DA 06
- 0771 IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 322N
STATE OF MONTANA, Plaint iff and Appellee,
v. JACOB RAY HOGSETT, Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County

of Flathead, Cause No. DC

- 2006
- 030(B) Honorable Katherine R. Curtis, Presiding Judge COUNSEL OF RECORD:

For Appellant: Jim Wheelis, Chief Appellate Defender, Lisa S. Korchinski , Assistant Appellate Def

ender, Helena, M ontana For Appellee: Hon. Mike McGrath, Montana Attorney General, Ilka Becker, Assistant Attorney

General, Helena, Montana Ed Corrigan, Flathead Count y Attorney, Dan Guzynski, Lori Adams, Deputy Count y Attorneys, Kalispell, Montana

Submitted on Briefs: November 14, 2007 Decided: December 5, 2007 Filed:

__________________________________________ Clerk December 5 20072

Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following me morandum decision shall not be cited as precedent. Its case title, Supreme Court cause number and disposition shall be included in this Court ’ s quarterly list o f noncitabl e cases published in the Pacific Reporter and Montana Reports. ¶2 Jacob Ray Hogsett appeals an evidentiary ruling of the Eleventh Judicial District Court ma de during the course of his trial for Robbery and Accountability for Robbery in August of 2006. This r uling permitted the admission of an enlarged photograph of Ho gsett used by the State during his trial. B ecause the District Court did not abuse its discretion in admitting this p hotograph , and the photograph itself did not prejudice Hogsett , we affirm. ¶3 OnJ anuary 14, 2006, Hogsett, his h alf

- brother Kyle Kolb, and his f riend Brett Johnson, were drinking at a bar called Casey’s in Whitefish, Montana. During thecourse of his visit to Casey’s, Hogsett struck up a conversation with Matthew Madsen and Brian Hughes, residents of Missoulawho had come up to Whitefish to go skiing at B ig Mountain SkiResort. After Casey’sclosed , Hughes and Madsen asked Hogsett for a ride back to their hotel room. En route to the hotel , they discussed the possibility of drinking
more alcohol and smoking marijuana, and Hughes had Hogsett and Kolb stop at an AT M machine so he could withdraw mo ney. O nce they arrived at the hotel, Madsen and Hughes invited Hogsett and Kolb up to their hotel room.3

¶4 Shortly after arriving in the hotel room, an altercation ensued among these individuals. D uring the course of the altercation, Kolb took money from Hughes’s wallet. Hogsett, Kolb, and Johnson then left the motel, and drove away. They were later arrested and tried separately
. ¶5 During Hogsett’s trial, the State admitted three line

- up photographs containing pictures of Hogsett, Kolb, Johnson, and other individuals. Additionally, the State mo ved to admit enlarged , 81⁄2” by 11” photographs o f these same line

- up photos showing Hogsett, Johnson, and Kolb separately . Hogsett’s counsel did not object to the admission of the line

- up photos themselves, but ob jected to the admission of the enlarged photographs at trial, arguing that they were cumulative, irrelevant and prejudicial. The District Court admitted the enlarged photographs of Hogsett and Johnson, but denied admission of the enlarged photograph of Kolb. The jury found Hogsett guilty of Robbery on August 24, 2006. ¶6 On appeal, Hogsett argues that the admission of the enlarged photographs prejudi ced him at trial. A s evidence of this, Hogsett notes that some of the juror sp olled after the trial stated that Hogsett’s physical appearance made them tend to believe he was guilty, and that the enlarged photograph only served to inflame and prejudice th e jury against him. In countering Hogsett on appeal, the State argues it i s unfortunate if Hogsett’s appearance might have contributed to his conviction, but if that is the case it would not be due to the enlarged photograph s themselves because the line

- u p photos were properly admitted , and Hogsett was physically present in the courtroom for the jury to observe during the trial.4

¶7 We review a district court’s evidentiary rulings under the abuse of discretion standard. State v. McCaslin , 2004 MT 212, ¶ 15, 3 22 Mont. 350, ¶ 15, 96 P.3d 722, ¶ 15.

“An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. ” McCaslin , ¶ 15. A bsent an abuse of discretion, we will not overturn a district court’s evidentiary rulings. McCaslin , ¶ 15. Moreover, if we determine that evidence has been improperly admitted by the district court, we will reverse its decision only if the admission of that evidence was prejudicial to the defendant. State v. Berger , 1998 MT 170, ¶ 39, 290 Mont. 78, ¶ 39, 964 P.2d 725, ¶ 39. “ In order for inadmissible evidence to be prejudicial, there must be a reasonable possibility that the evidence might have contributed to the conviction. ” Berger, ¶ 39. ¶8 We agree with the State and affirm the District Court. The enlarged photograph
was not altered and did not depict Hogsett in a prejudicial light. M oreover, the line

- up photos were properly admitted and Hogsett was personally present in the courtroom during the trial. For th ese reasons, we conclude the District Court did not abuse its discretion or prej udice Hogsett by admitting the enlarged photographsat trial. ¶9 Affirmed. /S/ PATRICIA COTTER We Concur: /S/ KARLA M. GRAY /S/ JIM RICE /S/ JAMES C. NELSON /S/ BRIAN MORRIS