Jefferson (Gregory) v. State ( 2015 )

 review the court's application of the law to those facts de novo. Lader v.
Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
Jefferson argues that counsel was ineffective for failing to
request a jury instruction on the theory that reasonable mistake of age is a
defense to statutory sexual seduction (NRS 200.364(6))." Jefferson has
failed to demonstrate deficiency or prejudice. As Jefferson conceded
below, this court has held that a reasonable mistake as to the victim's age
is not a defense to statutory sexual seduction. See Jenkins v. State, 110
Nev. 865, 870-71, 877 P.2d 1063, 1067 (1994). Further, while the defense
is entitled to a jury instruction on its theory of defense, that theory must
be supported by some evidence and it must be an accurate statement of
law. McCraney v. State, 110 Nev. 250, 255, 871 P.2d 922, 925 (1994);
Vallery v. State, 118 Nev. 357, 372, 46 P.3d 66, 77 (2002). Here, it was not
the theory of defense (that the State failed to meet its burden of proof),
Jefferson identifies no evidence that would support such a theory, and it is
not an accurate statement of law. It would therefore have been a futile
request, and counsel was not objectively unreasonable in not making it.
See Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006).
Moreover, Jefferson has failed to demonstrate a reasonable probability of a
different outcome at trial where he was also convicted of the alternate,
'Jefferson's fast track statement refers to a charge of "Statutory
Sexual Assault on a Minor." No such crime exists. Jefferson raised this
claim below in the context of his convictions for statutory sexual seduction.
We decline to address his claims to the extent that he is attempting to
expand them on appeal to reach his convictions for sexual assault of a
child under 16 years old. See Davis v. State, 107 Nev. 600, 606, 817 P.2d
1169, 1173 (1991), overruled on other grounds by Means, 120 Nev. at 1012-
13, 103 P.3d at 33.
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greater offenses of sexual assault of a child under 16 years. Accordingly,
we conclude that the district court did not err in denying this claim, and
we
ORDER the judgment of the district court AFFIRMED.
, C.J.
Hardesty
J.
—Cinkaltatrr
Parraguirre
Douglas
cc: Hon. Stefany Miley, District Judge
Terrence M. Jackson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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