An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-366


Filed: 15 November 2005


         v.                        Watauga County
                                No. 02 CRS 3079
FRED NORRIS MARTIN, JR.                    

    Appeal by defendant from judgment entered 14 July 2004 by Judge C. Philip Ginn in Watauga County Superior Court. Heard in the Court of Appeals 31 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Sueanna P. Sumpter, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.

    CALABRIA, Judge.

     On 23 September 2002, Fred Norris Martin, Jr. (“defendant”), was convicted of possession with intent to sell and deliver cocaine and sale and delivery of cocaine in violation of N.C. Gen. Stat. § 90-95(a)(1) (2003). The case was tried at the 12 July 2004 Criminal Session of Watauga County Superior Court.
     With respect to the charge of sale and delivery of cocaine, the trial court instructed the jury:
            The Defendant has also been charged with a separate crime and that is Selling or Delivering Crack Cocaine, which again is a controlled substance under the law of the State of North Carolina. For you to find the Defendant guilty of this particular crime, the State must prove to you beyond a reasonabledoubt that the Defendant knowingly sold or delivered crack cocaine to the undercover officer in this case. Delivery of a controlled substance means the actual constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship between the two.

            Therefore if you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant knowingly sold or delivered crack cocaine to the undercover officer it would be your duty to return a verdict of guilty. If you do not so find, or if you have a reasonable doubt, then it would be your duty to return a verdict of not guilty.

    After instructing the jury on the law, the trial court then instructed the jury on how to use the verdict sheets. The trial court told the jury that the verdict sheet included a charge of sale and delivery of cocaine. The jury returned a guilty verdict on the offense of sale and delivery of cocaine.
    Defendant argues that the trial court erred by entering judgment and sentencing defendant for the Class G felony sale of cocaine. Defendant contends that the verdict only authorized a judgment for sale or delivery of cocaine, a Class H felony.
    Although defendant alleges plain error in his assignment of error, he fails to provide any explanation in his brief supporting the contention that error is fundamental. “The right and requirement to specifically and distinctly contend an error amounts to plain error does not obviate the requirement that a party provide argument supporting the contention that the trial court's instruction amounted to plain error, as required by subsections (a)and (b)(5) of [North Carolina] Rule [of Appellate Procedure] 28.” State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641, 121 S. Ct. 1660 (2001). As the defendant has failed to argue plain error, he has waived appellate review. Accordingly, we hold that defendant has waived appellate review of this assignment of error and is dismissed.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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