        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 8, 2013

             STATE OF TENNESSEE v. DANIEL ADAM BARNES

                 Appeal from the Circuit Court for Cheatham County
                         No. 16551    George Sexton, Judge


               No. M2013-00202-CCA-R3-CD - Filed December 3, 2013


The defendant, Daniel Adam Barnes, appeals from his Cheatham County Circuit Court bench
conviction of Class A misdemeanor assault. On appeal, the defendant claims that his 11-
month, 29-day sentence, all but 10 days of which was suspended, was erroneously imposed
because he was not given the opportunity to be heard before the sentence was imposed. We
affirm the judgment of the trial court.

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

J AMES C URWOOD W ITT, J R. J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.

William Bradley Lockert, III, District Public Defender; and Steve Stack, Assistant Public
Defender, for the appellant, Daniel Adam Barnes.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Dan Mitchum Alsobrooks, District Attorney General; and Brooke Orgain, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              The defendant’s assault conviction arose from events that occurred on or near
the Cheatham County Courthouse square on August 28, 2011. The defendant had been
formerly married to Chelsea Barnes, and the union produced a daughter who was two years
of age in August 2011. The victim is the father of Chelsea Barnes and the grandfather of the
Barnes’s child. Pursuant to civil proceedings, the parties effected the visitation exchange of
the child by meeting at the courthouse where, typically, Chelsea Barnes would arrange for
the exchange to be observed by an Ashland City police officer.
               On August 28, 2011, the parties arrived at the courthouse for the defendant to
return the child to Ms. Barnes. No police officer was in observance, but the victim along
with some of his friends with whom he had been riding motorcycles that day attended the
exchange.

               The victim testified that when the defendant made a disparaging remark about
Ms. Barnes, the victim said the remark was “cute,” a comment that prompted the defendant
to try to “headbutt” the victim. The victim said that when this failed, the defendant spat in
the victim’s face. The victim said that when he bowed his chest and tried to insert himself
between the defendant and the females, the defendant hit him over the left eye with his fist.
The blow caused a cut which was depicted in photographs introduced into evidence.

              The defendant testified that the victim was the initial aggressor. He said that
the victim chest-bumped the defendant, backing him up a car length, before grabbing the
defendant’s throat with his hands. The defendant testified that he then swung at the victim
in self-defense.

              The victim’s version of the event was generally corroborated through the
testimonies of Ms. Barnes and a bystander and, apparently, a video recording of the event
that was played for the trial court but was not included in the record on appeal.

               Following the arguments of counsel, the trial court announced its finding that
the defendant’s testimony was contrary to the weight of the evidence. The court then said,
“I find beyond a reasonable doubt that he’s guilty of assault, sentenced to 11/29 to be
suspended after ten days, $50 fine and costs, must complete anger management class.” The
State asked for a “no-contact” provision, and when the defense announced no objection, the
court agreed to the provision. The court acceded to the suggestion of the defendant in fixing
a date for the defendant’s appearance to serve the 10 days. The trial court asked whether
anything else was to be done, and defense counsel responded, “I think that’s it.” The
proceedings in the trial court ended.

              On appeal, the defendant claims that the trial court erred by denying him an
opportunity to be heard before the pronouncement of sentence. He relies upon Tennessee
Code Annotated section 40-35-302(a), which provides:

              In imposing a sentence for a misdemeanor, the court may
              conduct a separate sentencing hearing. If the court does not
              conduct a separate sentencing hearing, the court shall allow the
              parties a reasonable opportunity to be heard on the question of
              the length of any sentence and the manner in which the sentence

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               is to be served.

The State counters that the trial court heard the defendant’s version of the event and its
background during the bench trial and that, in any event, the defendant made no request to
be heard further prior to sentencing.

             In State v. Richard E. Nelson, No. 01C01-9601-CR-00034 (Tenn. Crim. App.,
Nashville, Sept. 18, 1997), this court reviewed a similarly-handled case of misdemeanor
sentencing. A jury convicted Nelson, and

               [a]fter the jury was discharged, the trial court immediately
               sentenced the appellant. Neither the appellant nor the State
               attempted to make any statements or offer any additional
               evidence prior to sentencing. Further, the appellant made no
               objection to the trial court’s immediate sentencing. However,
               after the trial court pronounced its sentence, counsel for the
               appellant requested that his client be permitted to get treatment.
               The trial court denied that request.

Id., slip op. at 3. This court noted that “[t]he record does not reflect that the trial court denied
the appellant th[e] opportunity” to be heard pursuant to Code section 40-35-302(a). We said
that “[n]either appellant, nor his counsel, expressed a desire to be heard prior to sentencing”
and that “[p]rior to sentencing, the appellant neither requested to be heard nor objected to
being sentenced without being heard. By failing to contemporaneously object, the appellant
has waived consideration of this issue on appeal.” Id. (citing State v. Killebrew, 760 S.W.2d
228, 235 (Tenn. Crim. App. 1988); Tenn. R. App. P. 36(a)).

               We believe the reasoning in Richard E. Nelson is apt for adjudicating the
present case, and we hold that, even if the defendant was not availed a reasonable opportunity
to be heard “on the question of the length of any sentence and the manner in which the
sentence is to be served,” his failure to contemporaneously object to the procedure worked
as a waiver of the issue. A waiver in this circumstance is predicated upon basic principles
of appellate review that are embodied in Tennessee Rule of Appellate Procedure 36(a):
“[R]elief may not be granted in contravention of the province of the trier of fact,” and the
rules of review do not require that relief be granted “to a party . . . who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an error.”
See Tenn. R. App. P. 36(a).

               Accordingly, the judgment of the trial court is affirmed.



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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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