THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

LANSING, Judge.

Preston Galbraith appeals from the district court's order denying his petition for post-conviction relief. We affirm.

I.

BACKGROUND

In his underlying criminal case, Galbraith was charged with sexual abuse of a child under sixteen for soliciting a minor to pose for lewd photos and/or have sexual contact with Galbraith or herself. Galbraith pled guilty, specifically admitting to soliciting the minor to pose for nude photos. His plea was pursuant to a plea agreement in which the State agreed to recommend a suspended unified ten-year sentence with one year fixed. The district court did sentence Galbraith to the recommended ten years with one year fixed, but did not suspend it. Galbraith filed an Idaho Criminal Rule 35 motion, which the court denied. Galbraith did not directly appeal his judgment of conviction or the denial of his I.C.R. 35 motion.

Galbraith filed a petition for post-conviction relief and was appointed counsel. Galbraith ultimately alleged that he was entitled to post-conviction relief from his guilty plea because his trial counsel had been ineffective for failing to advise Galbraith of this Court's opinion in Mintun v. State, 144 Idaho 656, 168 P.3d 40 (Ct. App. 2007). Galbraith asserted that according to the holding in Mintun, his conduct did not qualify as sexual abuse of a child. Thus, Galbraith argued, had he been advised of Mintun and the elements of the offense, he never would have pled guilty and would have proceeded to trial. After an evidentiary hearing, the district court denied post-conviction relief.

II.

ANALYSIS

Galbraith maintained at his post-conviction evidentiary hearing that he never asked the minor to engage in sexual contact with Galbraith or herself, but only asked her to take nude photos of herself. He stated that pursuant to Mintun, merely asking the minor to take nude photos of herself was not sexual abuse of a child, and had he known that at the time, he would not have pleaded guilty because he did not engage in the conduct for which he was alternatively charged.

Galbraith testified at his post-conviction hearing that he did admit to police that after the minor sent him a picture of a rose through text message he said something "similar to `Nice flower,' `Nice rose' or `Nice flower,' and `I would prefer or I would rather see a virgin flower with its pedals [sic] spread.'" Galbraith testified that he admitted during questioning by the investigating detective that a person could construe that request as a wish for sexual contact. Though Galbraith denied at the post-conviction hearing that he specifically asked the minor to engage in sexual touching of herself or of him, it appears that the State had evidence to the contrary. Galbraith had texted the minor that she could be "ungrounded" if she would give him a "hand job" and had suggested to her that one of three ways she could get out of trouble was to send him photos of her "virgin flower with its pedals [sic] spread." Galbraith told the investigating detective that the minor was supposed to understand his phrase about the virgin flower as referring to her spreading her vaginal area open for him to see. Moreover, multiple references were made at the hearing to portions of the presentence investigation report and interviews of Galbraith that indicated Galbraith asked the minor to touch herself and to touch him sexually. The district court took judicial notice of the presentence investigation report, but that report was not made a part of the appellate record in this case. It is the appellant's responsibility to provide a sufficient record to substantiate his or her claims on appeal; in the absence of an adequate record we will not presume error, and missing portions of the record are presumed to support the actions of the district court. State v. Repici, 122 Idaho 538, 541, 835 P.2d 1349, 1352 (Ct. App. 1992); State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991); State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985).

Galbraith's defense attorney in his underlying criminal case also testified at the post-conviction evidentiary hearing. He testified that Galbraith had made admissions to the police that would reflect disfavorably on his client in front of a jury, including—to the best of counsel's recollection—an admission that Galbraith asked the minor to take pictures of her touching herself. In light of these admissions and other State evidence that Galbraith's attorney had available to him while counseling Galbraith, counsel felt Galbraith was likely to be convicted. He therefore advised Galbraith to take the State's plea offer because the attorney was concerned that the sentence Galbraith would have received would have been much worse after being convicted absent an agreement for a certain sentence, considering the facts of the case and Galbraith's prior record. In working on the case, defense counsel read the statute Galbraith was charged with violating and researched the case law interpreting the statute. He did this early in the case and did not refresh his research of the case law prior to Galbraith's plea hearing or sentencing. Although counsel did not become aware of the Mintun decision before Galbraith was sentenced, he testified at the post-conviction hearing that he had read a summary of the case before the hearing and felt that the case was factually distinguishable from Galbraith's. Following the evidentiary hearing, the district court denied Galbraith's petition. Galbraith appeals, arguing that the district court applied an erroneous legal standard in denying his petition and that under the correct legal standard Galbraith established that he received ineffective assistance of counsel.

II.

ANALYSIS

Galbraith first argues that the court applied an incorrect legal standard for prejudice when it analyzed whether, but for counsel's alleged deficiency, the result of Galbraith's trial would have been different, rather than determining whether Galbraith would have declined to plead guilty. Galbraith next argues that he proved his counsel was ineffective by not conducting adequate research and discovering the Mintun decision. He asserts that he was prejudiced by this ineffectiveness because he would not have pleaded guilty, and would have taken the case to trial, had counsel advised Galbraith of the Mintun holding.

In order to prevail in a post-conviction proceeding, the applicant must prove the allegations upon which the request for post-conviction relief is based by a preponderance of the evidence. I.C. § 19-4907; Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); McKinney v. State, 133 Idaho 695, 699-700, 992 P.2d 144, 148-49 (1999). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Boman v. State, 129 Idaho 520, 525, 927 P.2d 910, 915 (Ct. App. 1996); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Queen v. State, 146 Idaho 502, 504, 198 P.3d 731, 733 (Ct. App. 2008); Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the district court's application of the relevant law to the facts. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Queen, 146 Idaho at 504, 198 P.3d at 733.

To prevail on an ineffective assistance of counsel claim, in a post-conviction action, the defendant must show that the attorney's performance was deficient, and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the applicant has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Suits v. State, 143 Idaho 160, 162, 139 P.3d 762, 764 (Ct. App. 2006). Where, as here, the defendant was convicted upon a guilty plea, to satisfy the prejudice element, the claimant must show that there is a reasonable probability that, but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006). The Supreme Court in Hill noted that this inquiry often turns upon the likelihood that discovery of a defense or exculpatory evidence that was overlooked by counsel would have led counsel to change his or her recommendation as to the plea. This assessment, in turn, will largely depend upon whether the missed evidence or defense likely would have changed counsel's prediction as to the outcome of a trial. Id. Thus, to obtain relief, Galbraith must show that a decision to not accept a plea agreement and plead guilty would have been rational under the circumstances. Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1485 (2010).

We need not address Galbraith's contention that the district court applied an incorrect legal standard in assessing prejudice because, as explained in more detail below, we conclude that Galbraith failed to show he is entitled to post-conviction relief. It is well established that where a lower court reached a correct conclusion, though based upon an incorrect reason, this Court may affirm upon the proper legal theory. See State v. Shanks, 139 Idaho 152, 154-55, 75 P.3d 206, 209 (Ct. App. 2003); Hagy v. State, 137 Idaho 618, 623, 51 P.3d 432, 437 (Ct. App. 2002).

Galbraith was charged with sexual abuse of a child by soliciting a minor to participate in a sexual act with the intent to gratify the lust, passions, or sexual desire of the actor, minor, or third party. See I.C. § 18-1506(1)(a). As used in this statute, "solicit" means:

I.C. § 18-1506(2). Based on the plain language of the statute, "a solicitation conviction for violation of section 18-1506(1)(a) requires proof that the defendant communicated a desire for the minor child to participate in a sexual act or foreplay involving physical contact between the minor child and another person or the minor's self-contact." Mintun, 144 Idaho at 664, 168 P.3d at 48.

Contrary to Galbraith's argument, he has not proved prejudice because knowledge of this Court's opinion in Mintun would not have given him a rational reason to refuse to plead guilty. As stated in Hill, where the alleged error of counsel is a failure to advise of a defense, the prejudice inquiry will largely depend on whether the defense would have succeeded at trial. Hill, 474 U.S. at 59. The Mintun case is factually distinguishable from Galbraith's case such that it would not have provided a defense that Galbraith could have rationally expected to succeed at trial. In Mintun, this Court held that the defendant's conviction under I.C. § 18-1506(1)(a) must be vacated because the State's evidence showed only that Mintun had asked a child to take photographs while Mintun engaged in a sexual act. There was no evidence that Mintun conveyed any desire that the child touch himself or touch Mintun. In this case, by contrast, the State possessed evidence that Galbraith asked the minor to touch Galbraith by giving him a "hand job," and Galbraith had admitted that he asked the minor to touch herself by spreading her vaginal area open while she took pictures for Galbraith. Consequently, the Mintun decision would not have provided a successful defense and, as defense counsel testified, would have provided no reason to change counsel's recommendation that Galbraith plead guilty in view of the evidence possessed by the State. Galbraith's contention that he received faulty advice from counsel because counsel was unaware of Mintun is not supported by the facts of his case. Therefore, he has not shown prejudice arising from his defense attorney's failure to learn of the Mintun decision before advising Galbraith to plead guilty.

As Galbraith has failed to show that he was prejudiced by the alleged deficiency of his attorney, the district court did not err in denying relief on Galbraith's post-conviction petition. The order of dismissal is affirmed.

Judge GUTIERREZ and Judge MELANSON CONCUR.