Merritt (William) v. State ( 2013 )

 semen recovered from the victim did not contain sperm and that evidence
would have shown that the semen came from the victim's ex-husband, not
appellant. Appellant fails to demonstrate that he was prejudiced. Both
the victim and her ex-husband testified at trial that they had not had sex
with each other since they separated approximately 10 years prior to this
incident. In addition, expert testimony explained that there were many
reasons why sperm would not be discovered in the semen found on the
victim and that the sterility of the male was only one possibility.
Accordingly, appellant fails to demonstrate a reasonable probability of a
different outcome at trial had counsel presented evidence to show the
victim had sex with her ex-husband rather than was sexually assaulted by
appellant. Therefore, the district court did not err in denying this claim.
Next, appellant argues that his appellate counsel was
ineffective. To prove ineffective assistance of appellate counsel, a
petitioner must demonstrate that counsel's performance was deficient in
that it fell below an objective standard of reasonableness, and resulting
prejudice such that the omitted issue would have a reasonable probability
of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102,
1114 (1996). Both components of the inquiry must be shown. Strickland,
466 U.S. at 697. Appellate counsel is not required to raise every non-
frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983).
Rather, appellate counsel will be most effective when every conceivable
issue is not raised on appeal. Ford v. State, 105 Nev. 850, 853, 784 P.2d
951, 953 (1989).
First, appellant argues that his appellate counsel was
ineffective for failing to argue there was insufficient evidence for the
sexual assault conviction. Appellant fails to demonstrate that his
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appellate counsel was deficient or that he was prejudiced. The victim
testified that appellant penetrated her, but was unable to maintain an
erection. This was sufficient testimony to demonstrate that appellant
committed sexual assault as penetration need only be slight. See NRS
200.364(4); NRS 200.366(1). Appellant fails to demonstrate a reasonable
likelihood of success on appeal had counsel argued there was insufficient
evidence of sexual assault presented at trial. Therefore, the district court
did not err in denying this claim.
Second, appellant argues that his appellate counsel was
ineffective for failing to include a transcript of the sentencing hearing with
the record before this court in support of his claim that he should not have
been adjudicated as a habitual criminal. Appellant fails to demonstrate
he was prejudiced. It is appellant's burden to provide this court with an
adequate record for review and appellant again fails to include a
transcript of the sentencing hearing for this court's review. See Thomas v.
State, 120 Nev. 37, 43 n.4, 83 P.3d 818, 822 n.4 (2004) ("Appellant has the
ultimate responsibility to provide this court with 'portions of the record
essential to determination of issues raised in appellant's appeal.'"); Greene
v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make
a proper appellate record rests on appellant."). As noted on direct appeal,
the State's notice to seek habitual criminal treatment alleges sufficient
felony convictions for habitual criminal treatment. Based on the record
before this court, appellant does not demonstrate a reasonable likelihood
of a different outcome on appeal had counsel included the sentencing
transcript. Therefore, the district court did not err in denying this claim.
Next, appellant argues that the district court erred in denying
the claims raised in appellant's proper person petition without conducting
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an evidentiary hearing. Appellant lists the claims raised in the proper
person petition, but fails to provide any cogent argument as to how or why
the district court erred in denying these claims without conducting an
evidentiary hearing. "It is appellant's responsibility to present relevant
authority and cogent argument; issues not so presented need not be
addressed by this court." Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3,
6 (1987). Thus, we need not address these claims.
Having concluded appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED.
J.
Douglas
cc: Hon. Doug Smith, District Judge
Matthew D. Carling
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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