Opinion of the Court by
Justice SCOTT.
A Crittenden Circuit Court jury found Appellant, Ethan Hughes, guilty of second-degree rape, for which he was sentenced to ten years’ imprisonment. The Court of Appeals affirmed the circuit court, and this Court granted Appellant’s request for discretionary review. Appellant makes the following arguments on appeal: 1) a prejudicial photograph of the victim was improperly introduced at trial, 2) a jury instruction improperly stated that the burden of proof for a defense was on Appellant, 3) the trial court erred in not permitting Appellant to call a relevant witness, and 4) the trial court improperly conducted a pseudo-deposition of a defense witness without Appellant’s knowledge or presence.
I. BACKGROUND
At the time of the sexual encounter which is the basis for this case, Appellant was nineteen years old, and the victim, Ashley,1 was twelve years old. Late one night, after she and her mother had gone to bed, Ashley got back up to get something to eat. "While up, she walked over to Appellant, who was watching television alone on the couch, and sat down beside him. They watched a few minutes of a movie and then engaged in sexual intercourse. The pair also engaged in sexual intercourse two more times over the course of the weekend.
Ashley testified that she told Appellant she was sixteen years old at the time, and that she thought he believed her. Appellant testified he did in fact believe Ashley when she told him she was sixteen, that she acted and sounded older than her true age, and that he looked up her “MySpace” page, which listed her age as seventeen. He acknowledged however, that he might have been wearing “beer goggles” that weekend, impacting his judgment as. to Ashley’s real age.
Nine months after the pair’s three-day tryst, Ashley gave birth to a child. Given Ashley’s young age, the birth caught the attention of medical personnel at the hospital, who responded by alerting authorities. Police Officer Jerry Parker interviewed Appellant, who admitted to having sexual intercourse more than once with Ashley. Based on this information, Appellant was charged with second-degree rape. At trial, Appellant’s defense was based on his belief that Ashley was sixteen years old at the time of the sexual encounters. At the conclusion of the trial, Appellant was convicted and sentenced as previously noted.
II. ANALYSIS
A. The Prejudicial Photograph
Appellant’s first argument on appeal is that the trial court erred by permitting the Commonwealth to introduce a photograph at trial of Ashley lying in a hospital bed on the day after she had given birth. Specifically, Appellant argues that this photograph was irrelevant to the case, highly prejudicial, and lacked any proba[559]*559tive value. The Commonwealth disagrees and believes the photograph was both relevant and probative.
When the photograph was introduced at trial, Appellant objected on the grounds that it did not accurately reflect how Ashley looked nine months previously, during the three-day period she was around Appellant. Ashley testified that she normally wore makeup, and that she was wearing makeup when she met and engaged in sexual intercourse with Appellant. In the photograph, however, Ashley is not only wearing no makeup, but is also holding her newborn child while lying in a hospital bed. Nonetheless, the trial court overruled Appellant’s objection and permitted the Commonwealth to introduce the photograph, stating that it could not be prejudicial because Appellant did not deny fathering the child.
In order to be admissible, a photograph must be relevant, and its prejudicial effect must not substantially outweigh its probative value. Chestnut v. Commonwealth, 250 S.W.3d 288, 302 (Ky.2008). “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401. A trial court’s ruling on relevancy is reviewed under an abuse of discretion standard. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000) (citing Justice v. Commonwealth, 987 S.W.2d 306, 314-15 (1998)). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999)).
Under these standards, we have held that a pregnancy and birth resulting from a charge of rape is not relevant to prove that rape occurred when the defendant already admits to engaging in sexual intercourse with the victim. Romans v. Commonwealth, 547 S.W.2d 128, 130 (Ky.1977). In Romans, we held that where no one questioned that the victim was raped, it was prejudicial error to allow proof that as a result of a rape, the victim had given birth to a child, stating, “[t]hat pregnancy ensued from [the rape] was utterly irrelevant and obviously calculated to incite the jury, a plain case of reckless overkill.” Id.
The same reasoning applies here. The central issue in this case was whether Appellant believed Ashley was sixteen years old at the time of their sexual encounter. To that point, the Commonwealth had already introduced a photograph of Ashley taken within one month of the incident, wearing makeup. The hospital photograph of Ashley, however, was taken nine months after she and Appellant engaged in sexual intercourse, and depicted her not only without makeup, but also in the very vulnerable position of being a young child lying in a hospital bed, holding her own newborn. It is, in essence, a powerful and impactful picture of a child holding a child, and is irrelevant to whether Appellant believed she was sixteen years old nine months earlier.2
Given that we find the photograph to be irrelevant, it is unnecessary to conduct a KRE 403 analysis to determine whether [560]*560the photograph’s probative value was substantially outweighed by its prejudicial effect. Under the circumstances that existed, the introduction of the photograph was unreasonable and unsupported by legal principles. Goodyear Tire, supra. Thus, we hold that the trial court abused its discretion in admitting the photograph into evidence and, because we cannot deem it harmless under the circumstances, we reverse Appellant’s conviction on this issue.
Because reversal in this case is due to trial error rather than insufficiency of evidence, double jeopardy does not bar a retrial on the same offense. Commonwealth v. Davidson, 277 S.W.3d 232, 235 (Ky.2009). Although our decision to reverse at this point renders Appellant’s remaining allegations of error moot, we will nonetheless address those we believe have a potential to recur if the case is retried. See Osborne v. Keeney, 399 S.W.3d 1, 13 n.
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Opinion of the Court by
Justice SCOTT.
A Crittenden Circuit Court jury found Appellant, Ethan Hughes, guilty of second-degree rape, for which he was sentenced to ten years’ imprisonment. The Court of Appeals affirmed the circuit court, and this Court granted Appellant’s request for discretionary review. Appellant makes the following arguments on appeal: 1) a prejudicial photograph of the victim was improperly introduced at trial, 2) a jury instruction improperly stated that the burden of proof for a defense was on Appellant, 3) the trial court erred in not permitting Appellant to call a relevant witness, and 4) the trial court improperly conducted a pseudo-deposition of a defense witness without Appellant’s knowledge or presence.
I. BACKGROUND
At the time of the sexual encounter which is the basis for this case, Appellant was nineteen years old, and the victim, Ashley,1 was twelve years old. Late one night, after she and her mother had gone to bed, Ashley got back up to get something to eat. "While up, she walked over to Appellant, who was watching television alone on the couch, and sat down beside him. They watched a few minutes of a movie and then engaged in sexual intercourse. The pair also engaged in sexual intercourse two more times over the course of the weekend.
Ashley testified that she told Appellant she was sixteen years old at the time, and that she thought he believed her. Appellant testified he did in fact believe Ashley when she told him she was sixteen, that she acted and sounded older than her true age, and that he looked up her “MySpace” page, which listed her age as seventeen. He acknowledged however, that he might have been wearing “beer goggles” that weekend, impacting his judgment as. to Ashley’s real age.
Nine months after the pair’s three-day tryst, Ashley gave birth to a child. Given Ashley’s young age, the birth caught the attention of medical personnel at the hospital, who responded by alerting authorities. Police Officer Jerry Parker interviewed Appellant, who admitted to having sexual intercourse more than once with Ashley. Based on this information, Appellant was charged with second-degree rape. At trial, Appellant’s defense was based on his belief that Ashley was sixteen years old at the time of the sexual encounters. At the conclusion of the trial, Appellant was convicted and sentenced as previously noted.
II. ANALYSIS
A. The Prejudicial Photograph
Appellant’s first argument on appeal is that the trial court erred by permitting the Commonwealth to introduce a photograph at trial of Ashley lying in a hospital bed on the day after she had given birth. Specifically, Appellant argues that this photograph was irrelevant to the case, highly prejudicial, and lacked any proba[559]*559tive value. The Commonwealth disagrees and believes the photograph was both relevant and probative.
When the photograph was introduced at trial, Appellant objected on the grounds that it did not accurately reflect how Ashley looked nine months previously, during the three-day period she was around Appellant. Ashley testified that she normally wore makeup, and that she was wearing makeup when she met and engaged in sexual intercourse with Appellant. In the photograph, however, Ashley is not only wearing no makeup, but is also holding her newborn child while lying in a hospital bed. Nonetheless, the trial court overruled Appellant’s objection and permitted the Commonwealth to introduce the photograph, stating that it could not be prejudicial because Appellant did not deny fathering the child.
In order to be admissible, a photograph must be relevant, and its prejudicial effect must not substantially outweigh its probative value. Chestnut v. Commonwealth, 250 S.W.3d 288, 302 (Ky.2008). “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401. A trial court’s ruling on relevancy is reviewed under an abuse of discretion standard. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000) (citing Justice v. Commonwealth, 987 S.W.2d 306, 314-15 (1998)). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999)).
Under these standards, we have held that a pregnancy and birth resulting from a charge of rape is not relevant to prove that rape occurred when the defendant already admits to engaging in sexual intercourse with the victim. Romans v. Commonwealth, 547 S.W.2d 128, 130 (Ky.1977). In Romans, we held that where no one questioned that the victim was raped, it was prejudicial error to allow proof that as a result of a rape, the victim had given birth to a child, stating, “[t]hat pregnancy ensued from [the rape] was utterly irrelevant and obviously calculated to incite the jury, a plain case of reckless overkill.” Id.
The same reasoning applies here. The central issue in this case was whether Appellant believed Ashley was sixteen years old at the time of their sexual encounter. To that point, the Commonwealth had already introduced a photograph of Ashley taken within one month of the incident, wearing makeup. The hospital photograph of Ashley, however, was taken nine months after she and Appellant engaged in sexual intercourse, and depicted her not only without makeup, but also in the very vulnerable position of being a young child lying in a hospital bed, holding her own newborn. It is, in essence, a powerful and impactful picture of a child holding a child, and is irrelevant to whether Appellant believed she was sixteen years old nine months earlier.2
Given that we find the photograph to be irrelevant, it is unnecessary to conduct a KRE 403 analysis to determine whether [560]*560the photograph’s probative value was substantially outweighed by its prejudicial effect. Under the circumstances that existed, the introduction of the photograph was unreasonable and unsupported by legal principles. Goodyear Tire, supra. Thus, we hold that the trial court abused its discretion in admitting the photograph into evidence and, because we cannot deem it harmless under the circumstances, we reverse Appellant’s conviction on this issue.
Because reversal in this case is due to trial error rather than insufficiency of evidence, double jeopardy does not bar a retrial on the same offense. Commonwealth v. Davidson, 277 S.W.3d 232, 235 (Ky.2009). Although our decision to reverse at this point renders Appellant’s remaining allegations of error moot, we will nonetheless address those we believe have a potential to recur if the case is retried. See Osborne v. Keeney, 399 S.W.3d 1, 13 n. 35 (Ky.2012) (observing that this Court has consistently engaged in this type of review).
B. The Jury Instruction
Appellant’s second argument on appeal is that the following instruction was improperly given to the jury:
Although you may believe from the evidence beyond a reasonable doubt that Ethan Hughes engaged in sexual intercourse with [Ashley] and that [Ashley] was less than fourteen (14) years old, and would otherwise be guilty of rape in the second degree under instruction number II, if you believe from the evidence that he believed she was at least sixteen (16) years of age, then you shall find him not guilty. You shall consider what he actually believed, and not whether it was a reasonable belief. The burden of proof for this defense is on the defendant.
The above instruction is an almost exact copy of the one provided for in Kentucky’s model jury instructions. Cooper, Kentucky Instructions to Juries, (Criminal) § 4.-33 (rev. 5th ed.2014). However, Appellant argues that the last sentence of the instruction (not found in the model instruction) is inappropriate because there is no authority for its inclusion in the instruction, and because of its propensity to mislead the jury on how to decide the defense issue.
Appellant does not disagree that he bears the burden of proof of his defense, and we note it is clear that Appellant does in fact bear the burden of proving his lack of knowledge of Ashley’s capacity to consent to sexual intercourse. See KRS 500.070(3) (“The defendant has the burden of proving an element of a case ... if the statute which contains that element provides that the defendant may prove such element in exculpation of his conduct.”) and KRS 510.030 (“The defendant may prove in exculpation that at the time he engaged in the conduct constituting the offense he did not know of the facts or conditions responsible for ... incapacity to consent.”).
However, the commentary on the model jury instruction for this defense, as set out in Cooper, supra, clearly explains that this burden of proof is already “assigned to the Defendant by requiring the jury to ‘believe from the evidence’” that the defendant lacked the requisite knowledge. Thus, the language unduly emphasizes the defendant’s burden in this instance. We therefore caution the trial court to be aware of this inappropriate deviation from the model instruction should retrial occur.
C. The Trial Court’s Denial of an Additional Witness for Defendant
Appellant’s third argument on appeal is that the trial court erred in not allowing Police Detective Billy Summer to [561]*561testify at trial. Detective Summer would have testified that while speaking with Ashley she told him that she had previously lied about being sixteen years old to another boy. Appellant wanted to present this testimony in order to support his defense that he believed Ashley was sixteen years old. Additionally, he wanted to impeach her earlier testimony in which she denied telling anyone else she was sixteen years old.
The Commonwealth argued that the introduction of this testimony would violate KRE 412,3 which bars testimony concerning a victim’s prior sexual activity. The trial court agreed with the Commonwealth, and declined to allow the detective’s testimony due to the alleged likelihood that the jury would speculate about Ashley’s sexual history. The trial court also believed that the testimony would be irrelevant and unduly prejudicial. The Court of Appeals agreed, stating that Ashley’s statements to others were irrelevant to Appellant’s belief about Ashley’s age. Furthermore, the Court of Appeals noted that one of Appellant’s witnesses already testified that she believed Ashley was sixteen and that another witness testified that Ashley often told people she was sixteen. Therefore, the substance of Detective Summer’s testimony was, in effect, already presented to the jury.
We agree with the trial court’s ruling and find no error here. The jury had ample evidence contradicting Ashley’s testimony to the contrary, and the detective’s testimony is not likely to have made any difference.
D. Pseudo-Deposition of Defense Witness
Appellant’s final argument on appeal concerns his exclusion from what he characterizes as the “pseudo-deposition” of a defense witness, held without his knowledge. Appellant’s counsel waived his client’s presence at a pre-trial hearing in which the trial court previewed the witness’s testimony. Because we believe this is unlikely to occur during a retrial, we decline to address whether this constituted error.
III. CONCLUSION
Due to the erroneous introduction of the hospital photograph at trial, we reverse the decision of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
CUNNINGHAM, NOBLE, and VENTERS, JJ.,' join. ABRAMSON, J., dissents by separate opinion in which MINTON, C.J., and KELLER, J., join.