¶1dissenting. The majority faults the trial court for analyzing defendant’s claim for a new trial as based on newly discovered evidence. This, however, is precisely the claim that defendant made to the trial court. The motion for a new trial was not, as suggested by the majority, based on the failure to provide *620the FBI report. This ground was not even mentioned in the supporting memorandum or in argument on the motion.
¶2At argument on the motion, defendant conceded that the prosecution did not have the FBI report, and went on to argue that the results of the hair testing should be subjected to the analysis for newly discovered evidence mandated by State v. Miller, 151 Vt. 337, 560 A.2d 376 (1989). The court examined the claim under the new evidence standard. Defendant cannot complain on appeal of action that he requested the court to take. State v. Grenier, 158 Vt. 153, 157, 605 A.2d 853, 856 (1992).
¶3The majority also concludes that defendant was prejudiced by the denial of the continuance. The request for a continuance came in a letter requesting a two-week delay in the start of the trial because of the death of the father of defense counsel’s investigator. The letter also stated that the defense was awaiting discovery, but was prepared to proceed to trial in two weeks and did not condition this willingness upon the receipt of the discovery. The motion was denied by a judge other than the trial judge. At the argument on the new trial motion, defense counsel stated that the trial judge strongly implied that he wanted to proceed to trial, to which the defense attorney responded, “Fine.” Defense counsel also said that, at the time, he might have preferred not to proceed with the trial, but he also admitted that he had not argued strenuously for a continuance. By responding that it was “Fine” to proceed to trial, defendant abandoned the earlier request for continuance, which was not based on the ground now asserted.
¶4The majority opinion also states that there was a failure on the part of the State to meet a discovery obligation. Defendant was seeking the results of the FBI testing requested by the State. He did not ask for independent testing or a delay to have that done. The prosecution was obligated to provide such results if “within the prosecuting attorney’s possession, custody, or control.” YR.Cr.E 16(a)(2)(C). Under the circumstances of this case, the discovery obligation of the prosecutor did not arise until the test result was received. Unlike the majority opinion, the record makes clear that the prosecution had not received the FBI report prior to the conclusion of the trial. Also, defense counsel stressed in the new trial hearing that he did not believe that the prosecution should be held accountable for the reporting delay, or that defendant was the victim of any prosecutorial misfeasance.
¶5The majority’s assertion that only a short delay was needed to secure the lab analysis is pure hindsight. A State chemist had called the FBI one week before trial to inquire about the testing, and was informed that testing had not begun. There was no failure to comply with the discovery obligation, and the trial court was not required to grant a continuance on a ground that defendant had not suggested.
¶6I also fail to see how defendant was prejudiced by the court’s denial of the motion to continue. In cross-examination of the investigating officer, defendant established that evidence was sent to the FBI, and that if any such evidence tended to tie defendant into the case, the officer would know about it. The obvious inference from the State’s failure to present FBI test results linking defendant to the case is that such inculpatory evidence did not exist. Defendant argues that the test results showing no match would have exculpated him. But considering that a hair sample was taken from the victim of a brief sexual assault after she had showered, changed her clothes and gone to bed, the FBI report would not have altered the inference of guilt that the jury already had derived from other substantial evidence, including the victim’s eyewitness identification. Thus, the FBI re*621port would not have changed the result and defendant was not prejudiced.
¶7I would affirm.