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 

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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 

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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 

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