                            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
