             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     Assigned on Briefs May 11, 2005

             STATE OF TENNESSEE v. DWAYNE TYRONE SIMMONS

                      Direct Appeal from the Circuit Court for Marshall County
                                  No. 15813 Charles Lee, Judge



                         No. M2004-01105-CCA-R3-CD - Filed August 10, 2005


A Marshall County Circuit Court jury convicted the appellant, Dwayne Tyrone Simmons, of
aggravated burglary and theft of property valued less than $500. The trial court sentenced the
appellant to concurrent sentences of eight years, ten months for the aggravated burglary conviction
and nine months, eighteen days for the theft conviction. In this appeal, the appellant raises various
issues, including that the evidence is insufficient to support his aggravated burglary conviction and
that he was unable to present photographs of the home in question to the jury. Upon review of the
record and the parties’ briefs, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT
W. WEDEMEYER , JJ., joined.

Dwayne Tyrone Simmons, Pro se.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                       OPINION

                                              I. Factual Background

       The appellant represented himself at trial.1 Jimmy C. Callahan testified that on August 19,
2003, he was at home and saw the appellant at the unoccupied house next door. The appellant was
carrying items out of the house and putting them in his car. Mr. Callahan walked over to the


         1
            Before trial, the trial court ordered that the appellant be evaluated to determine whether he was competent to
stand trial. The evaluation is not included in the record on appeal; however, the trial court later entered an order allowing
the appellant to represent himself.
appellant and told the appellant that Frank Wells owned the house. Mr. Callahan then returned to
his own home and asked his wife to telephone Rita Holoman, Frank Wells’ sister. Ms. Holoman
asked that Mr. Callahan return to the house to see what the appellant was doing. Mr. Callahan
walked back to the house and asked the appellant what he was doing there. The appellant told Mr.
Callahan that he was thinking about buying the property. Mr. Callahan then had his wife telephone
the police.

         Officer Scott Braden of the Lewisburg Police Department testified at trial that on August 19,
2003, he was dispatched to 1781 Nashville Highway to investigate a report of a suspicious person
and a suspicious vehicle. He arrived at the location about 7:00 p.m., and it was still light outside.
Officer Braden saw the appellant’s station wagon in the driveway and saw the appellant walking
from the house. The front door of the house was open, and Officer Braden asked the appellant what
he was doing. The appellant told the officer that he was interested in buying the house and was
“checking it out.” Officer Braden asked the appellant if the appellant knew the owner of the house,
and the appellant stated that the house belonged to Frank Wells. Officer Braden then asked the
appellant if he had taken anything from the house, and the appellant replied that he had taken some
pots, pans, and candleholders. The appellant told the officer that he knew Mr. Wells and that he had
thought it would be all right for him to take the items from the home. Officer Braden saw the items
in the front passenger seat of the appellant’s station wagon and told the appellant to take the items
back into the house. Officer Braden also saw an old cash register in the back of the appellant’s
station wagon. According to the appellant, he had bought the cash register earlier that day in Pulaski.

        Officer Braden spoke with dispatch and requested that the owner of the house be contacted
regarding a description of the items in the house. Dispatch related to Officer Braden that an old cash
register had been in the home. Officer Braden then arrested the appellant, and the appellant later
admitted that he did not know Mr. Wells. After arresting the appellant, Officer Braden inspected the
front door of the house and saw that the door frame had been damaged. He also went into the house
and saw end tables and chairs in the living room and a bed in the upstairs bedroom. On cross-
examination, Officer Braden testified that he did not see the appellant take any items out of the house
and never saw the appellant go into the home. He stated that the house was habitable.

        Frank Wells testified that he owned the property at 1781 Nashville Highway and that the
house had been used as a rental property since 1995. He acknowledged that on August 19, 2003, the
home was for sale or rent. He stated that a couch and chair were in the living room and that a bed
was in the upstairs bedroom. He stated that at the time of the burglary, no one was living in the
house but that he had checked on the home in early August and all of the doors were locked at that
time and the front door frame was not damaged. He said that he did not know the appellant, that he
did not give the appellant permission to go into the house, and that the items the appellant took from
the house were worth less than $500. On cross-examination, Mr. Wells testified that the house had
been vacant for a few months but that a family had rented the house until a few months before the
burglary.




                                                 -2-
        Sergeant Matt Owens of the Lewisburg Police Department testified that he went to 1781
Nashville Highway on August 19. When he arrived, Officer Braden was present and talking with
the appellant. Sergeant Owens saw a cash register in the appellant’s station wagon and a deep fryer,
a candleholder, and cooking utensils in the car’s front passenger seat. Sergeant Owens heard Officer
Braden ask the appellant what he was doing there and if the appellant knew the owner of the home.
According to the appellant, he had been thinking about buying the house and “was checking things
out to see what needed to be repaired.” The appellant also told Officer Braden that Frank Wells
owned the house and that the appellant did not think Mr. Wells would mind if the appellant took
items from the house. Initially, the appellant said that he had bought the cash register in Pulaski.
However, the appellant later admitted that he had taken the cash register from the house.

        Jonathan Rashad Hightower testified for the appellant that he was familiar with the house at
1781 Nashville Highway and that no one had lived in the house for about two years. When asked
if the home was in good condition, he stated, “Not really to live in.” On cross-examination, Mr.
Hightower admitted that he resided in the Marshall County jail and had been convicted recently of
aggravated robbery, burglary, attempted burglary, and failure to appear. The jury convicted the
appellant of aggravated burglary, a Class C felony, and theft of property valued less than $500, a
Class A misdemeanor. The trial court sentenced the appellant as a Range II offender to concurrent
sentences of eight years, ten months for the aggravated burglary conviction and nine months,
eighteen days for the theft conviction.

        In his brief, the appellant lists the following three issues in his statement of the issues
presented for review: (1) that he should have received a full mental evaluation before trial; (2) that
he was not allowed to show pictures of the home in question to the jury; and (3) that Officer Braden
illegally searched his car. In the appellant’s statement of facts, he appears to raise many more issues,
including that the evidence is insufficient to support his aggravated burglary conviction because the
State failed to show that the house is a “habitation.” However, the only issue included in the
appellant’s motion for new trial is the issue regarding his not being allowed to present photographs
to the jury. Therefore, we will address that issue. We will also address the issue regarding the
sufficiency of the evidence because it does not need to be raised in a motion for new trial in order
to secure appellate review. See State v. Boxley, 76 S.W.3d 381, 389-90 (Tenn. Crim. App. 2001).
However, because the appellant failed to raise the remaining issues in his motion for new trial, these
issues are waived. See Tenn. R. App. P. 3(e).

                                             II. Analysis

                                   A. Sufficiency of the Evidence

        When an appellant challenges the sufficiency of the convicting evidence, the standard for
review is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P.
13(e). On appeal, the State is entitled to the strongest legitimate view of the evidence and all


                                                  -3-
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value
to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the
jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh
or reevaluate the evidence. Id. Because a jury conviction removes the presumption of innocence
with which a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a
convicted defendant has the burden of demonstrating to this court that the evidence is insufficient.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Aggravated burglary occurs when a person enters a habitation without the consent of the
property owner “and commits or attempts to commit a felony, theft or assault.” Tenn. Code Ann.
§§ 39-14-402(a)(3), -403(a). A “habitation” is “any structure, including buildings, module units,
mobile homes, trailers, and tents which is designed or adapted for the overnight accommodation of
persons.” A structure does not have to be currently occupied in order to be a habitation. See State
v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999).

       Taken in the light most favorable to the state, we conclude that the evidence is sufficient to
support the appellant’s conviction for aggravated burglary. The appellant argues that because the
house was in disarray and in need of structural repairs, it ceased to be a habitation. However, Officer
Braden testified that the house was habitable. Moreover, Frank Wells testified that the house had
served as a rental home since 1995 and that a family had lived in the house up until a few months
before the burglary. According to the definition of a habitation, the house only needed to be
designed or adapted for the overnight accommodation of persons. The structure in question met the
applicable statutory definition of “habitation,” and the appellant was properly convicted of
aggravated burglary.

                                   B. Admissibility of Photographs

         Next, the appellant claims that he was unable to present photographs of the home to the jury
to show that the house in question was not a habitation. We hold that the appellant is not entitled
to relief on this issue.

        The record reflects that on the morning of trial, before the State called its first witness, the
appellant told the trial court that he needed his wife to testify on his behalf. The trial court stated that
it would issue an instanter subpoena and would attempt to have her served immediately. Before the
State rested its case-in-chief, the following exchange occurred:

                        THE COURT: I am informed by the clerk’s office that the
                defendant’s wife, who we are attempting to -- whose subpoena has
                been issued, has contacted the clerk’s office and said that her mother
                has passed away yesterday and she would not be here.




                                                    -4-
                          So my question for Mr. Simmons is: Do you want me to
                  direct this subpoena to be served and that she be forced to be here,
                  Mr. Simmons?

                            MR. SIMMONS: I think not.

                            THE COURT: Pardon me?

                            MR. SIMMONS: I think not, Your Honor.

                         THE COURT: Are you requesting that the instanter subpoena
                  which you have requested for your wife be withdrawn?

                          MR. SIMMONS: There are certain items in her possession
                  that I need, and those are photographs of the place.

The trial court then offered to let the appellant telephone his wife. However, the appellant was
unable to contact her.

        The appellant contends that his wife had important photographs of the house in question and
that he was unable to present those photographs to the jury. However, the appellant did not request
a continuance in order to secure the presence of the witness. Therefore, we hold that the appellant
has waived this issue. See Tenn. R. App. P. 36(a).

                                                  III. Conclusion

        Based upon the foregoing and the record as a whole, we affirm the judgments of conviction
for aggravated burglary and theft.2



                                                                 ___________________________________
                                                                 NORMA McGEE OGLE, JUDGE




         2
            W e note that there are three indictments in the record, one for aggravated burglary and two for misdemeanor
theft. There are also three corresponding judgments of conviction in the record. According to the judgment forms for
the thefts, the appellant was convicted of two counts of misdemeanor theft and the second count was merged into the first.
However, the jury’s verdict forms and the trial transcript indicate that the appellant was convicted of only one count of
aggravated burglary and one count of misdemeanor theft. Nevertheless, we cannot discern from the record the
disposition of the second theft indictment.

                                                           -5-
