No. 92-215 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

GEORGE ALAN COLLINS, JR., 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Broadwater, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

George Alan Collins, Jr., pro se, Deer 

Lodge, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Cregg W. Coughlin, Assistant Attorney General, 

Helena, Montana 

John T. Flynn, County Attorney, Townsend, Montana 

Submitted on Briefs: December 15, 1992 

Decided: January 12, 1993 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

George Alan Collins, Jr. (Collins), appeals his conviction for 

felony criminal mischief following a jury trial in the District 

Court for the First Judicial District, Broadwater County. We 

affirm the conviction. 

The issues presented for our consideration are: 

1. Did the District Court abuse its discretion by admitting 

a photograph of damage to Collins1 vehicle? 

2. Did the District Court err in refusing to instruct the 

jury on the lesser included offense of misdemeanor criminal 

mischief? 

On September 27, 1991, Collins took his mother's Chevrolet 

Camaro after she denied him permission to use it. After learning 

Collins had her vehicle and refused to return it, Mrs. Collins 

reported the vehicle as stolen. A report of a drunk driver and a 

stolen vehicle was transmitted to law enforcement personnel in the 

area. That evening, Officer Cal Janes of the Montana Highway 

Patrol observed the suspect vehicle and turned his patrol car to 

pursue. After a lengthy chase, during which Collins at one point 

rammed Janes' patrol car with his mother's car, Collins was 

apprehended at a road block. Collins appeals his conviction. 

Did the District Court abuse its discretion by admitting a 

photograph of damage to Collins' vehicle? 

Collins contends State's exhibit number 4, a flash-assisted 

photograph, contains aberrant reflections and, therefore, does not 

accurately depict the subject, which is damage to the left-rear of 

2 
the Camaro. In ascertaining whether evidence is admissible, the 

District Court must determine that it is both relevant and 

competent. State v. Henry (1990), 241 Mont. 524, 531, 788 P.2d 

316, 320. In addition, 

evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the 

jury, . . . . 

Rule 403, M.R.Evid. Whether the photograph is relevant and 

competent, and whether or not the probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading effect upon the jury "is a matter for the 

discretion of the trial court." State v. Devlin (1991), 251 Mont. 

278, 283, 825 P.2d 185, 188. 

Collinst contention that the flash reflections may be 

interpreted as more extensive damage than actually existed is 

without merit. The general rule governing the admissibility of a 

photograph is that the "photograph is admissible if it fairly and 

accurately represents the relevant evidence." State v. Austad 

(1981), 197 Mont. 70, 82, 641 P.2d 1373, 1380. Officer Janes 

testified that he took the photograph and that the photograph 

accurately portrayed the damage to the Camaro after it struck his 

patrol car on the night of September 27, 1991. The District Court 

overruled counsel's objection and admitted the photograph into 

evidence. 
We hold the flash-assisted photograph accurately portrayedthe 

damage to Collins ' vehicle, was relevant and competent, and did not 

operate to mislead the jury as to the damage to the Camaro. 

Furthermore, Collins was not convicted based upon the amount of 

damage to the Camaro. He was convicted based upon the amount of 

damage to the patrol vehicle. The District Court did not abuse its 

discretion in allowing the photograph into evidence. 

Did the District Court err in refusing to instruct the jury on 

the lesser included offense of misdemeanor criminal mischief? 

Collins next contends that the District Court erred by failing 

to instruct the jury as to the lesser included offense of 

misdemeanor criminal mischief. This argument too falls short of 

reversible error. In Montana, "the trial court's instructions must 

cover every issue or theory having support in the evidence." State 

v. Van Dyken (1990), 242 Mont. 415, 432, 791 P.2d 1350, 1360. This 

includes an instruction on a lesser included offense where "any 

evidence exists in the record which would permit the jury to 

rationally convict the defendant of a lesser offense and to acquit 

him of a greatern offense. Van Dvken at 432. 

In the case at bar, the record is devoid of any evidence which 

would have permitted the jury to rationally convict Collins of the 

lesser included offense of misdemeanor criminal mischief. The 

record reveals that the only evidence introduced as to the amount 

of damage to the patrol vehicle, was a "low bidn repair order for 
$392. Collins presented no evidence from which the jury could have 

rationally concluded that the damage to the patrol vehicle was less 

than $300. Thus, the District Court was correct in refusing to 

instruct the jury as to the lesser included offense of misdemeanor 

criminal. mischief. Evidence must be presented at trial to warrant 

an instruction on a lesser included offense. State v. olivieri 

(1990), 244 Mont. 357, 360, 797 P.2d 937, 939, There is na 

reversible error. The conviction is affirmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

We concur: / 
January 12, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

George Allen Collins, Jr. 

#28522 

700 Conley Lake Road 

Deer Lodge, MT 59722 

Hon. Marc Racicot, Attorney General 

, Assistant 

Justice Bldg. 

Helena, MT 59620 

John T. Flynn 

County Attorney 

P.O. Box 96 

Townsend, MT 59644 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA