         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 12, 2006

          STATE OF TENNESSEE v. MOHAMED MEDHET KARIM

                   Direct Appeal from the Circuit Court for Wayne County
                             No. 13640 Stella Hargrove, Judge


                     No. M2006-00619-CCA-R3-CD - Filed May 16, 2007


In November 2004, the defendant, Mohamed Medhet Karim, was indicted by a Wayne County grand
jury on one count of attempted first degree murder. On August 31, 2005, following a jury trial in
Wayne County Circuit Court, the jury convicted the defendant of attempted second degree murder
and imposed a fine of $10,000. Following a sentencing hearing on October 13, 2005, the trial court
sentenced the defendant to twelve years of incarceration as a Range I, standard offender, the
maximum sentence allowed under the statute. The defendant timely filed a motion for a new trial
on November 1, 2005; this motion was denied on January 4, 2006. The defendant now appeals,
claiming his sentence was excessive. In making his claim, the defendant argues that two of the
enhancement factors provided in Tennessee Code Annotated section 40-35-114 were improperly
applied to his sentence. Concluding that application of the two enhancement factors which the
defendant does not challenge is sufficient to support the twelve-year sentence imposed by the trial
court, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

Claudia S. Jack, District Public Defender; Robert H. Stovall, Jr. and Marilyn Holt, Assistant District
Public Defenders, for the appellant, Mohamed Medhet Karim.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
T. Michel Bottoms, District Attorney General; J. Douglas Dicus, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

      This case results from a traffic stop in Wayne County on August 30, 2004. On that date,
Tennessee Highway Patrol (THP) Trooper Thomas Kilpatrick pulled over the defendant’s tractor
trailer for speeding. After a verbal argument, the two men became involved in a physical altercation
in which the defendant was shot and during which Trooper Kilpatrick claims the defendant
attempted to shoot him with the trooper’s own firearm. Following the altercation, the defendant
drove away but was apprehended a short time later by law enforcement officers.

        The testimony of the trooper and the defendant regarding the events of that day differs
markedly.1 At trial, Trooper Kilpatrick testified that on the afternoon of August 30, 2004, while on
routine patrol in Wayne County, his in-car radar indicated that a tractor trailer was traveling seventy
miles per hour in a fifty-five mile per hour zone. The trooper then pulled over the truck, which was
being driven by the defendant, Mohamed Medhet Karim. Trooper Kilpatrick approached the
defendant, seated in the cab of his truck, and asked the defendant to turn off the engine. The
defendant refused this instruction. The trooper then asked the defendant for his license, registration,
and other appropriate paperwork, but the defendant instead gave Trooper Kilpatrick a handful of
receipts for tolls and gasoline. The trooper then returned the receipts and explained to the defendant
exactly what paperwork the defendant needed to produce. At that point, the defendant asked what
he had done to necessitate being pulled over; Trooper Kilpatrick responded that he had clocked the
defendant driving seventy miles per hour in a fifty-five mile per hour zone.

        At this point, Trooper Kilpatrick testified, the defendant’s behavior began to escalate.
Trooper Kilpatrick stated that the defendant began repeatedly calling the trooper a “[f—ing] liar.”
The trooper then asked the defendant to stay in the truck; the defendant responded by opening the
door. The trooper attempted to close the door, but the defendant pushed it open while continuing
to curse him and calling him a liar. At that point, Trooper Kilpatrick testified, the defendant began
pointing to his own head and saying, “I God. You get down on ground and pray to I God.” Trooper
Kilpatrick testified that he refused to follow the request of the defendant, who at this point was
speaking in a mixture of English and a language that the trooper did not understand. The defendant
then jumped in his truck, slammed the door, and spat out the window at the trooper, who was still
attempting to speak to the defendant. After the defendant spat at the trooper, Trooper Kilpatrick told
the defendant to stay in his truck because Trooper Kilpatrick intended to take the defendant into
custody. As the officer turned from the truck to walk back to his own vehicle, which he had parked
behind the defendant’s truck, the defendant released his brakes, shifted his truck into reverse, and
backed into the trooper’s cruiser, pushing the car back some forty-seven feet.

        Trooper Kilpatrick testified that after the police cruiser came to a stop, Trooper Kilpatrick
ran to his car and attempted to radio for help. As the trooper attempted to contact the other officers,
the defendant approached the trooper and pulled a knife out of his pocket. The trooper asked the
defendant to put away his knife, but the defendant shoved the officer against his car and raised his

         1
           Trooper Kilpatrick testified that THP officers are required to wear audio recording equipment which records
conversations between troopers and motorists during traffic stops. The trooper testified that he usually wore his
microphone on his belt, which he claimed allows conversations to be recorded more clearly on tape. However, most of
the conversation between the trooper and the defendant was not audible on the audio tape that documented this traffic
stop. Furthermore, the portion of the confrontation where the two men wrestled on the ground was out of view of the
car’s in-dash video camera.

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knife. The trooper again asked the defendant to put away his knife, stating “don’t make me shoot
you,” but the defendant brought the knife down, slicing through the brim of the trooper’s hat. At that
point, Trooper Kilpatrick unholstered his weapon and fired a shot at the defendant, hitting the
defendant. The defendant stabbed at the trooper again, but the defendant hit the light bar atop the
trooper’s vehicle, shattering the knife. The two men then began struggling over the trooper’s gun;
in the course of the struggle, the weapon discharged, missing the trooper.

        Then, according to Trooper Kilpatrick, the trooper’s weapon fell to the ground and the two
men went to the ground, struggling to gain control over the weapon. The defendant gained control
of the gun; according to Trooper Kilpatrick, at that point the defendant placed the gun between the
trooper’s eyes, smiled at him, and pulled the trigger. The gun misfired. The defendant then hit the
side of the gun, put the gun back between the trooper’s eyes, and pulled the trigger a second time.
Again, the gun misfired. The defendant then took the trooper’s gun with him to his truck and drove
off. A short time later, the defendant was apprehended by law enforcement, who also recovered the
trooper’s firearm.

       The defendant testified that when the trooper initially approached the defendant’s cab, the
trooper told the defendant that he, the defendant, was in hell. The defendant, believing the trooper
was being untrue, told the trooper “sagood.” When the trooper asked what this word meant, the
defendant stated that he wanted the trooper to pray. The defendant testified that he used this word
repeatedly throughout the confrontation.

        When the trooper told the defendant that he had clocked the defendant’s vehicle traveling
seventy miles per hour in a fifty-five mile per hour zone, the defendant stated that the trooper was
lying because the vehicle had a governor that kept the truck from traveling above sixty-five miles
an hour. The defendant denied cursing or spitting at the trooper, but he did admit backing his truck
into the trooper’s police cruiser.

        The defendant testified that after hitting the trooper’s vehicle, he exited the vehicle and
walked toward the trooper, who by this time had gone back to his vehicle. The defendant stated that
before he reached the trooper, he was shot. The defendant admitted that he was unsure whether
Trooper Kilpatrick shot him; in fact, the defendant testified that if he had to guess, he believed
someone other than Trooper Kilpatrick shot him. After the defendant was shot, the defendant kept
walking toward the trooper. The defendant stated that when he and the trooper were face-to-face,
the trooper drew his weapon and the defendant drew his knife, which he kept on his person for
protection. The defendant admitted wrestling with the trooper and eventually gaining control over
the trooper’s weapon, but the defendant adamantly denied placing the gun between the trooper’s eyes
and pulling the trigger. Instead, the defendant stated that after grabbing the gun, he told Trooper
Kilpatrick “it’s over” without pointing the gun at the trooper.

       At the sentencing hearing, the state introduced evidence that the defendant had been
convicted in Colorado for assault on a police officer, and the defendant admitted to a conviction in
New York for weapons possession. The defendant also had a history of numerous traffic infractions.


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Trooper Kilpatrick testified that he was unable to pass a psychological exam required for him to
resume work. He noted that he no longer leaves his home unless necessary and does not enjoy
interacting with other persons. He also stated that the defendant’s actions had destroyed both his
professional and personal life. The trooper stated that he was taking fourteen different medications,
including high blood pressure medicine, pain relievers, and psychotropic medications. He claimed
that prior to the accident, he only took muscle relaxers and high blood pressure medication.

                                        STANDARD OF REVIEW

        An appellate court’s review of sentencing is de novo on the record with a presumption that
the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2003).2 As the
Sentencing Commission Comments to this section note, on appeal the burden is on the defendant
to show that the sentence is improper. If the trial court followed the statutory sentencing procedure,
made findings of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, this court may not disturb the sentence even if a different result were preferred. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        However, “the presumption of correctness which accompanies the trial court’s action is
conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). In this respect, for the purpose of meaningful appellate review,

        [T]he trial court must place on the record its reasons for arriving at the final
        sentencing decision, identify the mitigating and enhancement factors found, state the
        specific facts supporting each enhancement factor found, and articulate how the
        mitigating and enhancement factors have been evaluated and balanced in determining
        the sentence. Tenn. Code Ann. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

         Under the law as it existed before the 2005 amendment, unless enhancement factors were
present, the presumptive sentence to be imposed was the minimum in the range for a Class B felony.
Tenn. Code Ann. § 40-35-210(c) (2003). Tennessee’s pre-2005 sentencing act provided that,
procedurally, the trial court was to increase the sentence within the range based on the existence of
enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. Id. at
(d), (e). The weight to be afforded an existing factor was left to the trial court’s discretion so long
as it complied with the purposes and principles of the 1989 Sentencing Act and the court’s findings
were adequately supported by the record. Id. § 40-35-210 (2003), Sentencing Commission


        2
          W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-
102(6), -114, -210, -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are
inapplicable to the defendant’s appeal because the defendant chose to be sentenced according to the pre-2005 law.

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Comments; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see Ashby, 823 S.W.2d at 169.

        While the court can weigh the enhancement factors as it chooses, the court may only apply
the factors if they are “appropriate for the offense” and “not themselves essential elements of the
offense.” Tenn. Code Ann. § 40-35-114 (2003). These limitations exclude enhancement factors
“based on facts which are used to prove the offense” or “facts which establish the elements of the
offense charged.” Jones, 883 S.W.2d at 601. Our supreme court has stated that “[t]he purpose of
the limitations is to avoid enhancing the length of sentences based on factors the Legislature took
into consideration when establishing the range of punishment for the offense.” State v. Poole, 945
S.W.2d 93, 98 (Tenn. 1997); Jones, 883 S.W.2d at 601.

       In conducting its de novo review, the appellate court must consider (1) the evidence, if any,
received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of
sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the
criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at 168; Moss, 727 S.W.2d at 236-37.

                                            ANALYSIS

        At the defendant’s sentencing hearing, the trial court found the following enhancement
factors applicable to the defendant’s attempted second degree murder conviction:

      (1) The defendant has a previous history of criminal convictions or criminal behavior,
      in addition to those necessary to establish the appropriate range;
      (5) The defendant treated, or allowed a victim to be treated, with exceptional cruelty
      during the commission of the offense;
      (6) The personal injuries inflicted upon, or the amount of damage to property
      sustained by or taken from, the victim was particularly great; and
      (9) The defendant possessed or employed a firearm, explosive device, or other deadly
      weapon during the commission of the offense;

Tenn. Code Ann. § 40-35-114(1), (5), (6), and (9). Based on these enhancement factors and an
absence of mitigating factors, the court sentenced the defendant to the maximum sentence of twelve
years in prison.

        On appeal, the defendant contends that the court committed reversible error in applying
enhancement factors (5) and (6) to the defendant’s sentence. The defendant claims that the evidence
was insufficient to support application of the enhancement factors to the defendant’s sentence, and
the defendant argues that application of the enhancement factors was inappropriate in light of the
United States Supreme Court’s opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004). However, we conclude that the presence of the two enhancement factors which the
defendant does not challenge and the absence of mitigating factors are sufficient to affirm the twelve-


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year sentence imposed by the trial court. Therefore, we need not address the evidentiary or Blakely
issues raised by the defendant.

                           The Two Unchallenged Enhancement Factors

        As stated above, the defendant does not challenge the trial court’s application of enhancement
factors (1) and (9) to his sentence. The defendant’s failure to challenge these enhancement factors
serves as a waiver of the issue on appeal. See Tenn. R. App. P. 13(b). Regardless of the waiver, a
review of the record shows that the trial court properly applied the two enhancement factors to the
defendant’s sentence.

        At the sentencing hearing evidence was produced that the defendant had previously been
convicted of two criminal offenses. In 2000, the defendant was convicted in Colorado of third-
degree assault on a peace officer, a Class 1 misdemeanor under Colorado law. Colo. Rev. Stat. § 18-
3-204. A certified copy of this conviction was introduced into evidence. The defendant also
admitted to a 2003 conviction in New York of criminal possession of a weapon in the fourth degree,
a Class A misdemeanor. N.Y. Penal Law § 265.01. While the jury did not consider the evidence
of the defendant’s convictions, this fact is irrelevant because the United States Supreme Court has
exempted proof of a defendant’s prior convictions from the requirement that facts used to enhance
a defendant’s sentence be found by a jury beyond a reasonable doubt. Apprendi v. New Jersey, 530
U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000); see also Cunningham v. California, 127 S. Ct. 856,
868 (2007). Such convictions include those admitted by the defendant. Apprendi, 530 U.S. at 488.
Therefore, we conclude that the trial court properly applied the “previous criminal history”
enhancement factor to the defendant’s sentence.

        At trial and at the sentencing hearing, the defendant admitted that he possessed a knife during
his altercation with Trooper Kilpatrick. Because use or possession of a deadly weapon is not an
element of second degree murder, application of this enhancement factor was appropriate. See State
v. Raines, 882 S.W.2d 376, 385 (Tenn. Crim. App. 1994). The fact that the knife was explicitly
mentioned in the indictment does not affect application of the enhancement factor. See State v.
Henry Mitchell Dixon, No. E2002-00731-CCA-R3-CD, 2003 WL 22432415, at *9-*10 (Tenn. Crim.
App. at Knoxville, Oct. 22, 2003); State v. Reedar Junior Robbins, C.C.A. No. 6, 1991 WL 40531,
at *2 (Tenn. Crim. App. at Jackson, Mar. 27, 1991). Although the defendant did not admit to using
the knife during the altercation, this fact is irrelevant because “[a]s the statute clearly states, mere
possession of a [deadly weapon] during the commission of a felony will support application of this
factor. It is not necessary that the defendant actually use the weapon in committing the underlying
felony.” State v. Danny Avery Stewart, No. M2003-00664-CCA-R3-CD, 2004 WL 1161650, at *3
(Tenn. Crim. App. at Nashville, May 24, 2004); see also State v, Christopher Jerome Taylor, No.
W2002-01977-CCA-R3-CD, 2004 WL 350654 (Tenn. Crim. App. at Jackson, Feb. 25, 2004). The
defendant’s admissions, both at trial and at the sentencing hearing, that he possessed the knife at the
time of the offense were adequate proof of this enhancement factor. Blakely held that facts
“admitted by the defendant” could be used to enhance a defendant’s sentence. 542 U.S. at 303.
Several federal circuit courts have held that such facts include not only those admitted by the


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defendant in a guilty plea, but also those admitted at trial or at a sentencing hearing. See United
States v. Holmes, 406 F.3d 337, 364 (5th Cir. 2005) (facts admitted at trial); United States v. Ryder,
414 F.3d 908, 918 (8th Cir. 2005) (facts admitted at trial and at sentencing hearing); United States
v. White, 416 F.3d 1313, 1318 (11th Cir. 2005) (facts admitted at sentencing hearing). Therefore,
we conclude that the trial court properly applied this enhancement factor to the defendant’s sentence.

                            Mitigating Factors and Length of Sentence

        We have previously held that “[t]he mere number of existing enhancement factors is not
relevant—the important consideration [is] the weight to be given each factor in light of its relevance
to the defendant’s personal circumstances and background and the circumstances surrounding his
criminal conduct.” State v. Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995) (citing Moss, 727
S.W.2d at 238). In this case, we agree with the trial court that no mitigating factors were present.
We conclude that the lack of mitigating factors and the presence of the two undisputed enhancement
factors support affirming the trial court’s imposed sentence of twelve years.

                                          CONCLUSION

       For the reasons stated above, the judgment of the trial court is affirmed.



                                                              _______________________________
                                                              D. KELLY THOMAS, JR., JUDGE




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