that a rational juror could have found the elements of the
crimes beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008).
The victim testified with particularity regarding the numerous sexual
incidents and a video recording depicting appellant's sexual activity with
the minor victim was admitted at trial. See Meijia v. State, 122 Nev. 487,
493 & n.15, 134 P.3d 722, 725 & n.15 (2006). Appellant fails to
demonstrate a reasonable likelihood of success on appeal had counsel
argued there was insufficient evidence presented at trial to support the
convictions. Therefore, the district court did not err in denying this claim.
Second, appellant argues that his appellate counsel was
ineffective for failing to assert that when a jury instruction sets forth an
incorrect statement of the law and there was a general verdict, that the
conviction must be reversed. Appellant fails to demonstrate either
deficiency or prejudice. Appellant fails to demonstrate that any of the jury
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instructions given at trial misstated the law. Appellant fails to
demonstrate a reasonable likelihood of success on appeal had counsel
raised this argument. Therefore, the district court did not err in denying
this claim.
Third, appellant argues that his appellate counsel was
ineffective for failing to argue that the instructions did not match the
State's theories of the crimes. Appellant fails to demonstrate that his
counsel's performance was deficient or that he was prejudiced. Appellant
fails to demonstrate that the instructions were improper. Appellant fails
to demonstrate a reasonable likelihood of success on appeal had counsel
raised this argument. Therefore, the district court did not err in denying
this claim.
Next, appellant argues that the district court failed to consider
a claim raised below that his counsel was ineffective for failing to object
when the instructions did not match the State's theories. While the
• district court's order did not address this claim with specificity, the order
is clear that it denied relief for all of appellant's claims. Appellant does
not demonstrate that any error in failing to provide more detail for this
claim affected appellant's ability to seek full appellate review. Moreover,
appellant fails to demonstrate that he was entitled to relief for his
underlying claim, as the instructions were proper. Therefore, any error in
failing to specifically address this claim in detail was harmless. See NRS
178.598. Accordingly, appellant is not entitled to relief based on this
argument.
Finally, appellant argues that the district court erred in
denying his petition because prejudice should be presumed if the verdict
was based on incorrect jury instructions. Appellant fails to demonstrate
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that the instructions were incorrect and fails to demonstrate that, even if
such an error occurred, prejudice in the context of ineffective of counsel
should be presumed. Therefore, appellant is not entitled to relief based on
this argument.
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 1
Pic enng
40-11.AcLja4r
Parraguirre
J.
Saitta
cc: Hon. Abbi Silver, District Judge
Michael H. Schwarz
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'The State filed a motion to strike a portion of the reply brief on the
ground that new issues were raised that had not been presented in the
opening brief. The motion was denied because its resolution implicated
the merits of the appeal, but the court would determine on review of the
appeal whether any arguments in the reply brief should not be considered.
A review of appellant's briefs reveals that appellant did not improperly
exceed the scope of a reply brief. See NRAP 28(c).
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Chavez (Edilfredo) v. State
Combined Opinion