                 application of the law to those facts de novo.      Lader v. Warden, 121 Nev.
                 682, 686, 120 P.3d 1164, 1166 (2005).
                             First, appellant claims that trial counsel was ineffective for
                 failing to retain and present an expert to refute the findings of the nurse
                 who examined the victim after the sexual assault. Appellant claims that
                 had trial counsel retained an expert, that expert would have testified that
                 there were no injuries to the victim in this case. Appellant failed to
                 demonstrate he was prejudiced. The district court concluded that the
                 expert's testimony would not have resulted in a reasonable probability of a
                 different outcome at trial. Substantial evidence supports the decision of
                 the district court. The expert conceded that the absence of injury in sexual
                 assault cases is just as likely as the presence of physical injury. Further,
                 appellant admitted to having forceful sex with the victim. Lokken v. State,
                 Docket No. 49147 (Order of Affirmance, June 4, 2008). Therefore, the
                 district court did not err in denying this claim.
                             To the extent that appellant claims that the district court
                 erred by not taking into consideration a case in front of a different district
                 court that found trial counsel in the other case ineffective for failing to
                 retain an expert, appellant fails to demonstrate he is entitled to relief.
                 The facts and circumstances of the two cases were vastly different and, as
                 stated above, appellant failed to demonstrate that calling the expert at
                 trial would have resulted in a reasonable probability of a different
                 outcome. Therefore, the district court did not err by not taking the other
                 case into consideration in its decision.
                             Second, appellant claims that trial counsel was ineffective for
                 failing to encourage appellant to testify. The State argues that this claim
                 differs from his claim raised below in his supplemental petition. In his

SUPREME COURT
        OF
     NEVADA
                                                         2
(0) 1947A    9
                supplemental petition, appellant claimed that trial counsel was ineffective
                for advising him not to testify and that he waived his right to testify
                "under duress." While the claim on appeal is worded differently, it is
                essentially the same claim, and therefore, we elect to consider the claim,
                c.f Walch v. State, 112 Nev. 25, 30, 909 P.2d 1184, 1187 (1996) (stating
                that generally this court need not address issues raised for the first time
                on appeal), and we conclude that appellant failed to demonstrate that
                counsel was deficient.
                            At the evidentiary hearing, trial counsel testified that he did
                not advise appellant either way. He merely presented the pros and cons of
                testifying and left appellant to make the decision. Appellant testified that
                trial counsel discussed the pros and cons but also claimed that trial
                counsel told him he would not be able to appeal if he testified because he
                would be admitting to conduct constituting the crimes charged. Trial
                counsel stated he never told appellant he could not appeal if he testified.
                After the evidentiary hearing, the district court determined that appellant
                failed to demonstrate that trial counsel told him not to testify, appellant
                understood it was his choice whether to testify, and appellant chose not to.
                Substantial evidence supports the decision of the district court, and
                therefore, the district court did not err in denying this claim.
                            Third, appellant claims that trial counsel was ineffective for
                failing to thoroughly investigate witnesses who were called at trial and
                other witnesses who were not called at trial. Appellant failed to
                demonstrate that he was prejudiced. After the evidentiary hearing, the
                district court concluded that the additional information that appellant
                wanted trial counsel to present through the witnesses was information
                that was already presented at trial through other witnesses and that the

SUPREME COURT
        OF
     NEVADA
                                                       3
(0) 1947A
                information was merely cumulative. Further the district court concluded
                that these witnesses may have weakened appellant's case because the
                witnesses contradicted each other regarding how long the victim and
                appellant were together, the type of sexual activity engaged in, who was
                present outside the home of the appellant after the crime occurred, when
                the crime occurred, and whether the door of appellant's bedroom was open
                or closed. Substantial evidence supports the decision of the district court,
                and therefore, the district court did not err in denying this claim.
                Accordingly, we
                            ORDER the judgment of the district court AFFIRMED.




                                                   Hardesty



                                                   Parraguirre




                cc: Hon. Connie J. Steinheimer, District Judge
                     Mary Lou Wilson
                     Attorney General/Carson City
                     Washoe County District Attorney
                     Washoe District Court Clerk




SUPREME COURT
        OF
     NEVADA


(0) 1947A
