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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 were ineffective 

for failing to hire an expert to review the DNA evidence and for failing to 

have the DNA evidence retested.' We conclude that substantial evidence 

supports the district court's decision to deny this claim. At the evidentiary 

hearing, trial counsel testified that they had consulted with a forensic 

DNA expert before trial and had her review all of the DNA reports and 

evidence. Thus, appellant's claim that trial counsel failed to obtain an 

expert is belied by the record. Further, trial counsel testified that, based 

on the DNA expert's advice and determination that the testing procedures 

were done correctly and that appellant was the source of the three 

separate DNA samples, trial counsel decided not to retest the DNA. The 

district court determined that the decision not to retest the DNA was a 

reasonable trial strategy in light of the expert's opinion and the fact that 

the results of the retest could have been used against appellant at trial. 

The district court's factual findings are supported by substantial evidence, 

and appellant fails to address those factual findings or present any 

'Appellant also asserts in a footnote that trial counsel should have 

"obtained reports that verified the chain of custody from California when 

[appellant's] DNA was taken and the reports from the lab that developed 

the DNA profile [and] submitted that profile to CODIS." He fails to 

support this claim with cogent argument or relevant legal authority, and 

thus we decline to consider it. Maresca v. State, 103 Nev. 669, 673, 748 

P.2d 3, 6 (1987). 

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argument on appeal demonstrating that the district court erred in denying 

this claim. 2 

Second, appellant argues that trial counsel was ineffective for 

failing to ensure that bench conferences were recorded. Appellant has 

failed to demonstrate that trial counsel's performance was deficient or that 

he was prejudiced. Trial counsel testified that the trial court always 

allowed him to make a record of any material issues discussed at 

unrecorded bench conferences. Appellant does not make any specific 

argument about any of the unrecorded bench conferences in this case but 

rather contends that the failure to record the bench conferences is 

prejudicial per se. Contrary to appellant's assertion, prejudice is not 

presumed when the district court fails to make a record of unrecorded 

conferences. Rather, appellant must demonstrate that "the record's 

missing portions are so significant that their absence precludes this court 

from conducting a meaningful review of the alleged errors that the 

appellant identified and the prejudicial effect of any error." Preciado v. 

State, 130 Nev. , 318 P.3d 176, 178 (2014). Because appellant has 

21n his reply brief, appellant argues that the district court erred by 

failing to find that trial counsel was ineffective for not hiring a second 

DNA expert to "vet" the first expert's opinion. His claim in his postconviction petition was that counsel failed to consult a DNA expert; •he 

never presented to the district court the issue of whether trial counsel 

should have consulted two experts. Thus, we decline to consider this claim 

on appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 

(1991), overruled on other grounds by Means v. State, 120 Nev. 1001, 1012- 

13, 103 P.3d 25, 33 (2004); see also Ford v. Warden, 111 Nev. . 872, 884, 901 

P.2d 123, 130 (1995) (stating that an appellant "cannot change [his] theory 

underlying an assignment of error on appeal"). 

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failed to make such a showing, we conclude that the district court did not 

err in denying this claim. 

Next, appellant challenges the district court's denial of his 

Brady3 claim as procedurally barred under NRS 34.810(1)(b)(2). Appellant 

argues that the district court erred in finding that he did not raise this 

claim on direct appeal. We disagree. On direct appeal, appellant's claim 

was that the district court abused its discretion in denying a motion for 

mistrial because the State failed to disclose an expert's notes that were 

used in her testimony in violation of Brady. See Henderson v. State, 

Docket No. 52573 (Order of Affirmance, February 3, 2010). In his postconviction petition, appellant claimed that the State violated Brady by 

failing to turn over information regarding the procedures used by the 

California lab in obtaining and placing appellant's DNA into the CODIS 

federal database. These are not the same claims. Moreover, appellant has 

failed to demonstrate good cause or prejudice for his failure to raise the 

Brady claim regarding the CODIS information on direct appeal. See NRS 

34.810(1)(b); NRS 34.810(3); State v. Huebler, 128 Nev. „ 275 P.3d 

91, 95 (2012). Thus, we conclude that the district court did not err in 

denying the Brady claim as procedurally barred. 

Next, appellant claims that the district court abused its •

discretion by denying his motion for additional funds to secure a forensic 

DNA expert during the post-conviction proceedings. Appellant failed to 

provide this court with a copy of his motion or the transcript of the hearing 

on the motion. Therefore, he has failed to demonstrate that the district 

3Brady v. Maryland, 373 U.S. 83 (1963). 

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court abused its discretion in denying the motion. See State v. Eighth 

Judicial Dist. Court, 100 Nev. 90, 102, 677 P.2d 1044, 1052 (1984) 

(presuming the propriety of district court actions in the absence of a 

showing of error); Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 

(1980) ("The burden to make a proper appellate record rests on 

appellant."). To the extent that appellant contends that the district court 

was required to grant his motion for funds once post-conviction counsel 

was appointed to represent him, appellant is mistaken. It is within the 

district court's discretion to authorize expenses related to investigative 

services. Kirksey v. State, 112 Nev. 980, 1003, 923 P.2d 1102, 1117 (1996). 

Appellant also contends that the district court erred during 

the evidentiary hearing by disclosing a prior witness's testimony to a 

testifying witness. Appellant argues that this amounted to a violation of 

the exclusionary rule for witnesses, which carries a presumption of 

prejudice. We disagree. During the evidentiary hearing, trial counsel 

Norm Reed testified that there was enough DNA evidence to retest but 

that he and trial counsel Violet Radosta decided not to have the DNA 

retested because their DNA expert advised against it and the results from 

retesting could have been used against appellant at trial Ms. Radosta 

was then called to testify and stated that they did not retest the DNA 

evidence because there was no sample left to retest. The district court 

questioned Ms. Radosta about this statement and told her that Mr. Reed 

had testified that there was DNA evidence available for retesting. The 

district court inquired further into the record, determined that there was 

in fact DNA evidence available for retesting, and allowed Ms. Radosta to 

opine that she did not retest it based on the expert's advice. We conclude 

that the district court's inquiry into a factual matter did not violate the 

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J. 

exclusionary rule. Given that the purpose of an evidentiary hearing is to 

resolve questions of fact, it was not inappropriate for the district court to 

inquire into discrepancies in Mr. Reed's and Ms. Radosta's testimony and 

clarify the record. Further, appellant failed to object below. 

For the foregoing reasons, we conclude that the district court 

did not err in denying the petition, and we 

ORDER the judgment of the district court AFFIRMED. 

J. 

Hardesty 

TD117A 

Douglas 

J. 

cc: Hon. Abbi Silver, District Judge 

Law Office of Julian Gregory, L.L.C. 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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