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,AttorneyGeneral,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, 1993Chief Justice J. A. Turnage delivered the Opinion of the Court. George Alan Collins,Jr. (Collins),appealshis convictionfor 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 itsdiscretion by admitting a photograph of damage to Collins1vehicle? 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 stolenvehicle 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, containsaberrant reflections and, therefore, does not accurately depict the subject,which is damage to the left-rear of 2the 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 accuratelyportrayedthe 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 thepatrol 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? Collinsnext 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. InMontana, "thetrial court's instructionsmust cover every issue or theoryhaving support inthe 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 evidencewhich 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 

### fromwhich the jury

### couldhave rationally concludedthat thedamage to 

### thepatrol 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 towarrant
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 CERTIFICATEOFSERVICE 

### Iherebycertifythatthefollowingorderwas sentby United Statesmail,prepaid,to the followingnamed: GeorgeAllen Collins,Jr. #28522 700ConleyLake Road DeerLodge, MT 59722
Hon. MarcRacicot, AttorneyGeneral


## ,Assistant JusticeBldg. Helena,

### MT 59620 JohnT.Flynn CountyAttorney P.O.Box96 Townsend, MT 59644
EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA