Przybyla (David) v. State ( 2014 )

 abuse of discretion." Ouanbengboune v. State, 125 Nev. 763, 774, 220 P.3d
1122, 1129 (2009). The district court denied Przybyla's disfigurement
instructions because it concluded that the instructions were a directed
verdict on an element of the crime and that it was within the province of
the jury to determine if there was substantial bodily harm. The district
court denied the instruction regarding prolonged physical pain because
the term needed no further definition. We conclude that the district court
did not abuse its discretion by rejecting Przybyla's proposed instructions.
See NRS 0.060; Collins v. State, 125 Nev. 60, 62, 203 P.3d 90, 91 (2009)
("[T]he phrase 'prolonged physical pain' has a well-settled and ordinarily
understood meaning."); Dawes v. State, 110 Nev. 1141, 1146, 881 P.2d 670,
673 (1994) ("Words used in an instruction in their ordinary sense and
which are commonly understood require no further defining
instructions."); Levi v. State, 95 Nev. 746, 748, 602 P.2d 189, 190 (1979)
(holding that it is within the jury's province to determine the seriousness
or duration of injury).
Second, Przybyla contends that the district court erred by
denying his special verdict form that separated substantial bodily harm
into the four theories alleged by the State in the charging document.
Przybyla argues that a verdict form indicating the basis of conviction was
necessary to assure juror unanimity "Although there is no per se
prohibition, ``fals a rule, special verdicts in criminal trials are not favored."
United States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998) (alteration in
original) (quoting United States v. O'Looney, 544 F.2d 385, 392 (9th Cir.
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1976)). Whether a special verdict should be used depends on 'the
particular circumstances of [each] case," and the district court's decision is
reviewed for an abuse of discretion. Id. (alteration in original) (quoting
O'Looney, 544 F.2d at 392). The district court denied the special verdict
form because it determined that there was no need for jury unanimity on
the theory of substantial bodily harm. We conclude that the district court
did not abuse its discretion by refusing the special verdict form. See
Richardson v. United States, 526 U.S. 813, 817 (1999) (concluding that
unanimity in the theory supporting an element of a crime is not necessary,
as long as all jurors find that the element was proved beyond a reasonable
doubt); Anderson v. State, 121 Nev. 511, 515, 118 P.3d 184, 186 (2005)
(holding that the jury does not need to be unanimous on a particular
theory of culpability to sustain a conviction for a single offense).
Third, Przybyla contends that the district court erred by
denying his pretrial motion to dismiss based on an alleged statutory
speedy trial violation. Appellant invoked his speedy trial right at his
arraignment on April 22, 2013. Trial was scheduled as an alternative
setting for June 18, 2013, but was subsequently rescheduled to August 13,
2013, when the primary setting went to trial. Przybyla filed a motion to
dismiss, and the district court conducted a hearing. The district court
denied the motion, concluding that there was good cause for the delay and
that, considering the factors in Barker v. Wingo, 407 U.S. 514, 530 (1972),
the delay did not prejudice Przybyla.
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A district court may dismiss a charging document if the
defendant is not brought to trial within 60 days after arraignment. NRS
178.556(1). "A dismissal is mandatory only if the State cannot show good
cause for the delay." Meegan v. State, 114 Nev. 1150, 1154, 968 P.2d 292,
294 (1998), abrogated on other grounds by Vanisi v. State, 117 Nev. 330,
22 P.3d 1164 (2001). We conclude that the district court did not err by
determining that there was good cause for the delay. See Shelton v. Lamb,
85 Nev. 618, 619, 460 P.2d 156, 157 (1969) (recognizing "the well-settled
law of this state that the condition of the calendar, the pendency of other
cases, the public expense, the health of the judge, and even the
convenience of the court are good causes for a continuance").
Fourth, Przybyla contends that there was insufficient evidence
to support a finding of substantial bodily harm. He argues that the victim,
a lay person, was the only one to testify about substantial bodily harm and
asks this court to adopt a rule that would require expert medical
testimony whenever substantial bodily harm cannot be discerned by
simply viewing the victim. Our review of the record reveals sufficient
evidence to establish substantial bodily harm beyond a reasonable doubt
as determined by a rational trier of fact. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d
1378, 1380 (1998). The victim testified that as a result of Przybyla biting
and hitting her, she suffered from pain and double vision in her eye, even
after corrective surgery, she was scarred and in pain for weeks, and she
continued to experience headaches. A rational juror could find beyond a
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reasonable doubt that the victim suffered bodily injury that caused either
"protracted . . . impairment of the function of any bodily member or organ"
or "[p]rolonged physical pain" or both. NRS 0.060. It is for the jury to
determine the weight and credibility to give conflicting testimony, and the
jury's verdict will not be disturbed on appeal where, as here, substantial
evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624
P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
573 (1992). Furthermore, there is no statutory provision that medical or
expert testimony is required to prove substantial bodily harm, and we
decline to create such a requirement.
Having determined that Przybyla is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED. 2
„,
Piekg J.
Pickering
Gt Aili (CC— , J.
'rre
Parr1 J.
Saitta
2 Thefast track statement submitted by Przybyla does not comply
with the Nevada Rules of Appellate Procedure because it does not include
page numbers. See NRAP 32(a)(4). We caution counsel that future failure
to comply with the rules of this court when filing briefs may result in the
imposition of sanctions. See NRAP 3C(n).
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cc: Hon. Alvin R. Kacin, District Judge
Elko County Public Defender
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
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