dissenting:
To think that a father would repeatedly sexually abuse and sodomize his own son, and commit the same acts on a female child visiting his daughter shocks the mind and invokes revulsion. Such acts cry out for accountability and harsh punishment. Yet even a person, who stands accused of these acts is presumed to be innocent until proven guilty by proof beyond a reasonable doubt. He is entitled to a fair trial, and I do not believe the Appellant got one. Nor does the general lack of preservation of error in this case indicate that he got reasonably competent representation. Indeed, the trial court was unable to rule on admissibility of much of the erroneous evidence in this case because no objections were raised. And disgust for the nature of the charged offenses should play no part in deciding his guilt; respect for our vaunted jury system demands fair review, and if necessary, a reversal of an unfairly obtained verdict.
There, are no eye witnesses in this case, except for the two children, Nicholas and Sarah,8 whose testimony only includes one *47common incident, and there the recall of events is inconsistent. There is no physical evidence that can be tied to the sexual assaults because the trial occurred years after the alleged events. Neither of the children’s mothers observed or heard anything suspicious at the time the events allegedly occurred. The two children remained friends for a number of years, and “dated” in the sixth grade. As the Commonwealth said in closing, either the jury believed the testimony of the two alleged victims or it did not. In fact, the jury did not believe all the alleged victim’s claims because Appellant was acquitted of one count of sodomy against his son, Nicholas, and of one count of rape against the female child, Sarah.
The important question for this Court is whether the plethora of unpreserved errors in this case tipped the scales so much in favor of the alleged victims’ testimony that the trial was manifestly unfair. There is no question that had the errors been preserved, they would be harmful.
First, the indictment in this case charged that the events in question as to each child, which are clearly delineated as to the offense, happened over a period of time rather than on a specific date. For Nicholas, the time period spanned 1997-2004. For Sarah, the time period spanned 2002-2004. The charges were appropriately addressed as single crimes in the indictment and the jury instructions were tied to specific testimony at trial, so there is no unanimity problem.
But one problem is that when the alleged victims testified, they also testified about other “bad acts” that were not the acts alleged in the indictment. The majority resolves this by saying these acts occurred within the time frame of the indictment so they were appropriate testimony. But the time frame of the indictment is not controlling to permit evidence of any or all bad acts of a defendant at trial that may have occurred during that time frame. Rather, it is the nature of the evidence which must be considered, not whether the act could have been included in the indictment time period. Otherwise, the Commonwealth enjoys an end run around the strictures of KRE 404(b) by charging that a crime occurred during a period of time, introducing evidence of many instances of the crime during the time period that all seem to fit the indictment, and then “curing” any potential unanimity problem by limiting the jury instruction to a single instance.
Here, the Commonwealth did not give notice that it planned to introduce KRE 404(b) evidence of other bad acts, but it did elicit testimony from the alleged victims that were indeed other bad acts. And, in fact, some of this evidence did not fit within the indictment. And while some of it arguably did, that proof nevertheless violated KRE 404(b).
The Commonwealth’s Attorney set the tone for the improper “piling on” evidence in opening statement. There, he claimed Appellant had threatened to harm the children’s parents if the children told what he had done. But no testimony supported this, and the defendant was not charged ■with terroristic threatening.
Several of the instances were not covered by the indictment at all. For example, Sarah was permitted to testify Appellant took her and Nicholas to the basement, and made Nicholas rape and sodomize her. There was no charge against Appellant for this alleged behavior, such as use of a minor in a sexual performance, even though there could have been. This is also conduct that could not be covered by any of the *48named charges in the indictment, because the alleged rape and sodomy were done by Nicholas, not the Appellant. Beyond doubt, this allegation is prejudicial because of its abhorrent nature, and it is further nothing more than propensity evidence that the Appellant was sexually deviant as to something, but not as to direct rape, sodomy or sexual abuse.
Next, Sarah testified that Appellant beat her with a belt a few times, but stated that she did not know why. Such conduct, while arguably assault or child abuse, is not rape, sodomy, or sexual abuse.
Finally, she testified in response to a question about whether Appellant had ever taken pictures diming the abuse that once she thought she saw a flash, implying that Appellant was making child pornography, for which he also was not charged. But this was not for lack of trying or telling the jury about it. After the criminal complaint was filed, the police seized Appellant’s hard drive and two external drives from his computer. The drives were examined by Detective Frazier of the Kentucky State Police Electronic Crime Branch. He found nothing on the drives related to child pornography, yet the Commonwealth called him as a witness and pursued a line of questioning about bin files, encryptions and file extensions, asking if things could be hidden on a computer. The detective replied that they could. But no inappropriate images of Sarah or anyone else were found on the drive.
Appellant had not been charged with child pornography or any other electronic crime, but this testimony strongly implied that Appellant was a child pornographer and that he had hidden the evidence of his crime. This was obviously irrelevant to the crimes being tried. It is equally obvious that this was extremely prejudicial to Appellant. To the trial court’s credit, she questioned the relevancy, but as with most of the problematic evidence in this case, she was not given an opportunity to exclude the evidence or give an admonishment because trial counsel did not object.
This questioning about a non-existent crime, coupled with the question to Sarah about whether she ever saw Appellant taking photos, and her response, clearly implied another bad act prohibited by KRE 404(b). But this was also otherwise inadmissible because it was simply irrelevant, having no probative value as to the crimes charged, and was extremely inflammatory.
As to Nicholas, he was permitted to testify that the sexual abuse from his father was “constant.” While he may well have been the victim of multiple instances of abuse, his testimony that he was abused once a night or every other night “for quite a while” is testimony of more than the charged offense, which was framed around his testimony about the first instance when he claimed his father came into his bedroom and fondled his penis when he was five years old. That the action may have been repeated on other occasions does not go to prove that it happened in that one instant, and can only inflame the jury. While it is naturally information that sheds light on the child’s plight, it has no probative value as to the single offense charged. Instead, it is evidence of other uncharged offenses used to show Appellant’s propensity to commit the charged offense, and is therefore inadmissible under KRE 404(b).
Except for the implied child pornography evidence, it can be argued that each of these errors, standing alone, does not rise to the manifest injustice required to find palpable error. But cumulatively, they created strong prejudice in a trial that turned on the credibility of the witnesses, creating sympathy for them and revulsion toward Appellant, which tended to sway the jury to believe the alleged victims. *49And I believe the interjection of implied child pornography, which is totally irrelevant, crosses the line standing alone and cumulatively with the forgoing in creating a manifestly unfair trial.
But there are even more unpreserved harmful errors.
Despite this Court having consistently held that expert witnesses could not testify that child sex abuse occurred based on the child’s behavior — frequently termed “child sexual abuse accommodation syndrome”— to prove that an act of sex abuse occurred, see, e.g., Hall v. Commonwealth, 862 S.W.2d 821 (Ky.1993), prosecutors persist in interjecting that kind of evidence. At the heart of rejecting such evidence is the rationale that it “was not generally accept ed in the medical community, and that the expert was unable to connect the victim’s symptoms with the appellant rather than some other person.” Newkirk v. Commonwealth, 937 S.W.2d 690, 691 (Ky.1996). While sexually abused children may indeed exhibit certain patterns of conduct, “children who had not been sexually abused might well exhibit similar traits,” id., and that conduct, standing alone, does not identify who the perpetrator is. Yet, when paired with an accusation by a child, such conduct seemingly supports the allegation but it does so without the level of reliability necessary for proof beyond a reasonable doubt. Instead, it invites rank speculation that the behaviors at issue are in fact related to sex abuse in a given child, or that the person the child names as the abuser is in fact the perpetrator. This becomes “circumstantial” evidence that cannot be tied in fact to a particular defendant being tried, unlike appropriate circumstantial evidence, which always has a nexus that is identifiable to a particular defendant, and not to just any possible defendant in the world. The evidence thus may be indicative that a particular offense, such as rape or sodomy had happened to the child, or that the child had observed it, but not in any way be dispositive that the person accused did it.
In this case, Sarah’s mother testified that she could “look back” and see conduct or situations that indicated abuse, such as a rash on the child’s vagina “more than once,” and that Sarah had a bad gag reflex, and “to this day, they just tried to do a throat culture.” The last comment was particularly irrelevant but prejudicial, since the alleged event would have occurred years ago. And while this is not the pattern example of child sexual abuse accommodation syndrome testimony describing such conduct as evidence of a sexually abused child, there is a clear implication that this is what the events prove.
The forensic interviewer, Jennifer Kelly, who testified that she was trained at getting the truth out of child victims, also testified that Nicholas was very difficult and hesitant to speak, but that through her skilled interviewing, he did. Not only did this imply that hard to obtain testimony must be true, it also implied that he was behaving consistently with being sexually abused.
But the worst example of this type of evidence came when the Commonwealth introduced a drawing that showed a naked male and female figure, and what Nicholas described as “blood and semen” during Nicholas’s testimony. Nicholas first testified that the drawing showed a man and a woman who were “doing things to each other.” He remembered being in gym and bored when he drew the picture, but did not remember why he drew it. The drawing also showed what he called a “mon-sfyr” with a giant mouth and eye with fire coming out of it, and an ejaculating penis. Nicholas first called the female figure a woman, then switched to girl, and finally agreed with the Commonwealth’s sugges*50tion that it was a little girl. On cross-examination, he testified that he drew the picture as a cry for help. And after defense counsel pointed out that he had testified that Appellant always wore a shirt and the male figure was shirtless, Nicholas said the drawing was supposed to be his father.
The obvious problem with admitting this evidence is that it did not closely depict anything Nicholas had claimed occurred between him and Appellant. The figures were not identified on the drawing, and no sex act was actually depicted. Nonetheless, Nicholas’s elementary school counsel- or, Regina Jackson, was allowed to testify that she had kept the drawing for years because of her concerns, and that she had only seen pictures like that “when they were sex abuse cases.” Defense counsel did object at that point, and the court admonished the jury. But in closing argument, the Commonwealth disregarded the court’s admonition, and asked how many children would draw pictures like that at age eight which showed a penis and a vagina, or a monster with an ejaculating penis, and then said, “A child who has seen this draws this kind of picture; a child who has. experienced exactly what [Nicholas] says he experienced draws a picture like this. That’s what that says.” And while the Commonwealth may argue that sex abuse occurred, use of the picture allowed the Commonwealth to bootstrap the theory contained in the child sex abuse accommodation syndrome onto the argument that Nicholas' was contemporaneously recording what had happened to him as a sexually abused child would, even though no sex act was depicted and there were no clear identifiers.
Finally, on another ground of error, Sarah was allowed to give significant victim-impact testimony in the guilt phase of the trial. The Commonwealth asked her, “How has this personally affected you?” She then replied that there were lots of things she could not do; that doctors had problems when they needed to stick anything into her mouth because she started gagging and crying; that she could hardly brush her teeth in the morning; that there were times she could not eat because she could not stand the feeling of anything going down her throat. She stated that she had been seeing a psychiatrist over a year. She testified that the evaluation at Hope’s Place was not a pleasant experience because she had to take her clothes off and get in an embarrassing position. While such statements are relevant to fixing punishment in the penalty phase, they are not relevant to establishing the Appellant’s guilt, and they naturally invoke sympathy for the victim that is highly prejudicial, in violation of KRE 403. Likewise, the mother’s hindsight testimony about how their children acted at the time the abuse was alleged to have occurred also is improper victim-impact testimony in the guilt phase of the trial.
The effect, singly or cumulatively, of so many prejudicial errors is to render this a fundamentally unfair trial which does result in palpable error. Because these errors were not objected to, one approach would be to affirm the conviction, and leave fairness to be determined through a collateral attack. But given the level of error here, that would be unduly burdensome on the Appellant and on the court •system. These errors are such that they cannot be explained as reasonable trial strategy, and passing this problem to a collateral motion is simply kicking the can further down the road. And the important fact is that the Appellant did not get even a “reasonably fair” trial. When that is so apparent, this Court should reverse, and implement the remedy for such failure as quickly as possible. Consequently, I would reverse and remand for a new trial *51where the improper evidence was not allowed.
MINTON, C.J., joins.
. These are not the children’s names. Consistent with our practice, we use pseudonyms to *47protect their privacy.