An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1292


Filed: 15 June 2004


         v.                        Johnston County
                                Nos. 01 CRS 58293
                                     02 CRS 5154

    Appeal by defendant from judgment entered 7 May 2003 by Judge Knox V. Jenkins, Jr. in the Superior Court in Johnston County. Heard in the Court of Appeals 7 June 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Teresa Leigh White, for the State.

    Winifred H. Dillon, for defendant-appellant.

    HUDSON, Judge.

    After a jury found defendant guilty of possession with intent to sell cocaine, defendant pled guilty to habitual felon status. The court sentenced defendant to prison for a minimum term of 101 months and a maximum term of 131 months.
    Defendant's sole contention on appeal is that the court committed plain error by “denying defendant's request for a more specific instruction on actual possession.” The record does not support this contention. The transcript shows that after retiring to deliberate, the jury returned to the courtroom and asked the court to define “possession.” After the court reviewed with the attorneys two pattern instructions, N.C.P.I. Crim. 104.41 andN.C.P.I. Crim. 260.15, defendant's attorney asked the court to give instruction N.C.P.I. Crim. 260.15 only. This instruction states that one has possession of an item when “he is aware of its presence and has, either by himself or together with others, both the power and intent to control disposition or use of that substance.” The court then gave the instruction as requested by defendant's counsel.
    Having received the relief he requested, defendant waived appellate review of the instruction. “A criminal defendant will not be heard to complain of a jury instruction given in response to his own request.” State v. McPhail, 329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991). “A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.” N.C. Gen. Stat. § 15A-1443(c) (2001). Appellate review, including for plain error, is not available in this situation. State v. Wilkinson, 344 N.C. 198, 213, 474 S.E.2d 375, 383 (1996), cert. denied, 353 N.C. 279, 546 S.E.2d 394 (2000).
    No error.
    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

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