McCurdy (Marc) v. State

 horizontal gaze nystagmus test, and had a blood alcohol content of 0.264.
We conclude that a rational trier of fact could reasonably infer from this
evidence that McCurdy was in actual physical control of the car while
under the influence of alcohol. See NRS 484A.185 (defining "premises to
which the public has access"); NRS 484C.110(1)(c); Rogers v. State, 105
Nev. 230, 233-34, 773 P.2d 1226, 1228 (1989) (identifying factors to be
weighed when deciding whether someone has actual physical control of a
vehicle). It is for the trier of fact to determine the weight and credibility to
give conflicting testimony, and its verdict will not be disturbed on appeal
where, as here, substantial evidence supports the verdict. See McNair v.
State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992); see also Barnier v. State,
119 Nev. 129, 134, 67 P.3d 320, 323 (2003) (leaving the balancing of
Rogers factors to the discretion of triers of fact).
Second, McCurdy contends that the district court violated his
rights to due process and a fair trial by permitting the State to tailor its
rebuttal argument to the district court's questions. McCurdy did not
object to the district court's questions, so we review for plain error. See
Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (reviewing
unpreserved claims for plain error); Green v. State, 119 Nev. 542, 545, 80
P.3d 93, 95 (2003) (placing the burden on the defendant "to show actual
prejudice or a miscarriage of justice"); see also NRS 178.602. The record
reveals that the district court asked questions during both McCurdy's
closing argument and the State's rebuttal argument. We conclude from
SUPREME COURT
OF
NEVADA
(0) 1947A
2
this record that McCurdy has failed to demonstrate actual prejudice or a
miscarriage of justice.
Third, McCurdy contends that the district court erred by
admitting evidence that his wife previously told him that he could never
again drive her car. "We review a district court's decision to admit or
exclude evidence for an abuse of discretion." Mclellan v. State, 124 Nev.
263, 267, 182 P.3d 106, 109 (2008). The record reveals that McCurdy did
not object to his wife's testimony but rather to the State's use of a
document to refresh her memory. The district court overruled McCurdy's
objection, the document refreshed the witness's recollection, and the
document was not admitted into evidence. We conclude that the district
court did not plainly err by admitting the testimony, see Valdez, 124 Nev.
at 1190, 196 P.3d at 477, or abuse its discretion by allowing the State to
refresh the witness's memory, see generally NRS 50.125; Libby v. State,
115 Nev. 45, 53, 975 P.2d 833, 838 (1999) (discussing use of writings to
refresh memory).
Fourth, McCurdy contends that the justice court erred by
continuing the preliminary hearing because the State failed to show good
cause for the delay. We review a justice court's decision to grant a
continuance for abuse of discretion. State v. Nelson, 118 Nev. 399, 403, 46
P.3d 1232, 1235 (2002). The record reveals that the State requested a
continuance on August 26, 2010, and presented sworn testimony that (1)
Officer Embry had been subpoenaed, (2) he was an essential witness
SUPREME COURT
OF
NEVADA
(0) 1947A
3
because he conducted the field sobriety test and observed McCurdy behind
the wheel of the car, and (3) he responded to the subpoena with a
declaration that he was on vacation and unavailable until after August 31,
2010. The justice court considered McCurdy's objection to the continuance
but determined that good cause had been shown and granted the
continuance. We conclude from this record that the justice court did not
abuse its discretion. See id. at 404, 46 P.3d at 1235 (discussing the
application of the Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969), and
Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971), rules and good
cause).
Having concluded that McCurdy is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
/ ,J.
cc: Hon. Kenneth C. Cory, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A