Chaparro (Osbaldo) v. State ( 2015 )

 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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