Jefferson (Gregory) v. State

• Court: Nevada Supreme Court
• Decided: November 13, 2015
• Docket: 67193
• Status: Unpublished

Opinion

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.

SUPREME COURT OF NEVADA 2 (0) 1947A e 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

SUPREME COURT OF NEVADA 3 (0) 1947A cep