1 The ap pellant is also kn own as “T erry Wa yne Battle.”



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE February 2000 S ession

STATE OF TENNESSEE v. TERRY EUGENE BALLARD

Appeal from the Circuit Court for Williamson County No. II-1196-344-B Donald P. Harris, Judge

No. M1998-00201-CCA-R3-CD - Filed September 22, 2000

The appellant,Terry Eugene Ballard, 1 was convicted in the Williamson County Circuit Court of theft of property worth one

thousand dollars ($1,000) or more, a class D felony. The trial court sentenced the appellant as a career offender to twelve y ears incarceration

in the Tennessee Department of Correction. I

n this appeal, the p

etitioner presen

ts the following issues for our review: (1) whether the trial court erroneously denied his e x parte motion for the appointment of an independent psychological

expert at the state’s expense; and (2) whether the evidence ad

duced at trial sup

ports his conviction of thef

t. Following a re

view of the reco

rd and the partie

s’ brie fs, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES AND J ERRY L. S MITH , JJ., joined.

Peter D. Heil, Nashville, Tennessee, and Trippe Fried, Franklin, Tennessee, for the appellant, Terry Eugene Ballard.

Paul G. Summers, Attorney General and Reporter, David H. Findley , AssistantAttorney Ge

neral, and Jeff Burks, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION The appellant appeals his conviction in the Williamson County Circuit Court of theft of propert

y worth one t

housand dollars ($ 1,000) or more. Th e appellant’s co

nviction arose from his theft of a Hewlett Packard computer from Computer City in Brentwood, Tennesse e, on October 7, 1996. In this appeal, the appellant challenges both the trial court’s denial of his e x parte motion for a state-funded psychological expert and the sufficie ncy of the evidence underlying his conviction of theft. A review of the procedura l history of the appellant’s case and the facts adduced at his trial is essential to the resolution of these issues.-2- I. Background On November 12, 1996, a Williamson County Grand Jury indicted the appellant for the theft of a computer from Computer City. On March 3, 1997, the appellant filed a notice of

his intentto rely

upon the defense of insan ity or a cla

im of diminished cap

acity. I n conjunction with h

is notice, the appellant filed a motion requesting a mental evaluation for purposes of determining his competency

to stand trial and h

is mental state

at the time of his offense. The appellant noted in his motion that

he had previously been

diagnosed with Post-Traumatic Stress Disorder and also noted that h e was unable to provide any information to his attorney conc erning the charged offense. Pursuant to the appellant’s motion, the court ordered th e Middle Tennesse

e Mental Health I

nstitute to evaluate the a

ppellant.

Dr. Rok eya F arooque, a psy chiatrist with the M

iddle Tennessee

Mental Health Institute, examined the appellant on J uly 15, 1997. According to Dr. Farooque, the appellant reported that he has experienced “black-outs” or fainting spells since the age of f ive or six. The appellant recalled that he wa s examined by doctors at Metropolitan Nashville General Hospital when he was a child, but the doctors were unable to determine the cause of the “black-outs.” The appellant also reported that,

in t he ea rly 1 990 s, h e was sta bbe d by a fellow inmate while incarcerated in prison and was subsequently

diagnosed wit

h and trea ted for Post-Traumatic Stress Disorder. Moreover, approximately

one month before the instant offense, the appellant and a friend were involved in a shooting in Washington, D.C . The app ellant attributed his current sy

mptoms of Post-Trau

matic Stress Disorder to this shoo ting. Accor ding to the appellant, his primary symptom was rec urring nightmares about being stab bed or shot. The appellant further asserted that he possessed no memory of the time period extending from his visit to Washington, D.C., until a meeting with his attorney in this case several months later. Accor din gly, the a

ppellant claimed t

hat he could not re

call committing the instant off ense on October 7 , 1996. Similarly , although the ap

pellant was also charged withstealing computer equipment from a Sears Department Store on November 20, 1996, while released on bond in this case, he could not recall committing the theft.

In recording his d

iagnostic impre

ssions, Dr. Faroo

que noted, “Rule out Post Traumatic

Stress Disorder.” More significantly, Dr. Farooque opined tha t the appellant’s “behavior and comments did

not raise the ques

tion of a present psychosis or other serious thought disorder.” As to the appellant’s claimed memory loss, Dr. Farooque observed that

ther e is no psychiatric justification for this loss nor does it form the basis for a defense of insanity. From the information tha t has bee n supplied Forensic Servic es, it appears Mr. Bal lard continued to function in an acceptable and ap pr opriate manner when he returned to Tennessee fr

om Washington, D.C. Dr. Farooque conc

luded that a defe

nse of insanity

was n ot viable in t he appellant’s case, and the appellant was co

mpetent to stand tri

al.

Sub seq uen tly, the appellant file d a sealed, ex par

te motion pursuant to State v. Barnett
, 909 S.W.2d 423 (Tenn. 1995), and Tenn. Su

p. Ct. R. 13 §5 , requesting state funds to employ2 Although the appellant o riginally filed these re cords und er seal, the State f iled a motion t

o this court

to unseal the records for purposes of this appeal. Because the appellant did not oppose the State’s motion, we granted the motion.

-3- an independent psychological expert, and he also filed a motion requesting an ex parte hearing on this issue. The court

denied the appellant’s motions. However, the trial court granted the appellant’s motions to permit the wi thdrawal of his cu rrent counsel an

d for the appointme

nt of new counsel. Represented

by new coun

sel, the appellan

t again filed a n

otice of intent to r

ely upon the

defense of insanity and also requested a second mental evaluation. On February 10, 1 998, pursuant to the appellant’s request, the trial court ordered amental evaluation of the appellant by the Guidance Center in Franklin, Tennessee. The record before this court does not contain the results of any evaluation con duc ted by th at o rgan iza tio n. In any e vent, on February 18, 1998, the cour

t also ordered the Middle Tennes see Mental Healt h Institute to again examine the appellant. The institute examined the appellant on March 31, 1998, and again concluded that a defense of insanity wa s not viable in the appellant’s case, that the appellant was co

mpetent to

stand trial, and that the appellant did not meet the criteria for judicial commitment to a mental health institute.

On May 19, 1998, notwithstanding the trial court’s earlier denial of the appellant’s

ex parte motion, the court conducted an ex parte hearing concerning the appellant’s request for funds
to employ an independent psychologic al expert. At the ex parte hearing, the appellant contended that he required a psy

chological expe

rt in order to

presenta claim of diminishe d capacity

due to PostTraumatic

Stress Disorder or, alternatively, to present a defense of “involuntary intoxication.” More specifically, the appellant’s trial counsel related to the trial court that he had

sp oke[n] to . . . [the appellant’s] mother. She said that . . . the impression she left me was tha t he was pretty

much incoherent from the time of the shooting incident in 1996 in Washington, D.C. , up to the end of that y

ear including th

e time we’re talk

ing about in this case. She may be here . . . . The appellant’s mother did not testify at the ex parte hearing. However, the appellant did introduce numerous mental health and other medical records for the court’s consideration.

The records submittedat the ex parte hearing 2 reflect that, at the time of the instant offense, the appellant was forty-three y ears old and married with five children. He p osse sses a General Educational Development (“GED”) diploma and, when not incarcerated pursuant to a criminal conviction, has been empl oyed laying carpeting and as a cook. The appellant’s criminal history is extensive and, co

nsistent with his cri

min al hi story, the appellant has been the object of several violent a

ssaults during his lifetime. Most notably, the appellant suffered a gunshot wound
to the face as a teenager and was stabbed by a fellow

inmate in prison in 1991. Following the 1991 stabbing, the appellant fi rs t began to experie nce symptoms

consistent with Post-

Traumatic Stress Disorder, includ ing insomnia, recurrent nightmares, “fearfulness,” “int ense anxiety,” hypervigilance
, and “increased sta

rtleresponse to

unfamiliar inmate

s.” The appellan

t also exhibited some “

paranoid ideation,” expressing a fear of additional attacks. For example, while incarcerated in prison in 1992 and 1993, the appellant reported that he felt at times that someone might be attempting to enter his-4-

cello r might be hid

ing inside his cell. For treatment of these symptoms, the appellant was administered antidepressants, including Elavil and Trazodone.

In 1996, the appellant was released from prison on parole, and his mental condition seemingly improved. Thus, in April 1996, the appellant reported to the Dede WallaceCenter that he was no longer

experiencing symptoms of Post-Traumatic Stress Disorder and no longer required medication. How ever , as not ed p revi ous ly, the appellant was involved in a shooting in Washington, D.C.
, in September 1996, one month prior to the instant offense. This incident precipitated additional nightmares.

Notwithstanding a diagnosis of Pos t-Traumatic Stre

ss Dis order , the appellant’s mental health records consistently indicate the absence of any psychosis or significant thought disorder until Septemb er 1997, almost one year after the instant offense. I ndeed, following the appellant’s reentry into the Tennessee Department of Correction in

late 1996, he did not report any compla ints ot her than recurrent nightmares. Specifically, at no time did the appe llant report any delusions or auditory or visual hallucinations, nor did the appellant mention any memory

loss. Moreover, following a psychiatric intake examination of the appellant in January 1997, the Department’s psychiatrist and psychological e xaminer concluded that the appellant “has no clinical evidence of psychosis or major affective disorder. No indication for psychotropic medication.”

In March1997, the appellant was transported to Washington, D.C., in order to testify in court proceedings, possibly concerning the shooting that had occurred in September 1996. At the Central Detention Facility in Washington, D.C., the appellant again underwent a psy chological

exam ination. Although the app ellant was provisi

onally diag

nosed with Post-Tra

umatic Stress Disorder a nd prescribe d Elavil, the examiner noted that the appellant was oriented to time, place, person, and situation and that the appellant denied any pro ble ms with his thought content and processother than, perh aps, impaired con

centration. Ag

ain, the appellan

t did not r

epor t any delusions or auditory or visual hallucinations, nor did the appellant mention any memory loss. The examiner conclude

d that there was n

o abnormality

in the appellant’ s thought proces s.
According to the appellant’s mental health rec or ds, the appellant f irst reported his memory loss to amental health

professional, as opposed to his attorney, in June 1997. In September 1997, the appellant first reported auditory and visual hallucinations to his psychological counselor
at the Tennessee Department of Correction. Soon thereafter, psyc hological testing performed by the Department sug

gested for the f

irst time the presence of a thought disorder and . . . poorly deve l oped personality

structure with few interna l resources to util ize in responding to his environment. He tends to bec om e easily overwhelmed

and , d uring those times , his thought proc esses will become distorted and he will have difficulty managing his behavior. He also appear s to lack empathy and harbors hostile and aggressive impulses. There w

ere signs sugg

esting organi

c impairment.-5-

T he appellant’s psychological counselor noted that the appellant appear ed to be slowly “unrave

ling. ” However, a subseq uent n otation in the appellant’s “Problem Oriented - Progress Record” at the Department also c

oncedes the possi

bility that the

appellant might b

e feigning illn

ess.

After reviewing t he above medical records, the trial court once again denied the app ell ant’s motion for a state-funded psychological expert. I n denying the motion, the trial court emphasized the psychiatric intake evaluation performed by the Tennessee Department of Correction following the instant offense. The court also noted that the results of two psychological examinations by the Middle Tennessee M ental Health Ins titute failed to sup port the appellan

t’s claim that, at the time of the ins tant o ffense, he was suffering from any menta l disease or defect that precluded his formation of

the r equisite mental state. Finally, the court noted that the facts of the instantcase, as set forth during a preliminary hearing on a motion to suppress, did not suggest any diminished capacity. The trial court also took judicial notice of the appellant’s recent conviction of the the ft of comp uter equipment from a Sears Department Store while on bond for the instant offense. He noted that the f acts of the Sears

Department Store

case were almost ident

ical to the facts of the instant case a

nd, similarly, did not suggest any diminished capacity. I ndeed, on the con tra ry, the facts of both c

ases suggeste

d planning by

the appellant.

Immediately

following the ex parte hearing and the denial of the appellant’s motion for an independent psychological expert, the trial court conducted a benc h trial of the appellant. At the appellant’s trial, Robin Lynch, the genera l manager of Computer City, testified that he observed the appellant enter the store on October 7, 1 996, and approach a display containing several computers packaged in bo xes. The appellant

picked up one of th

e boxes, placed the

box on his shoulder, and carried the box outside the store to a van waiting in the pa

rking lot. Accor

ding to Mr. Lynch,the boxed computer was a He wlett Packard computer worth approximately $2,899. The appellant did not pay for the computer and did not have permission to remove the computer from the
store.

Mr. Lynch a lso recounted that he chased the appellant outside the store to the waiting

van. As he approached the van, Mr. Lync h observed that the van’s rear sliding door was ajar, and the boxed computer was lying in the rear compa

rtment. Three ind

ividuals, including the ap

pellant, were also inside the van. Mr. Lynch demanded that the appellant return the computer, whereupon the appellant and his companions closed the van door and drove away. Mr. L ynch recorded

the van’s license plate number, returned inside the store, and telephoned the Brentwood Police Departmen

t.

Approximately thirt y-five minutes following the theft, the police app rehended the van containing the appellant and his two companions.

The police transported Mr. Lynch to the scene of the suspects’ arrests where Mr. Lync h identified t he appellant as the man who had stolen the computer from Computer

City. Mr. Lynch a

lso identified the computer, which was still packaged in its box. At trial, Mr. Lynch again identified the appellant and identified a photograph of the boxed computer, testifying that he was present when the police photographed th

e computer. Acc

ording to Mr. Lynch, the police returned the stolen computer to his store soon ther eafter.-6- At trial, the State also presented the testimony of James Edward Gibson and David Dickson, officers with the Franklin Police Department. Officer Gibson testified that, on the afternoonof October 7, 1996, he stopped the appellant’s van pursuant to a “BOLO” or “be on the lookout.” The appellant wa s driv ing the v an, and there were two passengers. Upon inquiry, the appellant informed Office

r Gibson that he wa

s returning home

from a friend’s house. However, the appellant was unable to provide the name or address of his friend. Moreover, Officer Dickson, who

was assisting Officer Gibson, observed a com puter box th

rough the rear window of the van. Acco rdi ngly, the officers arrested the appellant and his companions. Mr. Lynch arrived at the sce ne soon thereafter and identified both the appellant and the stolen computer.

Officer Gibson confirmed

that the boxed comp

uter was removed from the appellant’s

van and phot ographed at the scene of the suspects’ arrests. However, neither Of ficer Gibson nor Officer Dickson could recall who removed the computer from the appellant’s van , nor could they recall who photographed the computer. Officer Gibson identified the photogr aph of the boxed computer, noting that, in the photograph, a dry magic marker bo ard had been p laced beside the computer and was marked with the number assigned to the appellant’s case.

Fin all y, the appellant tes

tified on his own be

half at trial, evidently having recovered from his memory loss. He asserted that one of his companions on the day of the theft, a woman named“Bay-Bay

,” removed the boxed computer from Computer City

. According to th

e appellant, he believed at the tim

e of the theft tha

t sh e was collect ing empty boxes because she was in the processof moving out of her current residence. The appellant co nceded that,

when the manager of Computer City chased

his friend into the parking lot, he k new that she had ta

ken more than an e

mpty box. Nevertheless, h

e drove the van ou

t of the parking l

ot. The appell

ant admitted that he had prev iou sly b een c onv ict ed o f ro bbe ry and att emp ted gran d la rcen y.

Following the parties’ presentation of proof, the trial court found the appellant gu

ilty of the charged theft. The court conducted a sentencing hearing on July 17, 1998. At

the conclusion of the hearing, the court sentenced the appellant as a career offender to twelve yea rs incarceration in the Tennessee Department of Correction.

II. Analysis

a. Th e Tri al Court’s Denial of the Appellant’s Ex Parte Motion for a State-Funded Psychological Expert The appellant

first contends that the trial court erroneously denied his ex parte motion for the appointment of

an independent psychological expert at the state’s expense. In Barnett , 909 S.W.2d at 431, our sup

reme court held t

hat, when a defendant in

a non-capital ca

se demonstrates to the trial court in an ex parte proceeding that his sanity at the time of the offense is
to be a significan

t factor at trial,

the federal con

stitution, at a minimum, requires the State to provide the defendant access to a competent,independent psychiatrist who will conduct

an appropriate-7- examination and assist in

evaluation, preparation, and presentation of the defense. The burden is u

pon a criminal defendant to demonstrate a “particularized need” for expert assistance, i.e., the defendant mus

t demonstrate by

reference to t

he facts and cir

cumstances of his

particular case that expert assistance is necessary to protect his right to a fair trial. Id. A trial court shoul d, inturn, consider “all facts and circumstances kno wn to it at the time the motion for expert assista

nce is made” in determining whether a defendant has satisfied his burden. Id. See also Tenn. Sup. Ct. R. 13 § 5.

In challenging the trial court’s application of Barnett and Tenn. Sup. Ct. R. 13 § 5 in this case, the appellant argues that the trial court improperly relied upon evidence outside the record. Spe cif ica lly, he notes that the tr ial court denied h

is motion for a psy

chological expe

rt based, in part, upon knowledge obtained by the court when it presided over the appellant’s conv

iction of theft in

a different case. The appellant concludes that, by requiring a trial cour

t to consider “a ll facts and circumstances known to it ” in decidi ng a motion for expert assistance, our supreme court in Barnett didnot intend to vitiate the gene ral r ule that “a judge is not permitted to make an investigation of

a case, even an

inadvertent one, off the record, and then base a holding on the information obtained

. . . .” State v. Hart , 911 S.W.2d 371, 375-377 (Tenn. Crim. App. 1995). See also Vaughn v. Shelby Williams of Tennessee
, 813 S.W.2d 132, 133-13 4 (Tenn. 1991); State v. Miller , No. 02C01-9708- CC-00300, 1998 WL 902592, at *5 (Tenn. Crim. App. at Jackson, December 29, 1998).

The State responds that the appellan t has waived his co

mplaint by fa

iling to object
at the ex parte hearing

to the trial court’ s consideration of the facts underlying his prior conviction. Moreover, the State cites this court’s opinion in State v. Harvest , 967 S.W.2d 829, 832-833 (Tenn. Crim. App. 1997), in which we approved a trial court’s consideration under Barnett

of knowledge obtained by the court when it sat in judgment of the defendant in a differe nt case.

We simply

conclude that,

even assuming that the appellant’s interpretation of Barnett is correct, the facts considered by the trial court in the instant case and in Harvest

were arguab l y subject to judicial notice under Tenn. R. Evid. 201. Prior proceedings and judgments in the sa

me court are general

ly subject to

judicial notice as they “are capable of accurate and ready de termination by resort to sources whose accuracy cannot re asonabl y be questi

oned.” Id. at (b)(2). See N EIL P. C OHEN , ET AL ., T ENNESSEE L AW OF E VIDENCE § 201.3, at 43 (Michie ed., 3d ed. 1995)(public and
court records can be the subject of judicial notice); see also State v. Nunley
, No. 01C01-9809-CC00395, 1999 WL 482408, at *5 (Tenn. C rim. App. at Nashville, July 9, 1999), perm. to appeal denied , (Tenn. 2000)(“[c]ourt records fall within the general rubric of facts readily a nd accurately determined”); State v. Head , No. 01C01-9806-CC-00263, 1999 WL 343910, at **5-6 (Tenn. Crim. App. at Nashville, June 1, 1999)(“[t]o be sure, the trial court was allowed to take judicial notice of its court records) . Under Tenn. R. Ev id. 201(e), it was

incumbent upon the

appellant to contemporaneou

sly challenge the

court’s judicial notice of the prior proceedings. In the absence of

a contempora neous chall enge, the not iced facts ar e taken as gi ven for purpos es of both trial and appellate proceedings. Nunley , No. 01C01- 9809-CC-003 95, 1999 WL 482408, at **4-5. See generally Tenn. R. App. P. 36(a).-8- The appellant additionally asserts that, under Barnett , 909 S. W.2d at 4 23 , he ad equate ly

demonstrated a “particularized need” for a psycholog ical expert. Specifically, the appellant notes that his mental health records contain evidence which tends to disprove the mental
state required for the commission of a theft. Statev. Hall , 958 S.W.2d 679, 689 (Tenn. 1997). The State again disa

grees.

This court appli es an abuse o f discretio n standard i n reviewing a trial court’s ruling

on the necessity for expert assistance. Ruff v. State , 978 S.W.2d 95, 101 (Tenn. 1 998); S tate v. Vallejo
, No. W1998-00500-CCA-R3-CD, 1999 WL 1532153, at *2 (Tenn. Crim. App. at Jackson, December

17, 1999). “An abuse of discretion standard contemplates us giving the trial court the benefit of its decision as long as that decision is sup por ted by ma ter ial evi den ce an d is not arbi tra ry, capricious or illegal.” State v. Bordis , No. 01C01-9211-CR-00358, 1994 WL 672595, at *18 (Tenn. Crim. App. at Nashville, December 1, 1994). Applying this standard, we must conclude that the trial court acted within its discretion.

In summary, we note that, although the appellant was dia

gnosed with

Post-Traumatic Stress Disorde r at various times prior to the instant offense, the appellant’s complaints consisted primarily of r ecur rin g nig htm ares and anx iet y. Only in September 1997, almost one year af ter the instantoffense, did psy

chological test

ing suggest t

he presence of

a “thought disorder.” As to the appellant’s claims of memory loss, “‘[f]ailure to remember later, when accused, is in itself no proof of the mental conditio

n when [the] crime

was performed.’” Thomas v. State, 301 S.W.2d 358, 361 (Tenn. 1957)(citation omitted). S ee al so State v. Tate , No. 02C01 -9605-CR- 00164, 199

7 WL 746441, at *17 (Tenn . Crim . App. at Jackson, December 3, 1997)(lack of memory does not constitute proof of a defendant’s mental capacity at the time of his offense). Indeed, nothing in the appellant’s mental health records prior to September 1997 sugge sts a lack of capacity to form the mental state required for the commission of a theft, nor do the facts of the instant offen

se suggest such a lack of ca

pacity. This

issue is without meri

t.

b. Sufficiency of the Evidence

The a ppellant also cha

llenges the suff

iciency of

the evidence und

erlying hi

s conviction of theft. In this regard, the appellant carries the burden of demonstrating to this court that

no “reasonable trier

of fact” could have found the essential elements of the charged offense beyond

a reasonable doubt. Jacks on v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Tuggle
, 639 S.W.2d 913, 914 (Tenn. 1982); Tenn. R. App. P. 13(e). In other words, on appeal, the Stateis entitled to the strongest legitimate view of the evidence and all reasonable

inferences which may be drawn therefrom. State v. Williams , 657 S.W.2d 4 05, 4 10 (Tenn. 1983). Questions concerning the credibility of witnesses and th

e weight and va

lue to be given th

e evidence, as w

ell

as all factual issues raised by the evidence, are res olv ed b y the trier of fac t, and not the appe

llate
courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

In order to

find the appellant guilty of theft of property worth one thousand dollars ($1,000) or more, the trial court was required to find beyond a reasona ble doubt that (1) the appellant knowingly

obtained or exercised control over property worth one thousand dollars ($1,000) or more;-9-

(2) the appellant did not have the owner’s effective consent; and (3) the appellant intended

to deprive the own er of the pro pert y. Tenn. Code Ann. § 39-14-103 (1997); Tenn. Code Ann. § 39-14-105(3) (1997). In this appeal, the appellant contends that the State failed to establish that he stole anything other than an empty computer box. Specifically, the appellant notes that the State failed to introduce either the computer box or its content s at trial, i ntroducing instead a photograph of the closed computer box. Moreover, the appellant asserts that the record is devoid of testimony that “the box

was opened and

a particular computer was identified inside.” The State responds that Mr. Lynch’s testimony establish ed the con

tents of th

e compute

r box.

We initially note

that submerged within the appellant’s challenge to the sufficiency of the evidence is

a challenge to the trial

court’s admission at trial of the photograph of the boxed computer. The appellant as serts on appeal, a s he did at trial, tha

t t he St ate failed to pro

perly authenticate

the photograph. Tenn. R. Evid. 901. Specifically, the appellant argu

es that the State failedto establish

a chain of custody of the computer from the time of its removal by police from the appellant’s van until it was photographed by police. State v. Shead , No. 27, 1986 WL 13957, at *2 (Tenn. Crim. App. at Jackson, December 10, 1986). We conclude that, even assuming that the trial
court erred in admitting the photograph at tri al, any error was harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).

“As a general rule, there is no requirement that stolen chattels be introduced as exhib its into evidence.” State v. Ashley , No. 01C01-9706-CC-00219, 1998 WL 498739, at *6 (Tenn. Crim. App. at Nashville, August 20, 1998). See also Wallis v. State , 546 S.W.2d 244, 249 (Tenn. Crim. App. 1976); State v. Williams
, No. 02C01-9209-CR-00220, 1994 WL 553420, at *13 (Tenn. Crim. App. at Jackson, October 12, 1994); State v. Woodward , No. 03C01-9204-CR-00129, 1993 WL 20123, at *4 (Tenn. Crim. App. a t Knoxville, Februa

ry 2, 1993).

In other word

s, the State may establish a theft e

xclusively

through the testi

mony of a vic

tim. As previously

noted, Mr. Lynch testified that he was the general manager of Compu t er City and also testified that he observed the appellant enter his s tore and st eal a box co ntaining a Hewlett Packard computer worth a

pproximately $2,899. The appella nt did not challenge the introduction of Mr. Lynch’s testimony at trial anddoes
notproperly c

hallenge its intr

oduction in this

appeal. Moreover, both the appellant’s testimony and circumstantial evidence corr oborated Mr. L

ynch’s test

imony conce

rning the conte

nts of the bo x. See State v. Hall , 976 S.W.2d 121, 140 (Tenn. 1998), cert. denied
, U.S. , 119 S.Ct. 1501 (1999)(a crime may be established by direct evidenc e, circumstantial evidence, or a com bin ation thereof). Acco rdi ngly, the evidence adduced at trial supports the trial court’s verdict of guilt. This issue is likewise without me

rit.

III. Conclusion For the foreg

oing reasons, w

e affirm the judg

ment of the trial c

ourt.

___________________________________ NORMA McGEE OGLE, JUDGE