      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                      OCTOBER 1996 SESSION
                                                       FILED
                                                        March 24, 2008

                                                       Cecil Crowson, Jr.
                                                        Appellate Court Clerk


STATE OF TENNESSEE,           )
                              ) C.C.A. No. 02C01-9510-CR-00296
      Appellee,               )
                              ) Shelby County
V.                            )
                              ) Honorable Joseph B. Dailey, Judge
                              )
DARREN CAMPBELL,              ) (First Degree Murder; Attempted
                              ) Second Degree Murder)
      Appellant.              )




FOR THE APPELLANT:               FOR THE APPELLEE:

Brett B. Stein                   Charles W. Burson
Attorney at Law                  Attorney General & Reporter
100 N. Main, Suite 3102
Memphis, TN 38103                Ellen H. Pollack
                                 Assistant Attorney General

                                 Mary Anne Queen
                                 Legal Assistant
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 John W. Pierotti
                                 District Attorney General

                                 John Campbell
                                 Asst. Dist. Attorney General
                                 201 Poplar, Third Floor
                                 Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                             OPINION
        The appellant, Darren Campbell, was convicted by a jury of first degree

murder. This Court reduced his conviction to second degree murder and

remanded to the trial court for sentencing.1 The appellant was sentenced as a

Range I offender to 23 years incarceration. His sole issue on appeal is whether

his sentence was excessive. We affirm the trial court's judgment.



        The appellant and three men were consuming alcoholic beverages at a

rooming house. The appellant and one of the men drove to a local restaurant

and picked up some chicken. When the appellant and the man returned with the

chicken, the man refused to share his chicken with the appellant. The appellant

got irate and left the room. Approximately four minutes later, the appellant

returned with a gun. He approached the man with the chicken and asked,

"What's up with the chicken?" Apparently, the man's response was unfavorable,

so the appellant shot him. The man died of gunshot wounds to the head and

chest. Another victim was shot but lived. The third person fled for his life.



        The appellant argues that the trial judge abused his discretion in

assessing the weight to be afforded each enhancing and mitigating factor. It was

incumbent upon the appellant to prepare a record that included all materials

necessary for disposition on appeal. See State v. Beech, 744 S.W.2d 585, 588

(Tenn. Crim. App. 1987) (holding "in the absence of an adequate record we must

presume that the trial court's ruling was adequately supported by the evidence.").

The appellant's presentence report is not a part of the record before us.



        Upon conducting a de novo review, we find five enhancement factors

applicable: (1) the appellant has a previous history of criminal activity, Tenn.

Code Ann. § 40-35-114(1); (2) the offense involved more than one victim, Tenn.

Code Ann. § 40-35-114(3); (3) the appellant possessed and employed a firearm


        1
         At trial, the appellant attempted to establish an insanity defense. The defense was not
accepted. The appellate court, however, found that due to the appellant's mental health, the proof
was insufficient to establish deliberation. "W e are not comfortable . . . that the defendant reflected
about his decision to kill, since his troubled mind may never have been free from the influence of
excitement or passion." State v. Campbell, No. 02-C-01-9207-CR-00150, slip op. at 10 (Tenn. Crim.
App. Feb. 23, 1996).

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during the commission of the offense, Tenn. Code Ann. § 40-35-114(9); (4) the

appellant had no hesitation about committing a crime when the risk to human life

was high, Tenn. Code Ann. § 40-35-114(10); and (5) the crime was committed

under circumstances under which the potential for bodily injury to a victim was

great, Tenn. Code Ann. § 40-35-114(16).2 We find one mitigating factor

applicable: the appellant possessed a lack of substantial judgment or inability to

appreciate the nature of his conduct. Tenn. Code Ann. § 40-35-113(6).



        The appellant is a Range I standard offender. He has been convicted of a

Class A felony. His sentence range is 15 to 25 years. In accordance with the

principles of sentencing, we are to begin at the minimum range sentence. We

increase for each enhancement factor and then reduce for each mitigating factor.

The weight afforded each factor is derived from balancing the relative degree of

culpability within the totality of the circumstances. State v. Bilbrey, 816 S.W.2d

71 (Tenn. Crim. App. 1991).



        The appellant's sentence is increased by five enhancement factors.

Although we find application of one mitigating factor, the weight afforded that

factor is minimal as the appellant's mental maladies were previously considered

in reducing his conviction from first degree murder to second degree murder.

See State v. Martin, No. 03C01-9412-CR-00448 (Tenn. Crim. App. April 1,

1996) (holding although double mitigation not prohibited by statute, whether to

double mitigate is within sentencing court's discretion). Accordingly, the

appellant's sentence set at 23 years is appropriate. We affirm the trial court.



                                                 __________________________________
                                                 PAUL G. SUMMERS, Judge


CONCUR:



        2
         Although elements of the indicted offense, factors (10), and (16) may be applicable if the
facts demonstrate a culpability distinct from and appreciably greater than that incident to the convicted
offense. State v. Jones, 883 S.W .2d 596 (Tenn. 1994). Separate and distinct culpability may arise
when individuals other than the victim are present and subject to peril. See State v. Makoka, 885
S.W .2d 366, 373 (Tenn. Crim. App. 1994) (holding factor (10) applicable when other possible victims
are present). The record reveals that others were present in the rooming house.

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_______________________________
JOHN H. PEAY, Judge




_______________________________
DAVID G. HAYES, Judge




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