                that are not belied by the record and, if true, would entitle him to relief.
                See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).
                Ineffective assistance of trial counsel
                               First, Chaparro contends that the district court erred in
                denying his claim that trial counsel was ineffective for failing to request
                an instruction on the lesser-included offense of open and gross lewdness.
                We disagree. Open or gross lewdness is not a lesser-included offense of
                battery with intent to commit sexual assault because the elements of open
                or gross lewdness are not entirely included within the elements of battery
                with intent to commit sexual assault.         See Wilson v. State, 121 Nev. 345,
                359, 114 P.3d 285, 294-95 (2005) ("The test ultimately resolves itself on
                whether the provisions of each of the different statutes require the proof of
                a fact that the other does not."). Open and gross lewdness involves the
                intent to commit a sexual act that could be observed by another and would
                be offensive to observers. NRS 201.210; Berry v, State, 125 Nev. 265, 280-
                82, 212 P.3d 1085, 1095-97 (2009), abrobated on other grounds by State v.
                Casteneda, 126 Nev. 478, 245 P.3d 550 (2010). Battery with intent to
                commit sexual assault prohibits the willful use of force or violence upon
                the person of another with the intent to commit nonconsensual sexual
                penetration.     See NRS 200.400(1)(a); NRS 200.366(1). While it penalizes
                violent contact aimed at sexual assault, the offense does not require a
                sexual act or that such an act be observed by another. Therefore,
                Chaparro could not demonstrate that counsel's performance was deficient
                for failing to request the instruction and the district court did not err in
                denying this claim without conducting an evidentiary hearing.
                               Second, Chaparro contends that counsel was ineffective for
                failing to present testimony from several witnesses who could have

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                confirmed, consistent with his statement to police, where Chaparro walked
                after the alleged battery. We disagree. The victim testified that Chaparro
                attacked her as she was leaving the Nugget Casino human resources
                office. Her testimony was corroborated by her injuries and records that
                showed Chaparro was at the Nugget as well. Chaparro also admitted to
                police that he was with the victim in the parking lot, shoved her, and got
                on top of her. Considering this evidence, Chaparro could not demonstrate
                a reasonable probability that the outcome of trial would have been
                different had counsel sought to introduce testimony that would have
                corroborated Chaparro's statement in such a minor detail. Therefore, the
                district court did not err in denying this claim without conducting an
                evidentiary hearing.
                            Third, Chaparro contends that trial counsel was ineffective for
                failing to object to repeated instances of prosecutorial misconduct. We
                disagree. Although counsel failed to object to the comments at trial,
                Chaparro's appellate counsel challenged the comments on appeal.            See
                Chaparro v. State, Docket No. 59907 (Order of Affirmance, November 15,
                2012). While we evaluated the merits of the claims under the plain error
                standard of review, we concluded that, as the jury was properly instructed
                on the definition of reasonable doubt, any error was harmless. See id. As
                the State's comments did not result in any prejudice, see Riley v. State, 110
                Nev. 638, 646, 878 P.2d 272, 278 (1994) (noting petitioner bears the
                burden of establishing prejudice as a result of counsel's failure to object or
                argue issues of prosecutorial misconduct on appeal), Chaparro failed to
                demonstrate that the district court erred in denying this claim without
                conducting an evidentiary hearing



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                 Ineffective assistance of appellate counsel
                             First, Chaparro argues that the district court erred in denying
                 his claim that appellate counsel was ineffective for failing to challenge the
                 jury instructions defining "willful." We disagree. While the district court
                 refused to give Chaparro's proposed instructions, the given instructions
                 adequately covered the subject matter of the proposed instructions.       See

                 Earl u. State, 111 Nev. 1304, 1308, 904 P.2d 1029, 1031 (1995) (providing
                 that district court may refuse instructions where proffered instructions
                 are substantially covered by given instructions). Therefore, the district
                 court did not err in denying this claim without conducting an evidentiary
                 hearing.
                              Second, Chaparro argues that appellate counsel was
                 ineffective for failing to argue that the district court plainly erred in
                 failing to instruct on open and gross lewdness. As open or gross lewdness
                 is not a lesser included offense of battery with intent to commit sexual
                 assault, Chaparro failed to demonstrate that appellate counsel's
                 performance was deficient for not raising this argument on appeal.        See

                 Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006) (stating that
                 counsel cannot be deemed ineffective for failing to make a futile objection).
                 Therefore, the district court did not err in denying this claim without
                 conducting an evidentiary hearing.
                              Third, Chaparro contends that appellate counsel was
                 ineffective for failing to challenge his sentence as a violation of the
                 prohibition against cruel and Unusual punishment. We conclude that
                 Chaparro failed to demonstrate that his counsel was deficient or that he
                 was prejudiced. "A sentence within the statutory limits is not 'cruel and
                 unusual punishment" where the statute itself is constitutional, and the

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                sentence is not so unreasonably disproportionate to the crime as to shock
                the conscience.    Blume v. State,   112 Nev. 472, 475, 915 P.2d 282, 284

                (1996) (quoting Culverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221-22
                (1979)). NRS 200.400 provides for a sentence of life with the possibility of
                parole after two years for battery with intent to commit sexual assault
                where substantial bodily harm does not result. NRS 200.400(4)(b). The
                evidence in the record showed that Chaparro grabbed the victim by the
                back of the head and shoved her into her car. He then pinned her down,
                thrust his hand down her shirt, and groped her breast. Chaparro's
                statements to the victim during the battery revealed his intent to sexually
                assault her. Considering this evidence, Chaparro failed to demonstrate
                that his counsel could have successfully argued that his sentence was
                unreasonably disproportionate to the crime. Therefore, the district court
                did not err in denying this claim without conducting an evidentiary
                hearing.
                            Having considered Chaparro's contentions and concluding that
                no relief is warranted,' we
                            ORDER the judgment of the district court AFFIRMED.



                                                                    J.




                Gibbons

                      1 Chaparro  also contends that the cumulative effect of counsel's
                errors entitles him to relief. We conclude that no relief is warranted on
                this claim.


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                 cc:   Hon. Patrick Flanagan, District Judge
                       Karla K. Butko
                       Attorney General/Carson City
                       Washoe County District Attorney
                       Washoe District Court Clerk




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