dissenting.
Respectfully, I dissent. There are a number of points in the opinion as written where I disagree.
Appellant moved to prohibit evidence from Janet Pendleton, another daughter, charging her father with having committed prior acts of sexual abuse against Janet, offenses not charged in the indictment. The testimony was admitted. The testimony was of prior instances, years earlier, involving different sexual contact, “messing” around but not intercourse or sodomy.
Warner v. Commonwealth, Ky., 621 S.W.2d 22 (1981) was reversed because the trial court erroneously admitted evidence similar in character. In Warner, a deputy jailer was convicted of three counts of rape and one count of sodomy committed against inmates under his supervision. The trial court had permitted cross-examination of the defendant regarding “sexual advances” to other inmates, which, after denial, was followed by rebuttal evidence offered to prove such conduct. The court held that such evidence is not admissible except in “special cases” where there is proof of “prior acts of a similar or identical nature, not too remote in time.” (Emphasis original) 621 S.W.2d at 25. The evidence in the present case does not qualify for the exception to the rule. This case should be reversed.
The majority opinion holds that this testimony from daughter Janet charging prior instances of sexual misconduct was not admissible to prove “lustful inclination” in the accused, overruling Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972) to the extent that Russell approved use of such evidence to prove “lustful inclination.” But the majority opinion in the present case then holds that such evidence could be admitted “to prove intent, motive or a common plan or pattern of activity.” There is no distinction between these two phrases as they apply in the present situation. The only issue in this case was did the appellant commit the criminal acts against daughter April charged in the indictment? The only reason the past sexual misconduct daughter Janet testified to would have any relevance to the issue in the case would be if it served to show the accused’s “lustful inclination” to commit such acts.1 Lustful inclination, propensity *555to commit the crime charged, and “intent, motive or a common plan or pattern of activity” (which is the current phraseology of the majority opinion), are all of one meaning here. We should not create a formula to do what we say cannot be done.
Appellant was denied the right to present testimony from a qualified psychologist, which was offered as “expert testimony of mental condition ... as affecting the probability of the [appellant] having committed the charged offenses.” The psychologist’s testimony was offered to prove that the appellant “does not have a psychological profile that [is] indicative of or consistent with a sex offender.” This testimony refutes the testimony from daughter Janet, which, if it had any relevancy, served only to indicate a propensity to commit the acts against daughter April with which the appellant is charged. Appellant had a constitutional right to refute this testimony against him. U.S. Const., Amend. VI; Ky. Const., § 11.
The majority opinion erroneously mis-cites Koester v. Commonwealth, Ky., 449 S.W.2d 213 (1969) and Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984) as support for denying the admissibility of the psychologist’s expert testimony. The rule underlying the holding in these two cases is exactly the opposite. In Koester, a psychiatrist was asked for his subjective “opinion concerning the guilt or innocence of the accused,” the “very issue it was within the province of the jury to resolve.” Koester, supra at 215. We excluded such evidence on the basis of “the difference between an objective opinion and a subjective conclusion,” stating “it is the difference between the mental abnormality and the specific ‘product’ produced thereby.” Id.
In the present case counsel for appellant offered testimony directed at the accused’s mental condition, not the psychologist’s subjective conclusion as to guilt of the particular offense.
In Hampton v. Commonwealth, supra 666 S.W.2d at 742, we excluded an offer of testimony from a witness designated a “clinical social worker,” that in his opinion the appellant “would not have become involved with a twelve year old victim.” We avoided coming to grips with the underlying question as to whether relevant evidence of psychological propensity should be admitted, citing two reasons: (1) the absence of any “offer of proof by avowal that the witness was an expert”; and (2) “[t]he testimony as proffered went to the ultimate question of the guilt or innocence of the appellant, rather than being limited to a professional opinion regarding mental condition.” Id.
In the present case we are faced squarely with testimony from a qualified expert that is limited to a professional opinion regarding mental condition. We have heretofore recognized evidence similar in nature as admissible in Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), and the Court of Appeals has also done so in Robinson v. Commonwealth, Ky.App., 569 S.W.2d 183 (1978). The majority opinion is in conflict with precedent, is outside the mainstream of American law, and, most importantly, in the context of this case where it refuted the opposite inferrence resulting from the testimony of sister Janet Pendleton, refusing such testimony denied appellant’s constitutional right to confront the evidence against him.
By approving both the use of the testimony from sister Janet and exclusion of the psychologist’s testimony which tends to refute it, we provide the prosecutor a license to introduce testimony which cannot be rebutted.
There are two other errors which, standing alone, would not necessarily require reversal. But these errors, when considered cumulative of the errors previously discussed, are of an overwhelming nature. First, the jury heard testimony of a highly inflammatory, prejudicial and irrelevant na*556ture, of unrelated collateral criminal activity supposedly committed by the appellant. This involved acts of a violent and reprehensible nature supposedly committed by the appellant. In the circumstances of this case the trial court’s admonitions to disregard such testimony were not sufficient to cure the error.
Likewise, with regard to closing argument, the prosecutor was permitted to argue, improperly and over objection, that “the jury punish Fred Pendleton for what he’s done to the lives of his daughters.” The argument urging the jury to punish for offenses not charged in the indictment was highly improper. Beason v. Commonwealth, Ky., 548 S.W.2d 835 (1977); Brown v. Commonwealth, Ky., 357 S.W.2d 681 (1962). The appellant received two life sentences. It cannot be said beyond a reasonable doubt that the improper argument did not contribute to the verdict obtained.
This case should be reversed, and a new trial ordered.
. The Commonwealth’s Brief "submits that Janet’s testimony regarding uncharged prior sexual *555offense (sic.) committed upon her by appellant were properly allowed into evidence as proof of a lustful sexual disposition toward children and a continuing pattern of conduct.” (Emphasis added)