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 crossexamined 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 postconviction 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 4 

Parraguirre 

1, 

Cherry 

cc: Hon. Elliott Sattler, II, District Judge 

Mary Lou Wilson 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

2Appellant 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. 

'J 

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