            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

            STATE OF TENNESSEE v. SIMON CHUEL MAKUACH

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 98-D-2502    Steve R. Dozier, Judge



                    No. M1999-01399-CCA-R3-CD - Decided June 2, 2000


Defendant appeals his sentence imposed after a Davidson County jury found him guilty of voluntary
manslaughter, a Class C felony. He was sentenced as a Range I standard offender to five years
confinement. Defendant challenges (1) the length of his sentence, and (2) the denial of his request
for alternative sentencing. Upon our review of the record, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

RILEY, J., delivered the opinion of the court, in which WADE, P. J. and OGLE , J. joined.

Karl Dean, District Public Defender; Jeffrey A. DeVasher (on appeal), Laura C. Dykes and Gary C.
Tamkin (at trial), Assistant Public Defenders, for the appellant, Simon Chuel Makuach.

Paul G. Summers, Attorney General and Reporter; Tonya Miner, Assistant Attorney General; Victor
S. Johnson III, District Attorney General; Derrick L. Scretchen and Jon P. Seaborg, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

        The victim and the defendant were cousins who immigrated to the United States from Sudan,
Africa. At the time of his death, the victim was living in an apartment complex in Nashville with
the defendant. Both men believed the victim had contracted the HIV virus associated with acquired
immune deficiency syndrome (AIDS). On July 24, 1998, an altercation arose between the two men,
and the defendant beat the victim to death.

        While on a routine patrol, the complex's security officer was contacted by the defendant's
neighbor, who stated she had heard the victim and the defendant screaming and "banging around"
for approximately thirty minutes. She also stated that she heard a woman and a child crying and
screaming. The security guard testified that when she initially approached the apartment, the
defendant stated everything was fine and attempted to close the door. When she tried to open the
door, something was blocking it and she again asked the defendant what was going on inside. At
that point the defendant told her that his cousin was dead. She notified authorities, and the defendant
was arrested and subsequently indicted for second degree murder.
        The defendant testified that the victim was trying to kill himself. He stated that he was
outside the apartment and when he returned, the victim had a knife and was bleeding from the
mouth. Defendant further stated that he attempted to take the knife from the victim, and the victim
cut him on the lip and "spit" blood at him. He claims that he was concerned about contracting HIV
from the victim. Defendant testified that he pushed the victim and they both fell to the floor, and
the victim hit his head on the door knob. He contends the victim was bleeding profusely. Therefore,
he covered the victim with a sheet to stop the bleeding and also to shield the body from the view of
defendant’s children.

        The medical examiner testified that the victim suffered at least twenty to twenty-four blunt
force blows. He stated he believed the majority of the blows were inflicted with either a "hammer-
like object" or a boot or shoe. The testimony revealed that the victim suffered massive injuries. In
addition to multiple contusions and lacerations, eleven of the victim's ribs were fractured causing
internal injuries to his heart, lungs, liver and spleen. The medical examiner testified that the victim's
internal injuries were consistent with a heavy object falling on him while he was lying on his back.
Furthermore, the victim's larynx was fractured. The medical examiner explained that this injury is
very rare since it takes a considerable amount of force. He stated that he believed this injury was
accomplished by stomping on the victim's neck while he was lying on the ground.

         Officers testified that a broken hammer was found at the scene. A technician from the crime
lab testified that there was human blood on the hammer. However, police never recovered a knife
like the one the defendant described.

       The jury found the defendant guilty of voluntary manslaughter. The defendant was
subsequently sentenced as a Range I standard offender to five years. In this appeal as of right,
defendant challenges the length and manner of service of the sentence.


                                    STANDARD OF REVIEW

        This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden
is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d)
Sentencing Commission Comments.

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and the trial court’s findings of fact are adequately supported by the
record, then we may not modify the sentence even if we would have preferred a different result.
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                                             ANALYSIS

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                                       A. Length of Sentence

       Defendant asserts his five-year sentence of confinement is excessive. Although defendant
does not challenge the application of the exceptional cruelty enhancement factor (Tenn. Code Ann.
§ 40-35-114(5)), he claims the trial court erroneously found he had a prior history of criminal
convictions (Tenn. Code Ann. § 40-35-114 (1)). In addition, he argues the trial court should have
found that substantial grounds existed which would tend to excuse his conduct. See Tenn. Code
Ann. § 40-35-113(3).

        Once the trial court determines enhancement and mitigating factors exist, it should start at
the minimum sentence, enhance the minimum sentence within the range for enhancement factors and
then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-
210(e). No particular weight for each factor is prescribed by the statute, as the weight given to each
factor is left to the discretion of the trial court as long as the trial court complies with the purposes
and principles of the sentencing act and its findings are supported by the record. State v. Moss, 727
S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); see
Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

       First, the defendant argues the trial court erred in finding he had a previous history of
criminal convictions beyond that necessary to establish the range. See Tenn. Code Ann. § 40-35-
114(1). He claims that his three misdemeanor convictions do not constitute a previous history of
criminal convictions or criminal behavior.

        We find the trial court appropriately considered the defendant's history of criminal
convictions. The defendant had prior convictions for possession of a weapon, assault, and driving
on a suspended license. While these offenses are misdemeanors, they may still be considered by the
trial court. State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995); State v. Fred Edmond
Dean, C.C.A. No. 03C01-9508-CC-00251, Sullivan County (Tenn. Crim. App. filed January 10,
1997, at Knoxville); State v. Jerome Dixon, C.C.A. No. 02C01-9508-CC-00247, Hardin County
(Tenn. Crim. App. filed July 26, 1996, at Jackson). Furthermore, the trial court noted that the
present offense was also an assault-type offense. Therefore, it appropriately accorded this factor
considerable weight.

        Second, the defendant claims the trial court erred in failing to find there were substantial
grounds tending to excuse his conduct. See Tenn. Code Ann. § 40-35-113(3). He argues that his
belief that the victim had HIV and was wielding a knife were sufficient grounds to excuse his
conduct.

        The trial court found that the defendant’s actions went far beyond that which might
reasonably be deemed justifiable. The trial court stated that in making this determination it relied
heavily on the medical examiner's testimony. At trial the medical examiner testified that the victim
was subjected to at least twenty to twenty-four blunt force blows. He stated that all but one of the
victim's ribs were fractured as well as the victim's larynx. The autopsy revealed tears and bruises


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on the victim's heart, lungs, spleen and liver. In addition the victim had multiple external lacerations
and contusions. We conclude the trial court did not err in refusing to apply this mitigating factor.

        The trial court found two statutory enhancement factors and one mitigating factor. The
weight to apply to each factor is left to the sound discretion of the trial court. Moss, 727 S.W.2d at
238. The defendant was appropriately sentenced within the applicable range, and we find no reason
to disturb the length of the sentence.

                                      B. Alternative Sentencing

        The defendant argues he should have been granted some form of alternative sentencing. He
asserts that since he was convicted of a Class C felony, he is presumed to be a candidate for
alternative sentencing and the record does not preponderate against that presumption.

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. An especially mitigated or standard offender convicted of a Class C,
D or E felony is presumed to be a favorable candidate for alternative sentencing options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6).

        In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also Ashby, 823 S.W.2d at 169. Additionally, a court should consider the defendant’s potential
or lack of potential for rehabilitation when determining if an alternative sentence would be
appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim.
App. 1996).

       The trial court found that the nature and extent of the victim's wounds were both shocking
and excessive. See State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995). Thus, the trial
court held that confinement was necessary to avoid depreciating the seriousness of the offense.
Tenn. Code Ann. § 40-35-103(1)(B). Once again, the court noted that the victim suffered a thirty
minute beating in which he was struck some twenty to twenty-four times, causing massive injuries.

        In addition the trial court considered the defendant's credibility in relation to his potential for
rehabilitation. In making its evaluation the trial court stated,

        I'm not sure that Mr. Makuach has told the complete and entire truthful version of
        what occurred out there that particular night. ...[H]e didn't tell the police all that
        happened initially. ...But, even the trial testimony... I'm not sure, based on the
        medical testimony, that you're gonna have this amount of injuries, ... from two blows
        and a fall against the door.


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         This court has found that in determining a defendant's suitability for alternative sentencing,
the trial court may properly consider credibility, remorse, and candor as they reflect upon potential
for rehabilitation. See Tenn. Code Ann. § 40-35-103(5); State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994). In the instant case,
the defendant continued to deny striking the victim with the hammer. While he admitted to striking
and kicking the victim, he testified that he inflicted only three blows. This is completely inconsistent
with the testimony of the medical examiner.

        Furthermore, as previously discussed, the defendant had a prior criminal history which
included a conviction for assault. As the trial court noted, the present offense is an assault which
resulted in a homicide.

      Therefore, considering the seriousness of the offense, the defendant’s lack of credibility and
remorse, and his past criminal behavior, we find that alternative sentencing was properly denied.

                                          CONCLUSION

        Upon a thorough review of the record, we conclude the trial court properly considered the
principles of sentencing and all relevant facts and circumstances. Thus, the judgment of the trial
court is AFFIRMED.




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