{ "id": 4159292, "name": "STATE OF NORTH CAROLINA v. RANDY LEE SELLARS", "name_abbreviation": "State v. Sellars", "decision_date": "2008-08-05", "docket_number": "No. COA04-289-2", "first_page": "703", "last_page": "712", "citations": [ { "type": "official", "cite": "191 N.C. App. 703" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "638 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637356 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/se2d/638/0452-01" ] }, { "cite": "361 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736985 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/nc/361/0041-01" ] }, { "cite": "638 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637356 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "453" }, { "page": "455" }, { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0452-01" ] }, { "cite": "248 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "857" } ], "opinion_index": 0 }, { "cite": "296 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564559 ], "year": 1978, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0058-01" ] }, { "cite": "519 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "72" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239343 ], "year": 1999, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0116-01" ] }, { "cite": "451 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "370" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525978 ], "year": 1995, "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0549-01" ] }, { "cite": "398 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "317" } ], "opinion_index": 0 }, { "cite": "327 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497579 ], "year": 1990, "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0599-01" ] }, { "cite": "463 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "834", "parenthetical": "citing State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990)" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 752", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917959 ], "year": 1995, "pin_cites": [ { "page": "758", "parenthetical": "citing State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0752-01" ] }, { "cite": "527 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248184 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "9" }, { "page": "47" }, { "page": "19" }, { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/us/527/0001-01" ] }, { "cite": "171 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "276 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560417 ], "year": 1970, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0142-01" ] }, { "cite": "548 U.S. 212", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3500415 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/us/548/0212-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "574 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "opinion_index": 0 }, { "cite": "155 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248942 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/155/0051-01" ] }, { "cite": "361 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736985 ], "weight": 5, "year": 2006, "pin_cites": [ { "page": "42" }, { "page": "45" }, { "page": "49" }, { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0041-01" ] }, { "cite": "643 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638285 ], "year": 2007, "pin_cites": [ { "page": "919", "parenthetical": "holding that although the evidence was such that \"the jury could have found the [heinous, atrocious, and cruel] aggravator,\" it did not follow \"that the jury necessarily would have found it beyond a reasonable doubt\"" } ], "opinion_index": 1, "case_paths": [ "/se2d/643/0915-01" ] }, { "cite": "626 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635228 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/626/0838-01" ] }, { "cite": "616 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633605 ], "pin_cites": [ { "page": "659" } ], "opinion_index": 1, "case_paths": [ "/se2d/616/0650-01" ] }, { "cite": "638 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637356 ], "year": 2006, "pin_cites": [ { "page": "458", "parenthetical": "quoting Neder v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47, 119 S. Ct. 1827, 1834 (1999)" } ], "opinion_index": 1, "case_paths": [ "/se2d/638/0452-01" ] }, { "cite": "361 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739670 ], "year": 2007, "pin_cites": [ { "page": "331", "parenthetical": "holding that although the evidence was such that \"the jury could have found the [heinous, atrocious, and cruel] aggravator,\" it did not follow \"that the jury necessarily would have found it beyond a reasonable doubt\"" } ], "opinion_index": 1, "case_paths": [ "/nc/361/0325-01" ] }, { "cite": "454 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "339 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2559815, 2556013, 2558702, 2559193, 2556030 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/339/0741-05", "/nc/339/0741-01", "/nc/339/0741-02", "/nc/339/0741-04", "/nc/339/0741-03" ] }, { "cite": "447 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "821", "parenthetical": "\"The defense of diminished capacity applies to the element of specific intent to kill which is an essential element of assault with a deadly weapon with intent to kill inflicting serious injury.\"" } ], "opinion_index": 1 }, { "cite": "116 N.C. App. 225", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523180 ], "year": 1994, "pin_cites": [ { "page": "231", "parenthetical": "\"The defense of diminished capacity applies to the element of specific intent to kill which is an essential element of assault with a deadly weapon with intent to kill inflicting serious injury.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/116/0225-01" ] }, { "cite": "126 S. Ct. 1798", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2006, "opinion_index": 1 }, { "cite": "164 L. Ed. 2d 537", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 1 }, { "cite": "547 U.S. 1081", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 1 }, { "cite": "360 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796900, 3789221, 3792485, 3795689, 3796205, 3786965, 3790197, 3796442, 3787038 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/360/0180-06", "/nc/360/0180-09", "/nc/360/0180-02", "/nc/360/0180-07", "/nc/360/0180-01", "/nc/360/0180-08", "/nc/360/0180-03", "/nc/360/0180-04", "/nc/360/0180-05" ] }, { "cite": "172 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321231 ], "pin_cites": [ { "page": "685" } ], "opinion_index": 1, "case_paths": [ "/nc-app/172/0673-01" ] }, { "cite": "118 S. Ct. 710", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1998, "opinion_index": 1 }, { "cite": "139 L. Ed. 2d 651", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 1 }, { "cite": "522 U.S. 1056", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11589312, 11589826, 11589763, 11589283, 11589542, 11589414, 11589704, 11589341, 11589965, 11589455, 11589649, 11589375, 11589909, 11589498, 11589597, 11589887 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/us/522/1056-02", "/us/522/1056-13", "/us/522/1056-12", "/us/522/1056-01", "/us/522/1056-08", "/us/522/1056-05", "/us/522/1056-11", "/us/522/1056-03", "/us/522/1056-16", "/us/522/1056-06", "/us/522/1056-10", "/us/522/1056-04", "/us/522/1056-15", "/us/522/1056-07", "/us/522/1056-09", "/us/522/1056-14" ] }, { "cite": "488 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "231", "parenthetical": "\"A defendant is entitled to present evidence that a diminished mental capacity not amounting to legal insanity negated his ability to form the specific intent to kill required for a first-degree murder conviction on the basis of premeditation and deliberation.\"" } ], "opinion_index": 1 }, { "cite": "346 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139340 ], "year": 1997, "pin_cites": [ { "page": "698", "parenthetical": "\"A defendant is entitled to present evidence that a diminished mental capacity not amounting to legal insanity negated his ability to form the specific intent to kill required for a first-degree murder conviction on the basis of premeditation and deliberation.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/346/0689-01" ] }, { "cite": "226 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "300 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560989 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/300/0223-01" ] }, { "cite": "213 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "316" } ], "opinion_index": 1 }, { "cite": "286 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569898 ], "year": 1975, "pin_cites": [ { "page": "565" } ], "opinion_index": 1, "case_paths": [ "/nc/286/0549-01" ] }, { "cite": "527 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "46", "parenthetical": "\"Therefore, to commit the crime of attempted murder, one must specifically intend to commit murder.\"" } ], "opinion_index": 1 }, { "cite": "351 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155934 ], "year": 2000, "pin_cites": [ { "page": "449", "parenthetical": "\"Therefore, to commit the crime of attempted murder, one must specifically intend to commit murder.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/351/0448-01" ] }, { "cite": "474 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "345" } ], "opinion_index": 1 }, { "cite": "344 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867667 ], "year": 1996, "pin_cites": [ { "page": "393" } ], "opinion_index": 1, "case_paths": [ "/nc/344/0381-01" ] }, { "cite": "127 S. Ct. 2281", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2007, "opinion_index": 1 }, { "cite": "167 L. Ed. 2d 1114", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2007, "opinion_index": 1 }, { "cite": "550 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "year": 2007, "opinion_index": 1 }, { "cite": "398 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "317", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "327 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497579 ], "year": 1990, "pin_cites": [ { "page": "605", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc/327/0599-01" ] }, { "cite": "527 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248184 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "9" }, { "page": "47" }, { "page": "1834" } ], "opinion_index": 1, "case_paths": [ "/us/527/0001-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 3, "year": 2004, "opinion_index": 1, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "574 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "106", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "155 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248942 ], "year": 2002, "opinion_index": 1, "case_paths": [ "/nc-app/155/0051-01" ] }, { "cite": "361 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736985 ], "year": 2006, "pin_cites": [ { "page": "49", "parenthetical": "quoting Neder v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47, 119 S. Ct. 1827, 1834 (1999)" } ], "opinion_index": 1, "case_paths": [ "/nc/361/0041-01" ] } ], "analysis": { "cardinality": 999, "char_count": 24271, "ocr_confidence": 0.743, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1355625366575426 }, "sha256": "308200be8408c4910d50d84da93346b94055024322eece297fac7979820ded64", "simhash": "1:2b3ddeaae62e5774", "word_count": 4059 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN concurs.", "Judge GEER dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. RANDY LEE SELLARS" ], "opinions": [ { "text": "CALABRIA, Judge.\nThe Supreme Court of North Carolina remanded this case for reconsideration. We hold the trial court\u2019s error was harmless beyond a reasonable doubt and preserve defendant\u2019s sentence as determined by the trial court.\nThe facts described in State v. Sellers [sic], 155 N.C. App. 51, 574 S.E.2d 101 (2002) are repeated in this opinion. The State\u2019s evidence showed that just before 2 a.m. on 28 October 1999, Randy Lee Sellars (\u201cdefendant\u201d) entered the Pantry Convenience Store in Graham, North Carolina and told the clerk to call the police because he needed to speak to a law man. Defendant wore a uniform with an insignia which read \u201cDepartment of Justice, Federal Bureau of Prisons.\u201d He carried two guns, a 9 millimeter semi-automatic Ruger pistol, and a .380 Lorcin semi-automatic pistol. The clerk testified that defendant\u2019s eyes were \u201ckind of shiney [sic],\u201d \u201clike he had been drinking alcohol.\u201d The clerk called 911 and told the operator a man with the Department of Justice carrying two guns wanted some Graham police officers to come to the store. Three officers responded. Officers Peter Acosta and Sam Ray (\u201cOfficer Acosta\u201d and \u201cOfficer Ray\u201d respectively) arrived in one police car and Officer Christopher Denny (\u201cOfficer Denny\u201d) arrived in a separate police car. When Officer Ray arrived, he pulled up next to defendant. Officer Acosta asked defendant through Officer Ray\u2019s open window, what was up. Defendant responded \u201cnothing much\u201d and then asked them if they thought that justice had been done in the world that day. When Officer Acosta noticed defendant\u2019s gun (the Ruger), he exited the car, drew his weapon and maneuvered to the rear passenger side. He warned Officer Denny, who was also exiting his car, that defendant had a gun and told him to get him away from the car. Officers Acosta and Denny each told defendant to put down the gun. Defendant said \u201cI\u2019m immortal\u201d and asked if they believed in God. Defendant then shot into the air, maneuvered himself in front of the car and began shooting into the front of the car where Officer Ray was sitting. Officer Acosta fired at defendant, and defendant shot back at Officer Acosta. Officer Ray partially exited the car and fired a shot at defendant. Defendant then fired into Officer Ray\u2019s car door. Officer Ray was hit in the chest, but was not injured because he was wearing a protective vest. Officer Denny was crouched behind his patrol car when defendant\u2019s bullet struck his hand, rendering him unable to fire his weapon. During a short pause in the exchange of fire, Officer Denny ran towards the back of the Pantry building.\nThe gunfire between the officers and defendant occurred while customers were inside the store. When the shooting began, the customers who were in their cars ran into the store for safety. One such individual, Nathaniel Newton, was sleeping in the backseat of a vehicle stopped at the gas pumps and was awakened by the gunshots. He testified, \u201cI sat and I thought. I was like, well, bullets hit the gas pumps and something, they could blow up, and like I could run into the store and be a little safer .... I just ducked my head and ran.\u201d Another customer, Toby Overman, was preparing to leave the parking lot in his truck when the shooting started. He crouched down in the seat and then exited the truck. He saw defendant with his gun and held up his hands. He sought cover first behind an ATM machine, and then behind the Pantry building.\nAs defendant headed north on South Main Street, additional officers arrived. Officer Chris Anderson, with the assistance of a P.A. system, directed defendant to drop his weapon. Defendant waved his gun in their direction and said \u201cBring it on.\u201d The officers shot defendant and were able to restrain him with handcuffs. The entire incident lasted three to four minutes. Officer Acosta recalled defendant repeatedly yelled that he \u201cwas the son of God and wouldn\u2019t die.\u201d\nAccording to defendant\u2019s evidence, he suffered from a mental illness. He was honorably discharged from the Air Force and received a 30% mental disability rating. He had been taking medication but stopped before the incident. Four experts testified that in their opinion defendant did not know right from wrong at the time of the incident.\nOn 7 March 2001, the jury returned guilty verdicts for three counts of assault with a firearm on a law enforcement officer, one count of assault with a deadly weapon, one count of assault with a deadly weapon inflicting serious injury, and one count of discharging a firearm into occupied property. During sentencing, the trial court found as aggravating factors for all convictions that: (1) defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person; and (2) defendant committed the offenses while on pretrial release. The trial court found as mitigating factors for all convictions that defendant: (1) was suffering from a mental condition that was insufficient to constitute a defense but significantly reduced his culpability for the offenses; (2) was honorably discharged from the United States Air Force; (3) had a support system in his community; and (4) had a positive employment history or was gainfully employed. The trial court determined that the aggravating factors outweighed the mitigating factors and sentenced defendant in the aggravated range to four consecutive terms of a minimum of 31 months to a maximum of 47 months in the North Carolina Department of Correction.\nI. Procedural History\nDefendant appealed to this Court and in an opinion issued 31 December 2002, we found no error at trial but remanded the case for re-sentencing. State v. Sellers [sic], 155 N.C. App. 51, 574 S.E.2d 101 (2002). Upon re-sentencing, the trial court again found as aggravating factors that: (1) defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person; and (2) defendant committed the offenses while on pretrial release. The trial court determined that the aggravating factors outweighed the mitigating factors and re-sentenced defendant in the aggravated range to the same term of incarceration as his initial sentence. Defendant appealed.\nIn an opinion issued 6 September 2005, this Court applied Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) and determined the trial judge\u2019s consideration of evidence of aggravating factors not found by a jury or admitted by the defendant violated the Sixth Amendment to the Constitution and warranted re-sentencing. State v. Sellars, No. COA04-289, slip op. (Sept. 6, 2005). The case was remanded to the trial court for re-sentencing.\nOn 19 December 2006, the Supreme Court vacated our order to remand to the trial court and remanded to this Court for reconsideration in light of State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006). Blackwell applied Washington v. Recuenco, 548 U.S. 212, 165 L. Ed. 2d 466 (2006) to hold that a Blakely error is subject to harmless error review and not reversible per se. Blackwell, 361 N.C. at 42, 638 S.E.2d at 453.\nSince this Court already determined the failure of the State to submit the issue of aggravating factors to the jury was a Blakely error, Sellars, No. COA04-289, slip op. at 1, and once decided, this issue became the law of the case, State v. Moore, 276 N.C. 142, 145, 171 S.E.2d 453, 455 (1970), the remaining issue for this panel to decide is whether the error was harmless beyond a reasonable doubt. Blackwell, 361 N.C. at 45, 638 S.E.2d at 455.\nII. Harmless Error Review\n\u201cIn conducting harmless error review, we must determine from the record whether the evidence against the defendant was so \u2018overwhelming\u2019 and \u2018uncontroverted\u2019 that any rational fact-finder would have found the disputed aggravating factor beyond a reasonable doubt.\u201d Blackwell, 361 N.C. at 49, 638 S.E.2d at 458 (citing Neder v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47 (1999)). \u201cThe defendant may not avoid a conclusion that evidence of an aggravating factor is \u2018uncontroverted\u2019 by merely raising an objection at trial. Instead, the defendant must \u2018bring forth facts contesting the omitted element,\u2019 and must have \u2018raised evidence sufficient to support a contrary finding.\u2019 \u201d Id., 361 N.C. at 50, 638 S.E.2d at 458 (quoting Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53) (internal citations omitted).\nIn his brief, defendant does not challenge the trial court\u2019s finding of the aggravating factor that he committed the crime while on pretrial release under N.C. Gen. Stat. \u00a7 15A-1340.16(d)(12). Therefore this assignment of error is deemed abandoned. N.C.R. App. P. 28(b)(6) (2007). We therefore examine whether a rational fact-finder would have found beyond a reasonable doubt that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person. In imposing this factor under N.C. Gen. Stat. \u00a7 15A-1340.16(d)(8), the judge considers whether the weapon in its normal use is hazardous to the lives of more than one person and whether a great risk of death was knowingly created. State v. Evans, 120 N.C. App. 752, 758, 463 S.E.2d 830, 834 (1995) (citing State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990)).\nAfter reviewing the evidence, we conclude the trial court\u2019s finding amounted to harmless error beyond a reasonable doubt. It was uncontroverted that defendant fired a semi-automatic weapon during his altercation with Officer Ray. A semi-automatic pistol in its normal use is hazardous to the lives of more than one person. State v. Antoine, 117 N.C. App. 549, 551, 451 S.E.2d 368, 370 (1995). The evidence shows that defendant fired his weapon at the police officers and the police officers fired shots at the defendant while customers were inside the store. Some customers were in their cars when the shooting began and ran into the store for safety. Two customers testified they either hid in their cars or in the store to avoid the bullets. We conclude a rational fact-finder would find that a great risk of death was knowingly created to the lives of several people through defendant\u2019s actions.\nDefendant argues the trial court erred in presuming the defendant was a reasonable person in order to find he knowingly created a great risk of death. Defendant contends evidence of his mental illness was unrebutted by the State and supports a conclusion that he did not act \u201cknowingly.\u201d We disagree. Although defendant testified at the re-sentencing hearing that he did not know what happened that night, every person is presumed sane and the burden of proving insanity is on the defendant. State v. Dorsey, 135 N.C. App. 116, 118, 519 S.E.2d 71, 72 (1999). A diagnosis of mental illness is not conclusive on the issue of insanity. State v. Leonard, 296 N.C. 58, 65, 248 S.E.2d 853, 857 (1978). In this. case, the jury considered the issue of whether defendant\u2019s actions were excused by the insanity defense and the jury did not find that defendant was insane. We conclude the trial court\u2019s finding of the aggravating factor was harmless beyond a reasonable doubt.\nNo error.\nChief Judge MARTIN concurs.\nJudge GEER dissents in a separate opinion.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "GEER, Judge,\ndissenting.\nIn this case, the trial court erred in failing to submit to a jury the following aggravating factor: \u201cThe defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(d)(8) (2007). In State v. Blackwell, 361 N.C. 41, 49, 638 S.E.2d 452, 458 (2006) (quoting Neder v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47, 119 S. Ct. 1827, 1834 (1999)), cert denied, 550 U.S. 948, 167 L. Ed. 2d 1114, 127 S. Ct. 2281 (2007), our Supreme Court held that such Blakely errors must be reviewed by the appellate courts to determine \u201cwhether the evidence against the defendant was so \u2018overwhelming\u2019 and \u2018uncontroverted\u2019 that any rational fact-finder would have found the disputed aggravating factor beyond a reasonable doubt.\u201d Based upon my review of the record, including the jury\u2019s verdict, I cannot conclude that the evidence was overwhelming or uncontroverted as to the aggravating factor, and I, therefore, respectfully dissent.\nIn State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990) (emphasis added), our Supreme Court held that in order to find the aggravating factor at issue in this case, there are \u201ctwo considerations: (1) whether the weapon in its normal use is hazardous to the lives of more than one person; and (2) whether a great risk of death was knowingly created.\u201d While State v. Bruton, 344 N.C. 381, 393, 474 S.E.2d 336, 345 (1996), seems to establish that a semiautomatic pistol \u201cin its normal use is hazardous to the lives of more than one person,\u201d the issue still remains whether defendant knowingly created a great risk of death to more than one person. In order to establish that prong of the aggravating factor, the State would have to prove beyond a reasonable doubt that defendant (1) knowingly, (2) created a great risk of death, (3) to more than one person.\nAt the original trial and at the sentencing hearing, defendant presented evidence from four expert witnesses \u2014 two of whom were doctors from Dorothea Dix Hospital \u2014 regarding defendant\u2019s history of mental illness, including his discharge from the military with a 30% mental disability rating, his diagnosis as suffering from a psychotic disorder, his hospitalizations, and his psychotic symptoms. The evidence also indicated that defendant had ceased taking his medications \u2014 which included an antipsychotic drug, a mood stabilizer, and antidepressants \u2014 for the 10 months prior to the shooting. Each of the expert witnesses testified with respect to the 28 October 1999 shooting incident that defendant had suffered a psychotic episode that interfered with his ability to know the difference between right and wrong. The State did not present any contrary expert evidence either at the original trial or at the resentencing hearing.\nAlthough defendant did not testify at the original trial, he testified at the resentencing hearing. He explained that he had unsuccessfully been trying to get an appointment at the VA hospital to adjust his medications, but the first appointment he could obtain was for 1 November 1999, three days after the shooting. Defendant testified that he told doctors in 1999 that he was trying to get the police to kill him. He explained that he knew there was a police substation at the convenience store and went there because he thought \u201cif I\u2019m shooting a round off in the air or something and trying to get, hopefully they\u2019ll take me out, because the pain, my mental anguish was so much I couldn\u2019t bear it no more.\u201d\nIn light of the extensive evidence presented regarding defendant\u2019s state of mind \u2014 the focus of the aggravating factor \u2014 certainly, we cannot say that the evidence of the aggravating factor was uncontroverted. Nor, given the State\u2019s lack of expert testimony supporting its position, can I agree that the evidence in support of the aggravating factor was overwhelming.\nThe majority opinion bases its conclusion that the evidence meets the Blackwell standard on an assumption that the jury\u2019s rejection of the insanity defense during the original trial necessarily establishes the second prong of the aggravating factor\u2019s test. This assumption is contrary to both the record and the law of this State.\nIt is apparent from the jury\u2019s actual verdict that it found defendant\u2019s evidence of his mental status persuasive even though it did not believe that defendant had met his burden of proving insanity. Although, with respect to the two officers actually struck by defendant\u2019s bullets, the jury found defendant guilty of the general intent crime of assault with a firearm upon a law enforcement officer, it found defendant not guilty of attempted first degree murder. See State v. Goble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (\u201cTherefore, to commit the crime of attempted murder, one must specifically intend to commit murder.\u201d). Likewise, the jury declined to find defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury, but, instead, found him guilty of assault with a deadly weapon inflicting serious injury.\nIn short, the jury specifically concluded that the State had failed to prove defendant acted with an intent to kill even though defendant had shot one officer in the chest three times. I believe that the jury\u2019s verdict indicates that there is a reasonable possibility that it would also have found that defendant did not knowingly create a risk of death to more than one person. This possibility is even stronger when one considers that a sentencing jury would have the benefit of defendant\u2019s testimony that he was attempting, in effect, to commit suicide.\nThe jury\u2019s rejection of the insanity defense does not, as a legal matter, conclusively establish the existence of the aggravating factor. As our Supreme Court observed in State v. Cooper, 286 N.C. 549, 565, 213 S.E.2d 305, 316 (1975), overruled in part on other grounds by State v. Leonard, 300 N.C. 223, 226 S.E.2d 631 (1980), a defendant\u2019s mental capacity may be a \u201ccrucial factor\u201d with respect to a number of issues in a criminal case, including insanity, but the \u201ctest of sufficient mental capacity\u201d will vary depending on the specific issue. I have found no authority that suggests that a jury\u2019s finding that a defendant failed to prove to its satisfaction that he was insane necessarily resolves the question whether the State has met its burden of proving beyond a reasonable doubt that defendant knowingly created a risk of death to more than one person. The evolution of our State\u2019s law regarding diminished capacity suggests, however, that a jury\u2019s rejection of the insanity defense is not conclusive.\nIt is now established in North Carolina that a defendant may offer evidence of diminished mental capacity not only to prove insanity, but also to negate the ability to form a specific intent. See, e.g., State v. Page, 346 N.C. 689, 698, 488 S.E.2d 225, 231 (1997) (\u201cA defendant is entitled to present evidence that a diminished mental capacity not amounting to legal insanity negated his ability to form the specific intent to kill required for a first-degree murder conviction on the basis of premeditation and deliberation.\u201d), cert. denied, 522 U.S. 1056, 139 L. Ed. 2d 651, 118 S. Ct. 710 (1998); State v. Staten, 172 N.C. App. 673, 685, 616 S.E.2d 650, 659 (\u201cThe defense of diminished capacity neither justifies nor excuses the commission of an offense, but rather negates only the element of specific intent, and the defendant could still be found guilty of a lesser included offense.\u201d), appeal dismissed and disc, review denied, 360 N.C. 180, 626 S.E.2d 838 (2005), cert. denied, 547 U.S. 1081, 164 L. Ed. 2d 537, 126 S. Ct. 1798 (2006); State v. Williams, 116 N.C. App. 225, 231, 447 S.E.2d 817, 821 (1994) (\u201cThe defense of diminished capacity applies to the element of specific intent to kill which is an essential element of assault with a deadly weapon with intent to kill inflicting serious injury.\u201d), appeal dismissed and disc, review denied, 339 N.C. 741, 454 S.E.2d 661 (1995). If a jury may both reject an insanity defense and find that the State failed to prove specific intent because of a defendant\u2019s mental incapacity, I can see no reason why the same should not be true with respect to the aggravating factor in this case.\nI do not believe that this Court\u2019s prior opinion in this case, State v. Sellers, 155 N.C. App. 51, 574 S.E.2d 101 (2002), holds otherwise. The prior panel simply concluded that \u201c[wjhere, as here, the jury has found defendant\u2019s evidence regarding insanity lacking, we find there is sufficient evidence for a reasonable judge to find that, despite the expert testimony to the contrary, defendant acted \u2018knowingly.\u2019 Therefore, the trial court did not err in finding this aggravating factor.\u201d Id. at 58, 574 S.E.2d at 106 (emphasis added). In other words, we previously held only that the evidence was sufficient to support a finding of the aggravating factor. Nothing in the opinion suggests that the rejection of the insanity defense mandated a finding of the aggravating factor. See State v. Hurt, 361 N.C. 325, 331, 643 S.E.2d 915, 919 (2007) (holding that although the evidence was such that \u201cthe jury could have found the [heinous, atrocious, and cruel] aggravator,\u201d it did not follow \u201cthat the jury necessarily would have found it beyond a reasonable doubt\u201d).\nI believe Hurt controls. Although the evidence at trial.meant that the original jury could have found defendant knowingly created a risk of death to more than one person, I cannot conclude beyond a reasonable doubt that the jury would have made this finding. Despite evidence that defendant shot one officer in the chest three times, the jury refused repeatedly to find that defendant acted with an intent to kill. How can this Court, without substituting its own view of the evidence, conclude beyond a reasonable doubt that a jury which did not believe defendant intended to kill would also find defendant knowingly created a risk'of death to more than one person? Maybe the jury would have, but maybe it would not. I would, therefore, remand for a new sentencing hearing.\n. Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).", "type": "dissent", "author": "GEER, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Hilda Bumett-Baker, for the State.", "Jarvis John Edgerton, TV, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RANDY LEE SELLARS\nNo. COA04-289-2\n(Filed 5 August 2008)\nSentencing\u2014 aggravating factors \u2014 knowingly created great risk of death to more than one person by means of weapon or device normally hazardous to lives of more than one person \u2014 Blakely error \u2014 harmless beyond reasonable doubt\nThe trial court committed harmless error beyond a reasonable doubt in a multiple assault with a firearm on a law enforcement officer, assault with a deadly weapon, assault with a deadly weapon inflicting serious injury, and discharging a firearm into occupied property case by considering evidence of aggravating factors not found by a jury or admitted by defendant because: (1) in regard to the finding that defendant committed the crime while on pretrial release under N.C.G.S. \u00a7 15A-1340.16(d)(12), defendant waived this issue under N.C. R. App. P. 28(b)(6) by failing to challenge it; and (2) in regard to the finding that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person under N.C.G.S. \u00a7 15A-1340.16(d)(8), it was uncontroverted that defendant fired a semi-automatic weapon during his altercation with an officer, and a semi-automatic pistol in its normal use is hazardous to the lives of more than one person; a rational factfinder would find that a great risk of death was knowingly created to the lives of several people when defendant and police officers exchanged gun fire while customers were inside the store, customers ran from their cars into the store for safety when the shooting began, or they hid in their cars to avoid bullets; and even though defendant contends the trial court erred by presuming he was a reasonable person in order to find he knowingly created a great risk of death, the jury considered and rejected defendant\u2019s insanity defense.\nJudge GEER dissenting.\nOn remand by order of the Supreme Court of North Carolina filed 19 December 2006 vacating in part and remanding the decision of the Court of Appeals, State v. Sellars, No. COA04-289, slip op. (Sept. 6, 2005), for reconsideration in light of State v. Blackwell, 361 N.C. 41, 638 S.E.2d 452 (2006). Defendant initially appealed from judgments entered 25 September 2003 by Judge James C. Spencer, Jr., in Alamance County Superior Court. Originally heard in the Court of Appeals 6 December 2004, reconsidered by the Court of Appeals on 21 May 2008.\nAttorney General Roy Cooper, by Assistant Attorney General Hilda Bumett-Baker, for the State.\nJarvis John Edgerton, TV, for defendant-appellant." }, "file_name": "0703-01", "first_page_order": 735, "last_page_order": 744 }