district court granted the petition in part, concluding that trial counsel 

was ineffective in failing to consult and call an expert witness to rebut the 

nurse's testimony as it related to the count of sexual assault, and denied 

the remaining claims in the petition. 

To prove ineffective assistance of counsel, a petitioner must 

demonstrate that counsel's performance was deficient in that it fell below 

an objective standard of reasonableness, and resulting prejudice such that 

there is a reasonable probability that, but for counsel's errors, the outcome 

of the proceedings would have been different. Strickland v. Washington, 

466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 

P.2d 504, 505 (1984) (adopting the test in Strickland). The performanceinquiry must be whether trial counsel's assistance was reasonable 

considering all the circumstances and under the prevailing professional 

norms at the time of the conduct at issue. Strickland, 466 U.S. at 688, 

690. "[S]trategic choices made after thorough investigation of law and 

facts relevant to plausible options are virtually unchallengeable; and 

strategic choices made after less than complete investigation are 

reasonable precisely to the extent that reasonable professional judgments 

support the limitations on investigation." Id. at 690. Both components of 

the inquiry must be shown, id. at 697, and the petitioner must 

demonstrate the underlying facts by a preponderance of the evidence, 

Means u. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). We give 

deference to the district court's factual findings if supported by substantial 

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evidence and not clearly erroneous but review the court's application of 

the law to those facts de novo. Lad,er v. Warden, 121 Nev. 682, 686, 120 

P.3d 1164, 1166 (2005). 

The State argues that the district court erred in granting 

relief on appellant's claim that trial counsel, Mr. Kevin Van Ry, was 

ineffective for failing to consult and call an expert witness to rebut the 

nurse's testimony. While not disputing the district court's determination 

of prejudice, the State argues that appellant failed to demonstrate that 

Mr. Van Ry's performance was constitutionally deficient. Specifically, the 

State argues that there was no evidence presented of what the 

professional norms require in a case when an "ostensibly qualified nurse" 

presents evidence of what she observed during a physical examination of a 

child-sexual-assault victim. The State further argues that the district 

court erroneously applied a subjective test when it referred to counsel's 

performance as "unprofessional." 

We conclude that the district court's determination that trial 

counsel was ineffective in failing to call an expert witness to rebut the 

nurse's testimony was supported by substantial evidence and was not 

clearly wrong. In this case, given the equivocal nature of the victim's 

testimony and given how critical the nurse's testimony was in proving the 

count of sexual assault, Mr. Van fly's failure to investigate, consult, and 

present expert testimony was objectively unreasonable under the totality 

of the circumstances and the prevailing professional norms. Appellant's 

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former trial counsel, Mr. Carl Hylin, 2who testified at the evidentiary 

hearing as to his experience in criminal defense, stated that after the 

preliminary hearing he felt the nurse was "reckless" in her description of 

the examination and findings and understood that he would need an 

expert to dispute this evidence. Testimony from an experienced criminal 

defense attorney may establish prevailing professional norms. 3 See 

Matylinsky v. Budge, 577 F.3d 1083, 1092 (9th Cir. 2009) (acknowledging 

that prevailing professional norms may be shown in various ways, 

including an "alternate attorney's determination challenging" trial 

counsel's decisions and practice standards set forth by the American Bar 

Association). 4In fact, Mr. Hylin secured funds from the court, found an 

expert, and filed a notice of an expert, Dr. James Crawford-Jacubiak. Dr. 

Crawford's testimony at the evidentiary hearing seriously and 

substantially undermined the testimony of the nurse at trial in regard to 

2Mr. Hylin negotiated a guilty plea, which appellant ultimately 

withdrew. Mr. Hylin was replaced by Mr. Van Ry. 

3To the extent that the district court may have determined that Mr. 

Hylin could not testify as to the prevailing professional norms, we 

conclude that determination was in error. 

4ABA standards in effect at the time of the representation in this 

case provided that "[dlefense counsel should conduct a prompt 

investigation of the circumstances of the case and explore all avenues 

leading to facts relevant to the merits of the case." ABA Standards for 

Criminal Justice: Prosecution Function and Defense Function, Standard 4- 

4.1 (3d ed. 1993). 

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the count of sexual assault. At the evidentiary hearing, Mr. Van Ry could 

not recall what he had done to investigate the case and could provide no 

reasonable explanation for not consulting and calling an expert witness in 

regard to rebutting the testimony of the nurse regarding the sexualassault count. Thus, the decision not to consult or call an expert witness 

in regard to the sexual-assault count cannot be deemed a strategic one in 

this case. Based on the testimony presented at the evidentiary hearing, 

appellant demonstrated that his trial counsel's performance was 

deficient. 5 Further, as the State does not dispute the finding of prejudice, 

the district court did not err in determining that counsel was ineffective in 

regard to the sexual-assault count. 

Appellant argues that the district court erred in concluding 

that the deficiency in failing to call an expert to rebut the nurse's 

testimony did not apply to the lewdness counts as well. Appellant fails to 

demonstrate error. Dr. Crawford's testimony related only to the sexualassault count. While the testimony of M.N. may have been equivocal 

regarding the sexual assault count, her testimony regarding the lewdness 

count was not equivocal. Likewise the testimony of the other victims was 

not equivocal regarding the lewdness counts. Appellant fails to 

5Reviewing the district court's order as a whole and in context, the 

district court applied an objective test in evaluating counsel's performance. 

Reference to Mr. Van Ry's performance as "unprofessional" was aimed at 

the State's concern regarding the prevailing professional norms. 

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demonstrate that counsel's failure to present an expert to rebut the 

nurse's testimony had a reasonable probability of altering the outcome at 

trial regarding the lewdness counts. 

Next, appellant argues that trial counsel was ineffective for 

failing to call an expert witness, Dr. William O'Donahue, to challenge the 

reliability of the accusations given alleged defects in the forensic 

interviews. Appellant fails to demonstrate that it was objectively 

unreasonable not to present this testimony as any inconsistencies or 

motivation to tell a particular story could have been elicited in other ways. 

• It is for the jury to determine the credibility of witnesses, Walker v. State, 

91 Nev. 724, 726, 542 P.2d 438, 439 (1975), and Dr. O'Donahue 

acknowledged that any flaws in the forensic interview did not mean that 

the girls were untruthful, but that any flaws could leave the interviews 

open to other interpretations. Even assuming that counsel was deficient 

for failing to present testimony regarding the interviews, appellant fails to 

demonstrate that there was a reasonable probability of a different 

outcome had trial counsel presented testimony from this expert in this 

case. 

Next, appellant argues that trial counsel was ineffective for 

presenting no defense and conceding appellant's guilt to the lewdness 

counts in closing arguments without his consent. Appellant failed to 

demonstrate that his trial counsel's performance was deficient or that he 

was prejudiced. Mr. Van Ry testified that appellant admitted to him that 

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J. 

he had committed the physical acts forming the basis for the lewdness 

counts and that his strategy was to concede that the physical acts occurred 

but argue that appellant lacked the required specific intent for the 

offenses. Appellant fails to demonstrate that counsel's strategy was 

unreasonable under the circumstances in this case; appellant's consent to 

the strategy was not required. See Armenta-Carpio u. State, 129 Nev. , 

306 P.3d 395, 398 (2013). Appellant further fails to demonstrate that 

there was a reasonable probability of a different outcome had trial counsel 

not conceded that appellant committed the physical acts underlying the 

lewdness counts or presented some other defense to the lewdness counts. 

Finally, appellant appears to argue that the remaining claims 

in his petition were improperly denied, but he fails to provide any cogent 

argument. We therefore decline to consider these claims. See Maresca v. 

State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

Gibbons 

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(0) 1947A 4117D), 
cc: Hon. Jerome Polaha, District Judge 

Federal Public Defender/Las Vegas 

Attorney GenerallCarson City 

Washoe County District Attorney 

Washoe District Court Clerk 

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(0) 1947A 74)2A:(9