### 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 fi ve ye ars confinement.Defendant chal lenges (1) the le

ngth of his sentence, and

(2) the denial of

his request for alternative sen

tencing. Upon our

review of the re

cord, we affir

m the judgment of the

trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed. R ILEY , J., delivered the opinion of the court, in which W ADE , P. J. and O GLE , 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, Di strict A ttorney 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, th e victim was living in

an apartment com

plex in Nashville w

ith the defendant. Both

men believed the victim had contracted the HIV virus associated with acquired immune deficiency synd

rome (AIDS). On J

uly 24, 1998, an alte

rcation arose

between the two men, and the defendant beat the victim to death. While on a routine patrol, t he 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 appr oximate ly 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 pointthe defendant tol

d her that his

cousin was dead. She notified authorities, and the defendant was arrested and subsequently indicted for second degree murder.-2-

The defendant testified that the vi ctim was tr ying to kill himself. He stated that he was outside the apartment and when h e ret urned, 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" bloo d at him. He claims

that he was concerned about contracting HIV from the victim. Defen

dant testified tha

t he pushed the vic

tim an d 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 statedhe believed the majority of the blows were inflicted with either a "hammerlike object" or a boot or shoe. The testimony revealed that the victim suffered massive injuries. In addition to multiple contu sions an d lacerations, eleven of the victim's ribs were fractured causing internal injuries to his heart, lungs, liver and spleen. Themedical examiner testified that the victim's internal injuries were consistent with a heavy objec

t falling on him while

he was lying on his

back. Furthermore, the victim's larynx was fractured. The medical examine

r explained that t

his 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 humanblood on the hammer. However, police never recovered a knife like the one the defendant described. The jury found th

e defe ndant guilty of voluntary manslaughter. The defendant was subsequently

sentenced as a R ange I standardoffender to five years. In this app

eal as of right, defendant challenges the length and manner of service of the sentence.

STANDARD OF REVI

EW 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 re cord that the tria

l judge consider

ed the sentencing

principles a

n d 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 statutor y sentencing procedure, imposed a lawful sentence after giving due consideration and proper weig ht to the factors and principles set outunder sen tencing law, a nd the trial court’s findings of fact are adequately suppor ted by the re cord , then we may

not modify the

sentence even i

f we would have pr

eferred a diff

erent result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). ANALYSIS-3- A. Length of Sentence Defendant asse

rts his five-year sentence of confinement is excessive. Although de fendant does not challenge the application of the exceptional cruelty enhance ment factor (Tenn. Code Ann. § 40- 35- 114 (5) ), h e cl aim s th e tr ial cou rt e rro neo usl y f ound he h ad 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 groun ds existed which would tend to excuse his conduct. See Tenn. Code Ann. § 40-35-113(3). Once the trial court

determines enha

ncement and mitig

ating factors e

xist, it should start at the minimum sent ence, enhance the minimum sentence within the range for enhancement fac tors and then reduce the sentence wi thin t he 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 andprinciples of the sentencing act and its findings are supported by the record. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 198 6); Statev. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. First, the defendant a

rgues the tria

l cour t erred in finding he had a previous history of criminal convictions beyond that necessary to e stablish the range. See Tenn. Cod e An n. § 40-35- 114(1). He claims that his th ree misdemeanor

convictions do not constitute a p revious history of criminal convictions or criminal behavior. We find the trial court appropriately considered the defenda nt's h istory of criminal convictions. The defendant had prior convictions for possession of a weapon, assault, and driving on a suspended license. While these offen ses are misdemea

nors, 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. 03C01-950 8-CC -00251, Su llivan County (Tenn. Crim. App. filed January 10, 1997, at Knoxville); State v. Jerome Dixon , C.C.A. No. 02C0 1-9508-CC- 00247, Hardin Coun ty (Tenn. Crim. App. filed Jul y 26, 1996, at Jackson). Furthermore, the trial court noted that the present offense was also an assault-type offense. There fore, it appropriately accor ded this factor considerable weight. Second, the defendant claims the tri al court e rred in failing to find there were substantial grounds tending to excuse his conduct. See Tenn. Code Ann. § 40-35-113(3). He a rgues that his belief that t he vic tim h ad HIV and was wi elding a knife w ere sufficient g

rounds to excuse his conduct. The trial court found

that the defenda

nt’s actions went f

ar 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 frac

tured as well as th

e victim 's la

rynx. The autopsy revealed tear s and bruises-4-

on the victim's heart, lungs, spleen and liver. In addition the victim had multiple

external lacerations and contusions.We conclude the tr ial court did not er

r in refusing to

apply this mitigating factor. The trial court found two statutory enhancement factors and one mitigating factor. The weight to apply to ea

ch 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 Se

ntencing The defendant arg

ues he should have

been granted s

ome form of

alternative sentencing. He assertsthat since he was convicted of a Class C felony, he is presumed to be a c andidat e for alternative sentencing and the record does not preponderate aga inst that presumption. Under the Cri minal Sentencing Reform Act of 1989 , trial judges ar e 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 can d idate 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 l ong history of criminal condu

ct, the need to av

oid depreciating the seriousness of the offense, whe

ther confinemen

t is pa rticularly

appropriate to effectively

deter others like

ly to commit similar off

enses, and whether less restrictive measures have often or recently b

een unsuccessf

ully 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 p otential f

or rehabilitation when determining if an alternative sentence would be appropriate. Tenn. Code Ann. § 40 -35-103(5); Statev. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). The trial court found that the nature and extentof the victim's wounds were both shocking andexcessive. See Statev. Bingham , 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995). Thus, the trial court held t h at 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-f

our 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. Ma

kuach has told

the comp lete and entire truthful version of what occurred out there that particular night. ...[H]e didn't tell the police all that happ enedinitially. ...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.-5-

This court has found that in determining a defendant's suitability for alternativ e sentencin g, 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); S tate v. B unch , 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 andkicking the victi

m, he testified tha

t 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 includeda conviction for a ssault . 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 pro perl y denied. CONCLUSION Upon a th orough 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.