COOPER, Justice.
On January 11, 1997, Elaina Curtis, age ten months, died from a ruptured spleen which allegedly resulted from physical abuse inflicted by her stepfather, Kenneth Tharp. Medical examinations of the child’s body also revealed severe bruises of the legs, abdomen, chest, forehead, left eye, scalp and the back of the head. Some of the bruises were estimated to be seven days old or older. There were also fractures of the left ulnar and of another bone just above the ankle joint, the latter estimated to be seven to eight days old and the former estimated to be a month old. A radiologist opined that the fractures were caused by two acts of deliberate child abuse occurring on two separate occasions.
Kenneth Tharp and his wife, Appellant Myrna Tharp, the child’s mother, were indicted by a McCracken County Grand Jury on charges of wanton murder and criminal abuse in the first degree. Kenneth was also indicted as a persistent felony offender in the first degree. A motion for separate trials was granted, RCr 9.16, and Appellant’s case was tried first. Appellant testified that she had never witnessed her husband abusing Elaina and had never observed anything seriously wrong with the child until shortly before her death. However, she had previously given statements to the police in which she admitted (1) that she had observed her husband beat the child with his fists on occasions prior to January 11, 1997; (2) that she saw her husband strike Elaina with his fists on January 11, 1997, knocking the child from side-to-side, and that she told him to stop hitting the child, but then left the room and closed the door behind her, leaving the child alone with her husband; and (3) that later that same day, she saw her husband throw Elaina to the floor, but thought he was just “playing” with the child. Shortly thereafter, Appellant observed blood in Elaina’s diaper and that she was having difficulty breathing. An ambulance was called, but efforts to save the child’s life were unsuccessful.
Appellant was convicted of wanton murder by complicity and of criminal abuse in the second degree, and was sentenced to a total of twenty-seven years in the peniten[360]*360tiary. She appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), alleging (1) that her conviction of wanton murder by complicity violates the fair warning aspect of the Ex Post Facto clauses of the United States and Kentucky constitutions; (2) that the jury was improperly instructed on the legal requirements of guilt by complicity; and (3) various errors with respect to the admission or exclusion of evidence offered at trial.
I. EX POST FACTO.
There was no evidence that Appellant killed Elaina Curtis or that she aided, abetted, encouraged, or otherwise actively participated in the conduct which resulted in Elaina’s death. Her criminal liability is predicated upon the violation of her legal duty to make a proper effort to protect her child from her husband’s assaults. KRS 502.020(2)(c).
KRS 502.020 describes two separate and distinct theories under which a person can be found guilty by complicity, i.e., “complicity to the act” under subsection (1) of the statute, which applies when the principal actor’s conduct constitutes the criminal offense, and “complicity to the result” under subsection (2) of the statute, which applies when the result of the principal’s conduct constitutes the criminal offense, viz:
(1) A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c)Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
(2) When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense when he:
(a) Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or
(b) Aids, counsels, or attempts to aid another person in planning, or engaging in the conduct causing such result; or
(c) Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.
(Emphasis added.)
The primary distinction between these two statutory theories of accomplice liability is that a person can be guilty of “complicity to the act” under KRS 502.020(1) only if he/she possesses the intent that the principal actor commit the criminal act. However, a person can be guilty of “complicity to the result” under KRS 502.020(2) without the intent that the principal’s act cause the criminal result, but with a state of mind which equates with “the kind of culpability with respect to the result that is sufficient for the commission of the offense,” whether intent, recklessness, wantonness, or aggravated wantonness. KRS 502.020 (1974 Official Commentary); R. Lawson and W. Fortune, Kentucky Criminal Law § 3-3(b)(3), at 106, § 3-3(c)(2), at 114 (LEXIS 1998). The most common examples of offenses having a prohibited result are homicide, with the death of another as the prohibited result, and assault, with the bodily injury [361]*361of another as the prohibited result. KRS 502.020 (1974 Official Commentary).
In the context of criminal homicide, a defendant can be found guilty by complicity of an intentional homicide (intentional murder or manslaughter in the first degree) under KRS 502.020(1) only if there is evidence that he/she either actively participated1 in the actions of the principal, or failed in a legal duty to prevent those actions, with the intent that the victim’s death (or serious physical injury per KRS 507.030(l)(a)) would result. However, a defendant can be found guilty of complicity to an unintentional homicide under KRS 502.020(2) if there is evidence that he/she either actively participated in the actions of the principal, or failed in a legal duty to prevent those actions, mth-out the intent that those actions would result in the victim’s death, but with recklessness, ie., failure to perceive a substantial and unjustifiable risk that death would result, KRS 501.020(4), supporting a conviction of reckless homicide by complicity, KRS 507.050; wantonness, ie., an awareness of and conscious disregard of a substantial and unjustifiable risk of that result, KRS 501.020(3), supporting a conviction of manslaughter in the second degree by complicity, KRS 507.040;2 or aggravated wantonness, ie., wantonness creating a grave risk of death under circumstances manifesting an extreme indifference to human life, supporting a conviction of wanton murder by complicity, KRS 507.020(l)(b).
In Knox v. Commonwealth, Ky., 735 S.W.2d 711 (1987), the mother was convicted of first-degree rape by complicity for failing to make a proper effort to prevent her husband from raping her child, ie., complicity to a prohibited act. KRS 502.020(1)(c). In reversing the mother’s conviction, we held that there was no statutory or common law duty in Kentucky requiring the mother “to prevent the commission of the rape,” Knox, supra, at 711; thus, there was no basis for application of the “legal duty” theory enunciated in KRS 502.020(1)(c). We specifically rejected an argument that KRS 199.335, the then-existing statute requiring the reporting of child abuse, created a legal duty to prevent child abuse; and further held that any legislative intent embodied in the newly-enacted criminal abuse statutes, KRS 508.100, et seq., could not be considered because the offense in Knox occurred prior to the enactment of those statutes.
In Lane v. Commonwealth, Ky., 956 S.W.2d 874 (1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1067, 140 L.Ed.2d 127 (1998), the mother was convicted of first-degree assault by complicity for failing to make a proper effort to prevent her domestic companion from inflicting serious physical injuries upon her child, ie., complicity to a prohibited result. KRS 502.020(2)(c). In affirming the mother’s conviction, we held that Kentucky law imposes a legal duty upon a parent to make a proper effort to protect his/her child from harm at the hands of another, thus trig[362]*362gering the “legal duty” aspects of KRS 502.020(1)(c) and (2)(c). Lane expressly overruled Knox in that respect. Lane, supra, at 876 (plurality opinion), 881 (concurring opinion). Appellant’s indictment and conviction of wanton murder by complicity was predicated upon the holding in Lane. Elaina Curtis was killed on January 11, 1997. Lane was not rendered until June 19, 1997. Thus, Appellant asserts that her conviction violates the “fair warning” aspect of the Ex Post Facto Clause. U.S. Const. art. I, § 10; Ky. Const. § 19(1).
An ex post facto violation occurs in the context of a judicial decision “[w]hen a[n] ... unforeseeable state court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect [being] to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.” Bouie v. City of Columbia, 378 U.S. 347, 354-55, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1964).3 “[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997).4 “[T]he touchstone [for determining fair warning] is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” Id. at 267, 117 S.Ct. at 1225. However, no more is required than “that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975). Applying these principles to the case sub judice, we conclude that at the time Appellant committed the offense of wanton murder by complicity, she had “fair warning” that her failure to make a proper effort to protect her child from her husband’s assaults violated her “legal duty” to do so, as required by KRS 502.020(2)(c).
Knox v. Commonwealth, supra, involved a conviction of “complicity to the act” of rape, KRS 502.020(l)(c), and there was some evidence of the required element of intent, i.e., that the child pleaded with her mother to protect her from the stepfather’s sexual assaults, but the mother refused. Gilbert v. Commonwealth, Ky., 838 S.W.2d 376 (1991). In Lane v. Commonwealth, supra, there was no evidence that the mother intended for either the assault or the resulting injuries to occur. Thus, her liability could have been predicated only upon the theory of “complicity to the result” embodied in KRS 502.020(2)(c) by failing to perform her legal duty to make a proper effort to prevent the assault (the conduct causing the result), accompanied by a state of mind of aggravated wantonness per KRS 508.010(1)(b) with respect to [363]*363the result of that conduct.5 Lane, supra, at 882 (Cooper, J., concurring).
However, the different results in Knox and Lane were not due to the fact that Knox involved a “complicity to the act,” which requires intent, whereas Lane involved a “complicity to the result,” which does not. The different result in Lane emanated from changes in the law which occurred in the interim between our 1987 decision in Knox and our 1997 decision in Lane. The plurality opinion in Lane (three justices) relied primarily upon the legislative intent expressed in (1) the enactment of the criminal abuse statutes, KRS 508.100, et seq., which had been specifically disregarded in Knox because they were enacted after the commission of the offense in that case, and (2) the enactment of KRS 620.010,6 which contains the following statement of legislative purpose, viz:
Children have certain fundamental rights which must be protected and preserved, including but not limited to ... the right to be free from physical, sexual or emotional injury or exploitation.... (Emphasis added.)
No similar language was contained in former KRS 199.335, the reporting statute which was interpreted in Knox and which was subsequently repealed.7
The concurring opinion in Lane (two justices) relied primarily upon the intervening development in our common law of the concept of a “special relationship” imposing a legal duty upon one having custody of another to protect that person from harm, cf. Fryman v. Harrison, Ky., 896 S.W.2d 908 (1995), Ashby v. City of Louisville, Ky.App., 841 S.W.2d 184 (1992); and the application of that principle to the parent/child relationship in other jurisdictions, even in circumstances where the parent, although aware of the abuse being perpetrated upon the child by another, was not present when the fatal or seriously injurious assault occurred. E.g., People v. Peters, 224 Ill.App.3d 180, 166 Ill.Dec. 511, 586 N.E.2d 469 (1991).
Thus, Appellant had “fair warning” of our decision in Lane, both in Knox, itself, (that a different result might obtain if the offense occurred after the enactment of KRS 508.100, et seq.) and by changes in both the statutory and common law of Kentucky, as well as judicial interpretations by courts of other states, which occurred subsequent to Knox. See generally United States v. Lanier, supra. Even more significant, however, is the fact that Lane was before this Court on a grant of discretionary review of a published opinion8 of our Court of Appeals, which also held that Knox had been abrogated by subsequent changes in Kentucky law. The Court of Appeals’ opinion in Lane was rendered on October 6, 1995, five months before Elaina Curtis was bom and fifteen months before she was brutally slain.
II. COMPLICITY INSTRUCTIONS.
The complicity instructions given by the trial court were as follows:
INSTRUCTION NO. 3
You will find the Defendant guilty of Complicity to Murder under this In[364]*364struction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about January 11, 1997 and before the finding of the Indictment herein, Kenneth Tharp killed Elaina Curtis by beating her with his fists;
B. That the Defendant, Myrna Tharp, failed to make a proper effort to prevent Kenneth Tharp from beating Elaina Curtis with his fists;
AND
C. That in so doing, the Defendant wantonly engaged in conduct which created a grave risk of death to another and the Defendant’s conduct thereby caused the death of Elaina Curtis under circumstances manifesting an extreme indifference to human life.
INSTRUCTION NO. k
If you do not find the Defendant, Myrna Tharp, guilty under Instruction No. 3, you will find the Defendant, Myrna Tharp, guilty of Complicity to Second-Degree Manslaughter under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about January 11, 1997 and before the finding of the Indictment herein, Kenneth Tharp killed Elaina Curtis by beating her with his fists;
B. That the Defendant, Myrna Tharp, failed to make a proper effort to prevent Kenneth Tharp from beating Elaina Curtis with his fists;
AND
C. That in so doing, the Defendant was acting wantonly as that term is defined in Instruction No. 2.
INSTRUCTION NO. 5
If you do not find the Defendant, Myrna Tharp, guilty under Instruction No. 3 or Instruction No. 4, you will find the Defendant, Myrna Tharp, guilty of Complicity to Reckless Homicide under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about January 11, 1997, and before the finding of the Indictment herein, Kenneth Tharp killed Elaina Curtis by beating her with his fists;
B. That the Defendant, Myrna Tharp, failed to make a proper effort to prevent Kenneth Tharp from beating Elaina Curtis with his fists;
AND
C. That in so doing, the Defendant was acting recklessly as that term is defined in Instruction No. 2.
Instruction No. 2 included the statutory definitions of “wantonly,” KRS 501.020(3), and “recklessly,” KRS 501.020(4), and defined complicity to mean “that a person is guilty of an offense committed by another person when, having a legal duty to prevent the conduct causing the result[,] fails to make a proper effort to do so.”
Appellant first asserts that the trial judge’s definition of complicity was improper because KRS 502.020(2) does not specifically say that a defendant “is guilty of an offense committed by another person” if the defendant fails in his duty to make a proper effort to prevent the other person’s conduct. In fact, inclusion of any definition of complicity in the instructions was surplusage, since the substantive instructions embodied the essentials of the definition. Nevertheless, we note that the title of KRS 502.020 is “Liability for conduct of another' — Complicity;” that subsection (2)(c) provides that a person “is guilty [365]*365of that offense when he ... [hjaving a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so” (emphasis added); and that the 1974 Official Commentary to KRS 502.020 provides that “[t]he purpose of subsection (2) is to make special provisions for complicity in an offense which has a prohibited result as an essential element.” (Emphasis added.)
Second, Appellant argues that the instructions erroneously failed to require the jury to determine the mental state of Kenneth Tharp at the time he killed Elaina Curtis, which Appellant asserts is an essential element of her guilt by complicity. The gravamen of this argument is that a condition precedent to a conviction of an offense by complicity is a finding by the jury that the principal actor is equally guilty of the same offense. Not so. The principal actor’s mental state with respect to his own conduct, or the degree of his criminal liability, is largely immaterial to the criminal liability of an accomplice or the degree thereof. As noted in Springer v. Commonwealth, Ky., 998 S.W.2d 439, 453 (1999), the common law generally held that an aider or abettor could not be convicted if the principal was acquitted. E.g., Rutland v. Commonwealth, Ky., 590 S.W.2d 682 (1979). However, even in the pre-penal code era, the degree of an accomplice’s liability was determined by his or her own mens rea and not that of the principal.
If one commits a crime and another is actually present aiding, abetting, assisting, or encouraging its commission, the latter thereby becomes a participant, a principal in the second degree, and his culpability is determined by his motives ....
Fuson v. Commonwealth, 199 Ky. 804, 251 S.W. 995, 997 (1923).
That proposition was codified in KRS 502.030(1):
In any prosecution for an offense in which the criminal liability of the accused is based upon the conduct of another person pursuant to KRS 502.010 and 502.020, it is no defense that:
(1) Such other person has not been prosecuted for or convicted of any offense based on the conduct in question, or has previously been acquitted thereof, or has been convicted of a different offense....
Although there was no common law equivalent to KRS 502.020(2)(c), it is obvious that KRS 502.030(1) applies as well to one whose guilt by complicity is premised upon a failure to perform a legal duty to prevent conduct as to one whose guilt is premised upon active participation in that conduct. And if an accomplice can be convicted despite the acquittal of the principal, it follows that the degree of the offense of which an accomplice is convicted does not depend upon the degree of which the principal is convicted. KRS 502.020(2) is modeled after what became Section 2.06(4) of the Model Penal Code.9 The Official Comment to that section includes the following:
Subsection (4) makes it clear that complicity in conduct causing a particular criminal result entails accountability for that result so long as the accomplice is personally culpable with respect to the result to the extent demanded by the definition of the crime. Thus, if the accomplice recklessly endangers life by rendering assistance to another, he can be convicted of manslaughter if a death results, even though the principal actor’s liability is at a different level. In effect, [366]*366therefore, the homicidal act is attributed to both participants, with the liability of each measured by his own degree of culpability toward the result.
Model Penal Code Pt. I § 2.06 Comment, at 321 (1985) (footnote omitted). It has been asserted that the purpose of Section 2.06(4) is to ameliorate the harshest aspects of the so-called “natural and probable consequence” doctrine, under which an accomplice is held criminally liable for a crime which he/she did not intend to aid or assist so long as the resultant crime was a natural and probable consequence of the crime he/she did intend to aid or assist.10 A. Rogers, Accomplice Liability for Unintentional Crimes; Remaining within the Constraints of Intent, 31 Loy. L.A. L.Rev. 1351, 1360, 1362 (1998). This view of the purpose of Section 2.06(4) is supported by the following statement in the Official Comment to Section 2.06:
One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it unless the case falls within the specific terms of Subsection (4).
Model Penal Code Pt. I § 2.06 Comment, at 311 (1985).
Thus, it is immaterial to Appellant’s criminal liability or the degree thereof whether Kenneth Tharp is ever convicted of criminal homicide for causing the death of Elaina Curtis, or, if so, of which degree of homicide he is convicted. To convict Appellant of wanton murder, the jury was only required to believe beyond a reasonable doubt that (1) Kenneth Tharp’s conduct resulted in Elaina Curtis’s death; (2) Appellant failed to make a proper effort to prevent that conduct; and (3) in so doing, Appellant, under circumstances amounting to aggravated wantonness, disregarded a substantial and unjustifiable risk that such conduct would result in Elaina Curtis’s death. The instructions accurately described the elements of the offense of which Appellant was convicted.
Finally, Appellant complains that the instructions were deficient in failing to require a finding that Appellant was “physically capable of performing” her duty to prevent the conduct causing her child’s death. KRS 501.030(1) provides:
A person is not guilty of a criminal offense unless:
(1) He has engaged in conduct which includes a voluntary act or the omission to perform a duty which the law imposes upon him and which he is physically capable of performing....
It is unclear whether Appellant’s argument in this regard is a claim that she was physically unable to prevent Kenneth Tharp from killing Elaina Curtis (a proposition which she did not assert at trial). If so, the concurring opinion in Lane v. Commonwealth, supra, points out that KRS 502.020(2)(c) does not anticipate courage or heroism, but requires only a proper (read “reasonable”) effort to protect the child from harm. Lane, supra, at 881 (Cooper, J., concurring). This requirement of a “proper” effort gives the jury leeway to consider any physical infirmities which [367]*367might mitigate a parent’s failure to protect his/her child from harm.
Regardless, the 1974 Official Commentary to KRS 501.030(1) explains that the purpose of that statute is “to remove from the field of criminal liability all social harms resulting from involuntary acts as well as those resulting from failures to perform moral, yet non-legal, duties.” Professors Lawson and Fortune tell us that “[t]he essence of subsection (1) is that there can be no crime without an act, though it is clear that failure to act under a legal duty satisfies the requirement.” Lawson and Fortune, supra, § 2—1(a), at 39. The instructions did not predicate Appellant’s guilt in this case upon an involuntary act or upon the failure to perform a non-legal duty, but upon her failure to act while under a legal duty to do so. KRS 501.030(1) has no application to this case.
We note that the trial instructions did not include as an element of the offense “[t]hat the Defendant, Myrna Tharp, was the parent and custodian of Elaina Curtis,” an essential element of complicity liability under KRS 502.020(2)(c). That issue was raised neither at trial nor in the briefs, presumably because Appellant did not deny being Elaina’s mother and legal custodian. Although it was error to omit this element from the complicity instructions, the omission does not rise to the level of palpable error. RCr 10.26.
III. EVIDENCE ISSUES.
None of the evidence issues of which Appellant complains were preserved for appellate review. Nor does a substantial possibility exist that the result would have been different if a successful objection had been interposed. RCr 10.26; Partin v. Commonwealth, Ky., 918 S.W.2d 219, 224 (1996).
A. Appellant complains that the emergency room records of the University of Kentucky Medical Center and Western Baptist Hospital pertaining to prior treatment of Elaina Curtis were introduced into evidence without being furnished to her before trial. If this is an assertion of a “discovery violation,” the simple answer is that the Commonwealth’s attorney filed notice in the record of his intent to introduce these records and that they were available for review and copying. Appellant then asserts that the records do not affirmatively reflect findings of the extent of bruising and the fractures which were discovered post mortem, thus they belie the Commonwealth’s attorney’s statement during closing argument that Appellant “must have noticed the bruises.” If this is an assertion of “improper closing argument,” there was ample evidence from other witnesses to support that argument. Regardless, nothing about this claim of error implicates the Kentucky Rules of Evidence.
B. Appellant complains of the trial court’s failure to conduct sua sponte a “Daubert hearing,” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), before permitting the assistant state medical examiner to render opinions as to the ages of the child’s bruises based upon their coloration. In support of this claim of error, Appellant cites passages from several medical journal articles which question the accuracy of such determinations. Presumably, the assistant medical examiner would have defended her opinions if challenged to do so and the trial judge’s ruling as to admissibility is far from a foregone conclusion. Although we find no reported Kentucky cases addressing this issue, such testimony has been routinely admitted in other jurisdictions. E.g., Clausen v. State, 50 Ark.App. 149, 901 S.W.2d 35, 36 (1995); [368]*368In Interest of D.C.N.K., 232 Ga.App. 85, 501 S.E.2d 268, 269-70 (1998); State v. Carr, 265 Kan. 608, 963 P.2d 421, 426 (1998); State v. Probst, 623 So.2d 79, 83 (La.Ct.App.1993); Commonwealth v. Lazarovich, 28 Mass.App.Ct. 147, 547 N.E.2d 940, 943 (1989); State v. Loss, 295 Minn. 271, 204 N.W.2d 404, 407 (1973); State v. Candela, 929 S.W.2d 852, 870 (Mo.Ct.App.1996); State v. Phillips, 74 Ohio St.3d 72, 656 N.E.2d 643, 654 (1995), cert. denied, 517 U.S. 1213, 116 S.Ct. 1835, 134 L.Ed.2d 938 (1996); State v. Orelup, 492 N.W.2d 101, 103 (S.D.1992); O’Neill v. State, 681 S.W.2d 663, 669 (Tex.App.1984). We decline to speculate on the outcome of an unrequested Daubert hearing, or to hold that the failure to conduct such a hearing sua sponte constitutes palpable error. We would further note that there was ample other evidence of prior physical abuse of Elaina Curtis, including the radiologist’s testimony as to the age of her bone fractures.
C. Along the same lines, Appellant complains of the trial court’s failure to conduct sua sponte a Daubert hearing before permitting Dr. Smock to testify regarding “pattern injuries.” Dr. Smock testified that he had received specialized training with respect to pattern injuries and that this method of determining the cause of injuries is generally accepted in the scientific community. This testimony satisfied the pre-Daubert “Frye test,” Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and we have expressed doubt that evidence admissible under Frye would be inadmissible under Daubert. Johnson v. Commonwealth, Ky., 12 S.W.3d 258, 262 (1999) (citing State v. Coon, 974 P.2d 386, 398 (Alaska 1999)). We find no palpable error in the failure to hold an unrequested Daubert hearing with respect to Dr. Smock’s testimony.
D. Appellant complains that the investigating officer, Detective Carroll, testified that (1) “it was obvious to us that we were investigating a homicide;” (2) “I knew it had to be one of the parents;” (3) “it was obvious that [Appellant] was not telling the truth [when she gave one of her five different statements to the police];” and (4) “I don’t think throwing a baby on the floor is playing.” Appellant argues that each of these statements violates the so-called “ultimate issue rule.” Suffice it to say that we abandoned that rule in Stringer v. Commonwealth, Ky., 956 S.W.2d 883, 891 (1997), cert. denied, 523 U.S. 1052, 118 S.Ct. 1374, 140 L.Ed.2d 522 (1998), and have since held that Stringer can be applied retrospectively because it only affects a rule of evidence, which is procedural, not substantive, in nature. Commonwealth v. Alexander, Ky., 5 S.W.3d 104, 106 (1999). Regardless, none of Detective Carroll’s statements rise to the level of palpable error. (1) All of the medical evidence indicated that the child died of a homicide, not of natural causes or mere negligence; (2) Appellant never posited that anyone except her husband injured or killed her child; (3) Appellant changed her story several times during her five statements to the police and changed it again at trial, thus, the statement that she was not telling the truth in one of her prior statements was but a truism which conformed to her own testimony; and (4) no one (except, apparently, Appellant) could seriously argue that throwing an infant to the floor constitutes “playing with the baby.”
E. The trial judge precluded Appellant’s stepfather from answering the following question: “Do you have an opinion as to whether or not Myrna is of a character that would permit that [abuse of her child] to happen?” We find no palpable error in the trial court’s ruling. In the [369]*369first place, the evidence sought to be elicited was more akin to “profile” evidence than character evidence. Pendleton v. Commonwealth, Ky., 685 S.W.2d 549 (1985). In the second place, in the absence of an avowal, we have no way of knowing the witness’s answer, thus, whether Appellant was prejudiced by its suppression.
Accordingly, the judgments of conviction and the sentences imposed by the McCracken Circuit Court are affirmed.
LAMBERT, C.J.; GRAVES, STUMBO and WINTERSHEIMER, JJ, concur.
KELLER, J., concurs by separate opinion with JOHNSTONE, J., joining that concurring opinion.