deadly weapon causing substantial bodily harm. See NRS

200.481(2)(g)(2). While he contends that other evidence contradicted this testimony, it was for the jury to determine the weight and credibility to give the conflicting testimony. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).

Second, Newcastle argues that the district court erred in denying his motion to dismiss based on a violation of Brady v. Maryland, 373 U.S. 83 (1963). He asserts that the State failed to disclose video evidence that indicated that Officer Green handled the purported weapon, a large mixing paddle, without gloves and had checked the weapon out to other inmates that day. The video also showed the door to the crime scene could be opened without breaking the evidence tape. We conclude that this claim lacks merit. w[T]here are three components to a Brady violation: the evidence at issue is favorable to the accused; the evidence was withheld by the state, either intentionally or inadvertently; and prejudice ensued, i.e., the evidence was material." Browning v. State, 120 Nev. 347, 369, 91 P.3d 39, 54 (2004) (quoting Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000)). Evidence explaining the presence of another's DNA on the purported weapon and showing that the crime scene was not secure was favorable to Newcastle. However, the State did not withhold the evidence, but produced it during trial. The district court permitted Newcastle to recall Officer Green for examination about the statement he made in the video. Moreover, Newcastle failed to demonstrate the late disclosed evidence was material. In light of the evidence that he was found standing above the victim holding a large mixing paddle, admitted that he "did it," and the victim's blood was found

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resulting from the late disclosure.

Third, Newcastle argues that the district court erred in denying his motion for a new trial based on juror misconduct. He contends that two jurors expressed the sentiment that Newcastle "was in prison for a reason," which seemed to indicate they were disregarding the instruction regarding Newcastle's presumption of innocence. In order to "prevail on a motion for a new trial based on juror misconduct, the defendant must present admissible evidence sufficient to establish: (1) the occurrence of juror misconduct, and (2) a showing that the misconduct was prejudicial." Meyer v. State, 119 Nev. 554, 563-64, 80 P.3d 447, 455 (2003). "A jury's failure to follow a district court's instruction is intrinsic juror misconduct." See Valdez v. State, 124 Nev. 1172, 1186, 196 P.3d 465, 475 (2008). "[O]ily in extreme circumstances will intrinsic misconduct justify a new trial." Id. at 565, 80 P.3d at 456. We conclude that the district court did not abuse its discretion in concluding that this situation did not arise to such a level. See Servin v. State, 117 Nev. 775, 792, 32 P.3d 1277, 1289 (2001) (reviewing district court decision on timely motion for new trial for abuse of discretion). The comments may have indicated that the jurors had disregarded the instructions by considering improper, unadmitted character evidence. However, considering the aforementioned evidence of Newcastle's guilt and that the expressed sentiment of the jurors would be the same regarding any of the other possible perpetrators, Newcastle failed to demonstrate a "reasonable probability or likelihood that the juror misconduct affected the verdict." Meyer, 119 Nev. at 564, 80 P.3d at 455.

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### J. Having considered Newcastle's contentions and concluded that they lack merit, we

ORDER the judgment of conviction AFFIRMED.



# -10-A AA Hardesty



### ------Ae

C rA' Douglas J.

J.

cc: Hon. Steve L. Dobrescu, District Judge State Public Defender/Ely State Public Defender/Carson City Attorney General/Carson City Attorney General/Ely White Pine County Clerk

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