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, DistrictAttorney 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. 
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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 "hammerlike 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 statutorysentencing 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

theminimumsentence, 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.