                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 cross-
                examined 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 post-
                conviction 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 41,      'J
                                                       Parraguirre



                                                       Cherry


                cc:   Hon. Elliott Sattler, II, District Judge
                      Mary Lou Wilson
                      Attorney General/Carson City
                      Washoe County District Attorney
                      Washoe District Court Clerk


                      2 Appellant 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.



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