FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

DAVID D. HAYES    JEFFREY A. MODISETT
Terre Haute, Indiana    Attorney General of Indiana

             K. C. NORWALK
            Deputy Attorney General
            Indianapolis, Indiana

WILLIAM C. BURRELL, JR.,       )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 84A01-9705-CR-162
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Plaintiff.             )

II.     Whether the trial court erred in permitting a five-year-old to testify;

III.     Whether the trial court erred in giving one "reasonable doubt"     instruction over another; and,

IV.     Whether Burrell's sentence was manifestly unreasonable.

An obstetrician gynecologist examined the sedated victim and found a fourth degree laceration between the victim's vagina and rectum. Emergency surgery was performed to restore the victim's anatomy.
    A jury found Burrell guilty of child molesting.

Harrison v. State, No. 18S00-9712-CR-687, 1998 WL 531858, at *1 (Ind. Aug. 24, 1998)
(citations omitted).
    The photograph at issue corroborated the testimony of the police technician who originally took the picture. He stated that the photograph was a true and accurate representation of how the victim's injury looked at the time he photographed her. That same photograph was used later during the testimony of the obstetrician gynecologist who performed the surgery on the victim. He explained the nature and extent of the victim's

injury and used a pointer with the photograph to illustrate his testimony. He also testified that the injury to the victim looked exactly as it did in the picture. Thus, the photograph was probative of the details and severity of the injury.
    Undoubtedly, the photograph at issue is horrific. However, a father committing such actions against his four-year-old daughter is horrific in and of itself. We cannot say that the admission of a photograph depicting the serious injury resulting from such a crime heightened the reaction felt by jurors regarding this case. To the extent that the photograph is cumulative, it is only marginally so. Under these circumstances, any prejudice from the photograph was outweighed by its probative value, and the trial court did not abuse its discretion in admitting it. See Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998) ("Even gory and revolting photographs may be admissible as long as they are relevant to some material issue or show scenes that a witness could describe orally.").

that they understand the nature and obligation of an oath," that subsection was repealed in 1990. In January of 1994, the following rule became effective: "Every person is competent to be a witness except as otherwise provided in these rules or by act of the Indiana General Assembly." Ind. Evidence Rule 601.
    Rule 601's failure to presumptively exclude children does not prohibit special inquiry into their competency prior to testifying when the issue is raised by a defendant. Rather, Rule 601, read in conjunction with the repeal of the subdivision regarding children in the witness competency statute, abandoned the previous arbitrary lines drawn regarding age, in favor of a rule which assumes competency until otherwise demonstrated by the opponent of the testimony. See Newsome v. State, 686 N.E.2d 868, 877-78 (Ind. Ct. App. 1997) (Hoffman, J., concurring in result).
    During the competency hearing, the victim was questioned as follows:
Q [by the prosecutor]: I think I have on a blue jacket. Do I have on a blue
jacket?
A: Pink.
Q: Kind of pinkish red, is it, but is it blue?
A: Huh uh.
Q: No, it is definitely not blue, is it. [Victim], if I said that I have a blue jacket on, would that be the truth, you have to answer, can you say?
A: A lie.

Record at 358, 359, 363-64.
    The above discussion revealed that the victim understood a distinction between
truth and falsehood. The victim was able to articulate an unpleasant consequence for telling a lie and a pleasant consequence for telling the truth. Applying the abuse of discretion standard, we conclude that Burrell did not establish the victim's incompetency. Therefore, the trial court's decision to allow the victim to testify was proper.

Record at 486-88.
    The manner of instructing the jury lies largely within the sound discretion of the trial court, and we review the trial court's decision only for an abuse of that discretion. Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996). The above jury instruction was taken verbatim from the current Indiana Pattern Jury Instructions. See Indiana Pattern Jury Instructions-Criminal (2d ed. 1991 & supp. 1997), No. 1.15. Moreover, our supreme court recently expressly authorized and recommended the use of that same instruction. Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996). We do not believe the trial court abused its discretion by following the recommendation of our supreme court. See Higgins v. State, 690 N.E.2d 311, 313 (Ind. Ct. App. 1997).

Record at 137-38. In view of these other proper aggravators which Burrell does not

Converted by Andrew Scriven