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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. RANDY ANTONE BURNETTE
Filed: 1 July 2003
1. Jury_motion for new jury denied_no transcript in record_no appellate review
The lack of a transcript of a jury voir dire prevented appellate review of whether the trial
court abused its discretion in denying defendant's motion to impanel another jury. The trial
court's discretion in impaneling a jury will not be disturbed absent a showing of abuse of
discretion, and the appellant has the burden of providing a record which allows proper review.
2. Evidence_destroyed by police dog_no evidence of bad faith
An officer's disposal of the remaining pieces of a plastic bag destroyed by a police dog
did not result in the dismissal of an indictment for cocaine possession. There was no evidence of
bad faith. N.C.G.S. § 15-11.1.
3. Drugs_ possession of cocaine_evidence sufficient
There was sufficient evidence of possession of cocaine with intent to sell and deliver
where an officer saw defendant reach into his pants; the officer asked that defendant open his
pants; the officer saw a plastic bag; defendant gabbed part of the bag and threw it down, then ran;
defendant was apprehended in a thicket; and a drug dog found and destroyed a plastic bag with the
narcotics in the thicket.
4. Drugs_possession of paraphernalia
There was sufficient evidence of possession of drug paraphernalia where razor blades were
found in a jacket lost by defendant when he was running from police and a set of digital scales
was found in a vehicle which officers had seen defendant driving.
Appeal by defendant from judgment entered 3 April 2002 by Judge
Wade Barber in Orange County Superior Court. Heard in the Court of
Appeals 5 June 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert T. Hargett, for the State.
George E. Kelly, III for defendant.
Randy Antone Burnette (defendant) appeals his jury conviction
and sentence for possession of cocaine, possession of drug
paraphernalia, and resisting a public officer. We find no error.
Carrboro Police were called to the scene of a fight in the
parking lot of a Pantry store in the early morning of 22 October
2001. Corporal Seth Everett was the first officer on the scene and
immediately recognized Carlos Negrete and defendant as two of the
three men fighting. Defendant was wearing blue jeans and a jacket.
The third man was identified as a running buddy of Negrete. While
another officer dealt with the third man, Corporal Everett ordered
defendant and Negrete to the ground.
As he was handcuffing Negrete, Corporal Everett noticed
defendant with his hands start going in his belt buckle like this
underneath his pants, putting something in his pants underneath his
belt. Concerned for his safety, Corporal Everett asked defendant
what he had put into his pants. After defendant stated he had
nothing in his pants, Everett asked defendant to show him.
Defendant opened his pants and Corporal Everett observed a baggie
sticking directly out of his -- like a corner of a sandwich baggie
sticking directly out of his underwear. After Corporal Everett
asked defendant what was in the bag, defendant reached into his
pants, made a fist, threw part of the baggie to the ground, and ran.
The officers chased defendant without ever losing sight of him
into the woods. Defendant's coat came off during his flight.
Defendant ran into a barbed wire fence in the woods, fell down, and
crawled into a thicket of briars. The officers dragged defendant
out of the thicket and placed him under arrest.
Corporal Everett did not find the plastic baggie when defendant
was searched. A K-9 unit arrived at the scene and located crackcocaine [e]xactly where [defendant] had buried himself in the
thicket. During the search of the woods, the police dog, Xaro,
found a baggie with the narcotics, but destroyed it. The remaining
pieces of the baggie were ultimately thrown away by Corporal
Xaro also searched a vehicle at the scene which officers
identified as belonging to defendant. Officer Josh Wood testified
that three weeks before the incident, he had stopped defendant
driving the vehicle because it had a broken taillight.
Officer Lori Watkins searched the coat defendant was wearing
before he fled and lost during his flight. She found four straight
razor blades wrapped in brown security wrapping. Officer Watkins
also searched the vehicle which she had seen defendant driving on
multiple occasions. She found a set of digital scales inside the
Defendant did not present any evidence. The charges of (1)
possession with intent to sell and deliver cocaine and the lesser
included offense of possession of cocaine, (2) possession of drug
paraphernalia, and (3) resisting a public officer were submitted to
the jury. The jury convicted defendant of possession of cocaine,
possession of drug paraphernalia, and resisting a public officer.
Defendant admitted to being an habitual felon pursuant to a plea
agreement to consolidate the charges and to sentence in the
mitigated range. Defendant appeals.
Defendant contends the trial court erred in (1) denying
defendant's motion to repanel the jury (2) denying defendant'smotion to dismiss the indictment based on destruction of evidence
and (3) denying defendant's motion to dismiss for insufficient
III. Motion to Repanel the Jury
 During voir dire, a potential juror stated that she knew
defendant through her brother. It was later developed by the State
that the juror's brother had been involved in a controlled substance
offense. Defendant objected and moved for a new jury to be
selected. The trial court denied defendant's motion. Defendant
contends that the jury was given information obviously prejudicial
- that defendant had a friendship with a convicted drug related
offender prior to being empaneled and that the trial court erred
in denying defendant's motion. We disagree.
The record does not contain a transcript of the jury voir dire
only the restatement by defendant's counsel on the record of what
transpired. The trial court has broad discretion to see that a
competent, fair, and impartial jury is impaneled, and its rulings
in that regard will not be reversed absent a showing of abuse of its
discretion. State v. Harris, 283 N.C. 46, 48-49, 194 S.E.2d 796,
797, cert. denied, 414 U.S. 850, 38 L. Ed. 2d 99 (1973). The
appellant has the burden of providing a record which allows the
appellate courts to properly review the assignment of error.
Jackson v. Housing Authority of High Point, 321 N.C. 584, 585, 364
S.E.2d 416, 417 (1988). We are unable to determine whether the
trial court abused its discretion in denying defendant's motion
without a transcript. This assignment of error is overruled.
IV. Destruction of Evidence
 Defendant contends the trial court erred in denying
defendant's motion to dismiss the indictment against him on the
grounds that the arresting officers destroyed evidence when they
deliberately threw the pieces of plastic bag allegedly containing
the drugs found in a thicket into the trash. Defendant asserts his
rights to due process were violated under the U.S. and N.C.
N.C. Gen. Stat. § 15-11.1 (2001) requires law enforcement
officers to safely keep [property seized pursuant to lawful
authority] under the direction of the court or magistrate as long
as necessary to assure that the property will be produced at and may
be used as evidence in any trial. In Arizona v. Youngblood, 488
U.S. 51, 102 L. Ed. 2d 281 (1988), the Supreme Court held that
unless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law and does not require a
dismissal of the indictment. 488 U.S. at 58, 102 L. Ed. 2d at 289.
Our State adopted the reasoning and bad faith requirement of
Youngblood in State v. Hunt, 345 N.C. 720, 483 S.E.2d 417 (1997).
The trial court found the plastic bag was intentionally
destroyed but also found no evidence of bad faith on the part of
law enforcement. Defendant has failed to provide any evidence or
argument that Corporal Everett acted with bad faith. Without a
showing of bad faith, the failure to preserve potentially
exculpatory evidence does not constitute a denial of due process.
This assignment of error is overruled.
V. Insufficient Evidence
Defendant contends the trial court erred in denying his motion
to dismiss the charges of possession of cocaine with intent to sell
and deliver and possession of drug paraphernalia.
The State must submit substantial evidence of every element of
the crimes charged in order to survive a motion to dismiss. State
v. Bruton, 344 N.C. 381, 387, 474 S.E.2d 336, 341 (1996).
'Substantial evidence is evidence from which any rational trier of
fact could find the fact to be proved beyond a reasonable doubt.'
State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 215 (1991)
(quoting State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399
(1986)). The evidence is to be viewed in a light most favorable to
the State and the State is entitled to every reasonable inference
from the evidence. Id. (citing State v. Earnhardt, 307 N.C. 62, 296
S.E.2d 649 (1982)).
A. Possession of Controlled Substance
 Defendant was charged with possession of cocaine with the
intent to sell and deliver under N.C. Gen. Stat. § 90-95(a)(1) and
convicted of and sentenced for the lesser included offense of felony
possession of cocaine under N.C. Gen. Stat. § 90-95(d)(2). The
elements of felony possession are (1) defendant (2) knowingly
possesses (3) cocaine.
The State presented evidence that defendant reached into his
pants and opened his pants at the request of law enforcement
officers. Corporal Everett noticed part of a plastic bag sticking
out of defendants' underwear. Defendant reached in, made a fist,
grabbed part of the plastic bag, tore it, threw it to the ground,
and ran. Corporal Everett pursued defendant and never lost sightof him. When defendant was apprehended after falling and crawling
into the thicket, he did not have possession of the plastic bag.
Xaro located crack cocaine in the same location where defendant
fell. The cocaine was found inside a plastic bag which had been
shredded by Xaro.
Taken in a light most favorable to the State and with all
reasonable inferences taken therefrom, sufficient evidence that
defendant knowingly possessed cocaine was presented to survive
defendant's motion to dismiss.
B. Possession of Drug Paraphernalia
 Defendant also was charged with and convicted of possession
of drug paraphernalia in violation of N.C. Gen. Stat. § 90-113.22.
Possession may be either actual or constructive. It is not
necessary to show that an accused has exclusive control of the
premises where paraphernalia are found, but 'where possession ...
is nonexclusive, constructive possession ... may not be inferred
without other incriminating circumstances.' State v. McLaurin, 320
N.C. 143, 146, 357 S.E.2d 636, 638 (1987) (quoting State v. Brown,
310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984)).
The State presented evidence that defendant was wearing a
jacket that night while fighting at the Pantry. Defendant lost the
jacket while he ran and was being pursued by the police. Officer
Watkins testified that she searched the jacket she saw defendant
wearing that night. She found four straight razor blades wrapped
in brown wrapping.
Officer Watkins found a set of digital scales inside a vehicle
located at the Pantry. She had seen defendant driving the samevehicle on multiple occasions. Officer Wood stopped defendant
driving the same vehicle three weeks prior to this arrest. Taken
in a light most favorable to the state, there is sufficient evidence
to show defendant possessed drug paraphernalia. This assignment of
error is overruled.
Defendant has failed to show the trial court abused its
discretion in denying defendant's motion for a new jury. The trial
court did not err in denying defendant's motions to dismiss for
violation of defendant's due process rights or for insufficient
evidence. Defendant's trial and sentencing were free from errors
which he assigned and argued.
Judges MCGEE and CALABRIA concur.
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