Delayed Disclosure, Context Evidence, and Expert–Lay Boundaries in Child Sexual Abuse Trials: Commentary on Airan Hernandez Mendez v. Commonwealth of Kentucky

I. Introduction

In Airan Hernandez Mendez v. Commonwealth of Kentucky (Supreme Court of Kentucky, Dec. 18, 2025), the Court affirmed a twenty‑year sentence for multiple sexual offenses against a young child. The opinion, authored by Justice Nickell, is significant not because it breaks radically new ground, but because it consolidates and clarifies several important strands of Kentucky criminal evidence law in the particularly fraught context of child sexual abuse prosecutions.

The case addresses four main issues:

• Whether testimony by the lead detective about “delayed disclosure” investigations impermissibly introduced Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence, and whether a treating physician’s testimony crossed the line from lay to undisclosed expert opinion in violation of KRE 701 and 702.
• Whether the evidence was sufficient to avoid a directed verdict on a charge of distributing obscene matter to a minor.
• Whether various “other bad acts” evidence—physical abuse of the children and their mother, alleged drugging of the mother, and grooming behavior—was properly admitted under KRE 404(b), and whether notice under KRE 404(c) was timely and adequate.
• Whether the trial court erred by refusing to instruct the jury on first‑degree sexual abuse as a lesser‑included offense of first‑degree sodomy.

The Court’s answers—affirming on all points—reinforce Kentucky’s longstanding skepticism of CSAAS, refine how treating physicians may offer opinion testimony, articulate how circumstantial and child‑level descriptions can sustain an obscenity charge, and reiterate both the breadth of admissible contextual “other acts” evidence and the limited circumstances in which lesser‑included instructions are required in sodomy cases.

II. Factual and Procedural Background

In 2020, Airan Hernandez Mendez and his twin brother moved into the home of his girlfriend, who lived with her young son and five‑year‑old twin daughters, M.R. and D.R. The girls called Hernandez Mendez “dad” or “stepdad.” According to M.R., their mother slept very soundly, particularly after Hernandez Mendez brought her water or sprayed a foul‑smelling substance from a pink spray bottle onto a sock and gave it to her, after which she would quickly fall asleep.

Shortly after M.R. turned six, Hernandez Mendez began sexually abusing her during the night while her mother was asleep. He would wake M.R., take her to the basement where beds were located, and there:

• Remove both his and M.R.’s clothing;
• Suck on M.R.’s breasts;
• Touch her in the areas “where [she] pee[s] and poop[s]” with his penis;
• Insert his penis into her mouth and anus, sometimes to ejaculation, which she described as a white, slimy substance coming from “the little hole in the top” of “the long thing;” and
• Digitally penetrate her anus with his fingers.

According to M.R., these assaults occurred “a lot of times” when she was six and seven. She also testified that her twin sister D.R. once awoke and witnessed the abuse. M.R. did not disclose the abuse initially because she feared Hernandez Mendez: he hit her, grabbed her hair, put a pillow over her face, and assaulted her mother. He threatened to throw her out of the house and to kill her and her family if she told anyone. When she asked why he was doing these things, he showed her videos “of dads doing that to their daughters, of boys doing it to grownup girls.”

In June 2022, while staying with her grandmother, M.R. disclosed abuse of both herself and her mother. When Child Protective Services did not respond quickly, the grandmother contacted Louisville Metro Police and took the twins to Norton Children’s Hospital. There, Dr. Britt Anderson conducted a medical examination. She found no visible injuries to M.R.’s genital or anal areas and, after consulting a child‑abuse specialist, discharged the girls. A police investigation led by Detective Michelle Rusch followed; the twins were removed from their mother’s care and placed with their grandmother, and each gave detailed forensic interviews describing the abuse.

Police later executed a search warrant at the home, recovering multiple electronic devices, storage media, a digital camera, adult sex toys, and a copy of the Kama Sutra, many located in the basement where the abuse allegedly occurred. Due to the passage of time, police did not attempt DNA collection. Forensic analysis of the devices uncovered pornographic images and videos.

A Jefferson County Grand Jury indicted Hernandez Mendez on numerous charges, including:

• Three counts of first‑degree sodomy;
• Two counts of first‑degree sexual abuse; and
• One count of distributing obscene matter to a minor;
• Along with a charge of intimidating a participant in the legal process.

In parallel family court proceedings addressing the girls’ safety, the twins gave inconsistent statements, at one point indicating the abuse had not happened. At trial, they testified they had lied to the Family Court Judge because they were afraid and did not fully understand the proceedings. The jury acquitted on the intimidation charge but convicted on the sodomy, sexual abuse, and obscene‑matter counts. The trial court imposed the jury’s recommended sentence of twenty years’ imprisonment. This appeal followed as a matter of right under Section 110(2)(b) of the Kentucky Constitution.

III. Summary of the Supreme Court’s Decision

The Supreme Court of Kentucky affirmed the conviction and sentence, resolving the four appellate issues as follows:

1. Detective and physician testimony (CSAAS and KRE 701/702)
   The Court held that:
   • Detective Rusch’s testimony about “delayed disclosure” cases and investigative techniques did not constitute prohibited CSAAS evidence under Kentucky law because she did not compare M.R. to other victims, did not opine on her credibility, and discussed only investigative methodology.
   • Dr. Anderson’s testimony, including brief anatomical explanations (e.g., the nature of anal mucosa and its tendency to heal quickly), was properly admitted. The trial court acted within its discretion in effectively qualifying her to offer that limited expert testimony, and there was no violation of KRE 701 or 702.
2. Directed verdict on distribution of obscene matter to a minor
   Applying the familiar Benham standard, the Court held that M.R.’s description of the videos as “nasty stuff,” her detailed description of the sexual acts Hernandez Mendez performed on her, and Detective Rusch’s testimony about pornography found on his devices constituted more than a “mere scintilla” of evidence. It was not “clearly unreasonable” for the jury to find that the material shown to M.R. was “obscene,” so a directed verdict was properly denied.
3. Admission of other bad acts evidence and KRE 404(c) notice
   The Court concluded that:
   • The Commonwealth’s pretrial notice of intent to use other‑acts evidence—though given less than a week before trial—was “reasonable” within the meaning of KRE 404(c), especially because the underlying evidence had been provided during discovery long before trial, and the defense in fact filed and argued a motion in limine.
   • Evidence that Hernandez Mendez physically abused the twins and their mother, allegedly drugged the mother, and showed preferential treatment to M.R. was properly admitted under KRE 404(b). The evidence was relevant to explain M.R.’s fear and delayed disclosure, to show how the abuse could occur within the household, and to present a “complete, unfragmented picture” of the crimes. Its probative value was not substantially outweighed by unfair prejudice.
4. Refusal to instruct on first‑degree sexual abuse as a lesser‑included offense of first‑degree sodomy
   The Court reaffirmed that penetration is not required for sodomy in Kentucky; only “contact” is necessary. Given M.R.’s clear testimony that Hernandez Mendez placed his penis in her mouth and anus and inserted his fingers into her anus, there was no evidentiary basis on which a reasonable jury could acquit of sodomy yet convict only of sexual abuse. Accordingly, the trial court did not abuse its discretion in refusing the requested lesser‑included instructions.

IV. Precedents and Authorities Cited

A. Prohibition on CSAAS Evidence: Bussey, Newkirk, Kurtz, and Miller

Kentucky has consistently rejected CSAAS evidence for four decades, beginning with Bussey v. Commonwealth, 697 S.W.2d 139 (Ky. 1985). CSAAS (Child Sexual Abuse Accommodation Syndrome), first described by Roland Summit in 1983, attempts to explain behaviors often observed in abused children—such as delayed disclosure, recantation, and secrecy.

In Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky. 1996), the Court stated that in “an unbroken line of decisions” it has expressed distrust of expert testimony purporting to determine criminal conduct based on perceived psychological syndromes. The concern is that such evidence intrudes on the jury’s role as arbiter of credibility and guilt.

Kurtz v. Commonwealth, 172 S.W.3d 409 (Ky. 2005), quoting Miller v. Commonwealth, 77 S.W.3d 566 (Ky. 2002), crystallized the core rule: a party may not:

“introduce evidence of the habit of a class of individuals either to prove that another member of the class acted the same way under similar circumstances or to prove that the person was a member of that class because he/she acted the same way under similar circumstances.”

Thus, testimony such as “most abused children delay reporting” is inadmissible when used to suggest that this child’s delayed disclosure means she was abused, or behaved “like” an abused child.

B. Lay vs Expert Testimony: KRE 701, KRE 702, and Cases like Khani, Kemper, Dixon, and McDaniel

KRE 701 governs lay opinion testimony, permitting it only if it is:

• Rationally based on the witness’s perception;
• Helpful to understanding testimony or deciding a fact in issue; and
• Not based on “scientific, technical, or other specialized knowledge” within the scope of KRE 702.

KRE 702, in turn, allows expert testimony where specialized knowledge will assist the trier of fact, and the witness is qualified by knowledge, skill, experience, training, or education and the testimony is reliable (as articulated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)).

The Evidence Rules Review Commission’s note to KRE 701 emphasizes that the key question is not whether the witness is an expert, but whether the testimony is expert in nature—that is, whether it is “scientific, technical, or other specialized knowledge.” If so, Rule 702 must apply.

Khani v. Alliance Chiropractic, 456 S.W.3d 802 (Ky. 2015), underscores this functional test. The note to KRE 701 explains that the point of 701(c) is to prevent parties from circumventing Daubert reliability requirements by labeling specialized testimony as lay opinion.

Several additional cases frame the trial court’s discretion:

• Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2008) – Trial courts have broad discretion in deciding whether to qualify a witness as an expert.
• Dixon v. Commonwealth, 149 S.W.3d 426 (Ky. 2004), citing Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) – Trial courts have “wide latitude” in how to test expert reliability and whether to hold a formal Daubert hearing.
• McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky. 2013) – When a treating physician is effectively qualified to give limited expert testimony, KRE 701(c)’s concern about smuggling in expert opinions through a putative lay witness is alleviated.

C. Directed Verdict Standard: Commonwealth v. Benham and Progeny

The directed verdict standard in Kentucky criminal cases is rooted in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991):

• The trial court must draw all fair and reasonable inferences in favor of the Commonwealth.
• For purposes of ruling on the motion, the court assumes the Commonwealth’s evidence is true, leaving questions of credibility and weight to the jury.
• There must be “evidence of substance”; if the Commonwealth offers only a “mere scintilla” of evidence, a directed verdict is required.
• On appellate review, the question is whether it would be “clearly unreasonable” for the jury to find guilt under the evidence as a whole. Only then is a directed verdict warranted.

Taylor v. Commonwealth, 617 S.W.3d 321 (Ky. 2020), reiterates that “more than a mere scintilla” is enough to survive a directed verdict motion. Southworth v. Commonwealth, 435 S.W.3d 32 (Ky. 2014), underscores that the Commonwealth may prove every element of a crime by circumstantial evidence; direct evidence is not required.

D. Other-Bad-Acts Evidence: KRE 404(b)/(c), Riggle, Bell, Matthews, Adkins, and Applegate

KRE 404(b) generally bars evidence of other crimes, wrongs, or acts to prove that a person acted “in conformity therewith” on a particular occasion—i.e., pure propensity evidence. It allows such evidence, however, for certain “other purposes,” such as motive, opportunity, intent, preparation, plan, or to present a complete account of the crime.

In Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994), and Riggle v. Commonwealth, 686 S.W.3d 105 (Ky. 2023), the Court emphasized that 404(b) evidence must be admitted cautiously, with an eye toward excluding material that is only propensity‑based. The trial court must assess:

• Relevance;
• Whether the prior bad act is sufficiently proved; and
• Whether the probative value is substantially outweighed by the danger of undue prejudice (KRE 403).

KRE 404(c) imposes an additional requirement in criminal cases: if the prosecution intends to introduce 404(b) evidence in its case‑in‑chief, it must give the defendant “reasonable pretrial notice.”

In Matthews v. Commonwealth, 163 S.W.3d 11 (Ky. 2005), the Court explained:

• The purpose of KRE 404(c) is to allow the defendant to file a motion in limine challenging admission of the proposed evidence.
• Even absent a formal notice letter, providing the evidence in discovery can constitute “actual notice” sufficient to satisfy 404(c), particularly when the defendant actually files a motion in limine based upon it.

Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003), quoting the Lawson evidence treatise, endorses the notion that KRE 404(b)(2) permits the Commonwealth to present a “complete, unfragmented picture” of the crime and the investigation, sometimes called the “res gestae” or “complete the story” doctrine.

Applegate v. Commonwealth, 577 S.W.3d 83 (Ky. App. 2018), citing Milby v. Mears, 580 S.W.2d 724 (Ky. App. 1979), stands for the proposition that appellate courts will not construct arguments for litigants or scour the record for support where a party offers only conclusory assertions without meaningful development.

E. Jury Instructions, Lesser-Included Offenses, and Sodomy: Turner, Holland, Sanders, Stieritz, Exantus, Sargent, Hulan, Miller, and Bills

RCr 9.54 requires the trial court to instruct the jury “in writing on the law of the case.” Kentucky decisions have elaborated this duty:

• Turner v. Commonwealth, 544 S.W.3d 610 (Ky. 2018) – The court must give instructions applicable to every state of the case that is “deducible or supported to any extent by the testimony.”
• Holland v. Commonwealth, 114 S.W.3d 792 (Ky. 2003) – Lesser‑included offense instructions are required only if, viewing the totality of the evidence, the jury might reasonably doubt guilt of the greater offense while believing beyond a reasonable doubt that the defendant is guilty of the lesser.
• Sanders v. Commonwealth, 301 S.W.3d 497 (Ky. 2010) – Courts need not instruct on theories not supported by evidence.
• Stieritz v. Commonwealth, 671 S.W.3d 353 (Ky. 2023) – Synthesizes these principles and reaffirms the standards for lesser‑included instructions.
• Exantus v. Commonwealth, 612 S.W.3d 871 (Ky. 2020) – A court has no duty to instruct on a lesser‑included offense merely because the defendant requests it.
• Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015), overruled on other grounds by Univ. Med. Ctr. v. Shwab, 628 S.W.3d 112 (Ky. 2021) – The standard of review for whether to give a requested instruction is abuse of discretion.

The substantive law of sodomy and sexual abuse is grounded in KRS Chapter 510:

• KRS 510.070 – First‑degree sodomy requires “deviate sexual intercourse” with another person by forcible compulsion or with a victim who is physically helpless or under twelve years of age.
• KRS 510.110 – First‑degree sexual abuse requires “sexual contact” under specified circumstances.
• KRS 510.010(1) – “Deviate sexual intercourse” means “any act of sexual gratification involving the sex organs of one person and the mouth or anus of another.”
• KRS 510.010(7) – “Sexual contact” means touching of a person’s intimate parts or the clothing covering those parts.

Crucially, Hulan v. Commonwealth, 634 S.W.2d 410 (Ky. 1982), held that penetration is not an element of sodomy under Kentucky’s Penal Code: “The only requirement [under the sodomy statute] is contact” (a principle reiterated in Miller v. Commonwealth, 283 S.W.3d 690 (Ky. 2009), and Bills v. Commonwealth, 851 S.W.2d 466 (Ky. 1993)).

The Court also cited American Jurisprudence for the point that a sexual assault victim need not use technical or anatomically precise terms; clear, non‑technical language can suffice to support a conviction (70C Am. Jur. 2d Sodomy § 54 (2023)).

V. Detailed Analysis of the Court’s Reasoning

A. Issue 1 – Detective and Physician Testimony under CSAAS and KRE 701/702

1. Detective Rusch’s “Delayed Disclosure” Testimony and the CSAAS Line

On cross‑examination, the defense sought to undermine the police investigation by highlighting what officers did not do: they did not swab the basement for DNA or use a “blacklight resource kit” to search for biological evidence, despite M.R.’s allegations of repeated abuse there. In response, Detective Rusch explained that in “delayed disclosure” cases—where victims report abuse months or years after it occurs—it is common not to pursue certain forensic techniques because the likelihood of finding usable biological evidence diminishes with time.

On redirect, she elaborated that most of her work in the Crimes Against Children Unit involves delayed disclosure cases and that investigative and evidence‑collection strategies differ from those used in “fresh” cases reported immediately after the assault.

The defense argued this amounted to CSAAS testimony: by referencing delayed disclosure and describing it as common in child abuse cases, the detective allegedly suggested that M.R.’s delay was typical of genuine victims and thus bolstered her credibility.

The Court rejected this characterization for two core reasons:

• No comparison of the victim to a class: Unlike the witness in Kurtz/Miller, who effectively described the “habit” of sexually abused children to delay reporting, Detective Rusch did not testify that abused children tend to delay reporting, nor that M.R.’s behavior was consistent with other victims. Her references to “delayed disclosure cases” described a category of investigations, defined by timing of report, not a psychological or behavioral profile of victims.
• No opinion on credibility, only investigative methodology: Her testimony was narrowly focused on why certain forensic steps were or were not taken in this investigation. It responded to a defense attack on the completeness and reliability of the police work, not to the believability of M.R.’s story. There was no statement that delayed disclosure makes allegations more credible, or that it is diagnostic of abuse.

Consequently, the Court held that her testimony did not “invade the province of the jury” in the sense condemned in Newkirk. It was properly admitted as relevant explanatory testimony about investigative practices, rather than as CSAAS evidence.

Practical significance: The decision draws a functional line:

• It remains impermissible in Kentucky to introduce expert opinion that children who behave in certain ways (e.g., delay reporting, recant) are “typical” abuse victims, or to use such syndromic evidence to support credibility.
• It is permissible, however, for investigators to explain how the timing of a report affects their forensic strategy, so long as they do not speculate about typical victim behavior or suggest that delayed disclosure signifies abuse.

This has clear implications both for prosecutors (who must train witnesses to avoid CSAAS‑type generalizations) and for defense counsel (who must be careful that cross‑examination attacking the thoroughness of investigations does not open the door to otherwise‑inadmissible context testimony).

2. Dr. Anderson’s Testimony: Hybrid Fact–Expert Witness and KRE 701/702

Dr. Anderson, a treating physician at Norton Children’s Hospital, testified about her examination of the twins. She discussed:

• Her education, training, and experience in pediatric sexual assault examinations;
• Her observations of M.R. and the steps she took during the exam;
• Her notes in the medical record and her course‑of‑treatment decisions; and
• The medical fact that many sexually abused children show no visible genital or anal injuries, because such tissues heal quickly.

When she briefly explained that anal tissue (mucosa) is similar to oral mucosa, is elastic (“stretchier”), and heals quickly—making a normal exam unsurprising even where abuse has occurred—the defense objected, arguing that she was testifying as an undisclosed expert in violation of KRE 701, and that any expert testimony required qualification under KRE 702 and Daubert.

The Court’s resolution proceeded in two steps:

1. Nature of the testimony: specialized, but within her expertise.
   The Court effectively acknowledged that Dr. Anderson’s explanation of mucosal tissue and the frequency of normal exams in abuse cases involved specialized medical knowledge. Under the Evidence Rules Commission’s note and Khani, that type of content falls under KRE 702, not KRE 701.
2. Qualification and trial‑court discretion.
   However, Dr. Anderson’s foundation was laid at trial: her education, training, and experience in pediatric sexual abuse exams were elicited. The trial court was therefore entitled to treat her as qualified to offer limited medical opinion testimony. Citing Kemper and Dixon, the Court stressed the “broad” and “wide” latitude given to trial courts in qualifying experts and managing reliability without always needing a full‑blown Daubert hearing.

Relying on McDaniel, the Court concluded there was:

• No violation of KRE 702: Dr. Anderson was sufficiently qualified to opine briefly about anal tissue and why a normal exam is common.
• No violation of KRE 701: the “evil” that 701(c) aims to prevent—sneaking unreliable scientific opinions in under the guise of lay testimony—was not present because the trial court effectively treated Dr. Anderson as an expert.

Practical significance:

• Treating physicians in child sexual abuse cases may offer both factual observations and limited medical opinions (e.g., about why no injuries are visible) when an adequate foundation is laid, even if they are initially presented as “fact witnesses.”
• Defense objections under KRE 701 will likely fail where the trial court has reasonably accepted the physician’s expertise under KRE 702, even absent a formal “expert designation” label.
• The decision implicitly endorses the common practice of treating physicians as “hybrid” witnesses—fact witnesses whose testimony naturally incorporates expert explanation grounded in treatment.

B. Issue 2 – Directed Verdict on Distribution of Obscene Matter to a Minor

The distribution‑of‑obscene‑matter charge arose from M.R.’s testimony that, when she asked Hernandez Mendez why he was abusing her, he showed her videos of “dads doing that to their daughters, of boys doing it to grownup girls,” which she described as “nasty stuff”—the same term she used to describe the sexual acts he performed on her. Forensic analysis of devices seized from the home revealed pornographic images and videos.

The defense argued a directed verdict was required because the Commonwealth presented no direct proof that the videos shown to M.R. were legally “obscene.” M.R.’s “vague” description, counsel argued, left that element unproved.

Applying Benham, the Court held:

• For directed‑verdict purposes, the trial court was required to assume the Commonwealth’s evidence—M.R.’s description and the detective’s testimony about pornography on Hernandez Mendez’s devices—was true and draw all reasonable inferences in the Commonwealth’s favor.
• M.R.’s testimony, in context, went beyond pure vagueness. She had just described in graphic, if childlike, terms the acts of oral and anal sodomy he committed against her. Her statement that the videos showed “nasty stuff” similar to what he did, involving adult men and daughters or grown women, allowed a reasonable inference that the videos depicted explicit sexual conduct.
• Detective Rusch’s testimony that pornographic images and videos were found on the seized devices corroborated that inference.

Collectively, this constituted more than a “mere scintilla” of evidence that the content shown to M.R. was obscene; at a minimum, it was not “clearly unreasonable” for the jury to find so. The Court therefore upheld the denial of the directed verdict motion.

Practical significance:

• In child‑victim cases, the Commonwealth need not produce the actual video or image to sustain an obscenity‑related charge. A child’s non‑technical but contextually clear description, coupled with corroborative forensic evidence, can satisfy the element.
• “Youthful parlance” (“nasty stuff”) will be interpreted in light of the child’s other testimony; juries may reasonably infer obscenity when the surrounding facts strongly suggest sexually explicit material.

C. Issue 3 – Other Bad Acts Evidence and KRE 404(b)/(c)

1. Notice under KRE 404(c): “Reasonable” and “Actual” Notice

Less than a week before trial, the prosecution filed formal KRE 404(c) notice of its intent to introduce several categories of other‑acts evidence:

• Physical abuse of the twins and their mother;
• Alleged drugging of the mother using a foul‑smelling chemical on a sock;
• Preferential treatment of M.R., framed as grooming behavior.

The defense argued this notice was untimely because the Commonwealth had possessed the underlying evidence for over eighteen months. Thus, the notice allegedly failed the “reasonable pretrial notice” requirement and the evidence should have been excluded.

The Court disagreed, relying heavily on Matthews:

• All of the challenged evidence had been provided to the defense in discovery long before trial. It was therefore “not new discovery sprung on him at the eleventh hour.”
• The defense filed a motion in limine seeking to exclude the 404(b) evidence and fully argued the issue before the trial court.
• The core purpose of 404(c) notice—affording the defendant an opportunity to challenge admissibility via motion in limine—was therefore served.

Under Matthews, receipt of the underlying evidence in discovery can constitute “actual notice” sufficient to satisfy KRE 404(c). The Court agreed with the trial court that, in these circumstances, the Commonwealth’s combination of early discovery and later formal notice satisfied the “reasonable notice” standard.

Practical significance:

• Formal 404(c) letters given shortly before trial will often be upheld if the defendant has long possessed the underlying evidence and in fact litigates its admissibility pretrial.
• Defense counsel should not assume that late formal notice alone will secure exclusion; the key question is whether they had a fair chance to move in limine and prepare.

2. Admissibility under KRE 404(b): Physical Abuse, Drugging, and Grooming

The Court then addressed whether the other‑acts evidence was properly admitted substantively.

a. Physical abuse of the twins and their mother

The Commonwealth argued that evidence of physical abuse was relevant to:

• Explain M.R.’s fear of Hernandez Mendez and her delayed disclosure;
• Provide the jury with a complete picture of the household dynamics and her belief that he would carry out his threats;
• Contextualize why a young child might not resist or report the sexual abuse.

The defense countered that physical abuse did not prove any element of the charged sexual offenses or intimidation, and was therefore irrelevant and unduly prejudicial.

The Court sided with the Commonwealth, emphasizing:

• The physical abuse evidence was not introduced to prove bad character or propensity. Instead, it explained M.R.’s state of mind (fear) and supplied context for her delayed disclosure.
• Without this evidence, the jury would be left to wonder why M.R. was so afraid or why she believed he would make good on his threats; this would present an artificially sanitized version of events.
• KRE 404(b)(2) and Adkins permit the Commonwealth to present a “complete, unfragmented picture of the crime and investigation.” Household violence was inextricably intertwined with the sexual abuse and the child’s behavior.
• Given this probative value, the trial court did not abuse its discretion in finding that the risk of unfair prejudice did not substantially outweigh the probative value (KRE 403 balancing).

b. Alleged drugging of the mother and preferential treatment of M.R. (grooming)

The Commonwealth also introduced evidence that:

• Hernandez Mendez sometimes provided the mother with a substance (via water or a sprayed sock) that caused her to sleep deeply; and
• He gave M.R. special or preferential treatment, which the prosecution characterized as grooming behavior to make her more compliant with his sexual demands.

These acts explained how he could repeatedly abuse M.R. in a home where other adults were present—by incapacitating the mother—and how he cultivated control over M.R. herself through grooming.

The defense devoted little argument to these categories on appeal, offering only bare assertions of irrelevance and lack of corroboration without substantive legal development or citation. Citing Applegate, the Court declined to “search the record to construct [the defendant’s] argument for him” or embark on a “fishing expedition” to find support.

On the record and arguments actually presented, the Court concluded that the trial court did not abuse its discretion in admitting this evidence as relevant context under KRE 404(b).

Practical significance:

• In child sexual abuse cases, Kentucky courts are willing to admit evidence of household violence, incapacitation of caregivers, and grooming behaviors as part of the “complete story,” particularly to explain victim behavior (fear, delay, compliance) and the feasibility of ongoing abuse.
• Defense counsel must present well‑developed, case‑specific arguments—grounded in KRE 401, 403, and 404(b)—if they wish to exclude such evidence on appeal; cursory assertions will likely be deemed insufficient.

D. Issue 4 – Lesser-Included Instructions: Sexual Abuse vs. Sodomy

The defense requested that the jury be instructed on first‑degree sexual abuse as a lesser‑included offense for two of the first‑degree sodomy counts. The theory was that the jury might interpret M.R.’s testimony as describing mere touching of her anus with a penis or fingers, without the “deviate sexual intercourse” necessary for sodomy.

The Court began by revisiting the definitions:

• Sodomy in the first degree (KRS 510.070) requires deviate sexual intercourse—sexual gratification involving a sex organ and the mouth or anus—under specified circumstances (here, victim under twelve).
• Sexual abuse in the first degree (KRS 510.110) requires “sexual contact,” not deviate sexual intercourse.
• Penetration is not required for sodomy in Kentucky; mere contact suffices (Hulan; Miller; Bills).

The key evidentiary question was whether the jury could reasonably find only “sexual contact” but not “deviate sexual intercourse,” such that a lesser‑included instruction was warranted under Holland and Stieritz.

M.R. testified that:

• His “private part” (penis) touched her “where [she] pee[s] and poop[s]”; and
• He put his penis in her mouth and anus, and his fingers inside her anus and “wiggled them around.”

The defense argued that an eight‑year‑old’s basic anatomical vocabulary left room for ambiguity: perhaps the jury might think only external touching occurred.

The Court rejected that argument, relying on the principle that a victim “is not required to use technical or anatomically accurate terminology” when the words used are clear. Here, M.R.’s descriptions—placing his penis “in” her mouth and anus and inserting his fingers “inside” and wiggling—were sufficiently clear to establish deviate sexual intercourse as defined in KRS 510.010(1), at least as to the sodomy counts in question. Given the “contact‑not‑penetration” rule, even brief contact of the penis with the mouth or anus is enough.

Under the totality of evidence, there was no reasonable basis for a jury to:

• Harbor a reasonable doubt about sodomy (deviate sexual intercourse by contact with the mouth/anus); yet
• Be convinced beyond a reasonable doubt only of sexual abuse (mere sexual contact without deviate sexual intercourse).

Therefore, the trial court had no duty to instruct on the lesser‑included offense of first‑degree sexual abuse for those sodomy counts. Refusing the requested instructions was not an abuse of discretion.

Practical significance:

• In sodomy prosecutions involving oral or anal contact with a child victim, where the victim clearly describes such contact, courts are unlikely to provide a lesser‑included instruction on sexual abuse unless there is some distinct evidentiary basis for limiting the conduct to mere touching of intimate parts.
• Defense requests for lesser‑included instructions cannot be granted merely to offer the jury a compromise verdict; they must be anchored in a plausible evidentiary view under which the greater offense is not proved but the lesser is.

VI. Simplifying Key Legal Concepts

1. Child Sexual Abuse Accommodation Syndrome (CSAAS)

CSAAS is a psychological theory describing common behavioral patterns in sexually abused children, such as secrecy, delayed disclosure, recantation, and ambivalence. Some jurisdictions admit expert testimony about CSAAS to explain what might otherwise seem inconsistent or suspicious behavior (e.g., why a child delayed reporting).

Kentucky, however, has long rejected CSAAS evidence in criminal trials. The concern is that such testimony effectively tells the jury, “this child behaves like an abused child,” which is too close to an opinion that abuse occurred and improperly bolsters credibility.

2. Lay vs. Expert Opinion (KRE 701 and 702)

• Lay opinion (KRE 701): Non‑expert witnesses can give opinions only when those opinions are based on their own observations, help explain something to the jury, and do not rely on specialized knowledge. Example: a neighbor saying someone “seemed drunk” based on slurred speech and stumbling.
• Expert opinion (KRE 702): Specialists (like doctors or engineers) can give opinions based on scientific, technical, or other specialized knowledge if that knowledge helps the jury and is shown to be reliable (Daubert standard).

The line matters because expert testimony carries a veneer of authority and must be screened for reliability, while lay opinions are more limited and easier to admit.

3. Directed Verdict in Criminal Cases

A directed verdict is a ruling by the judge that the prosecution’s evidence is legally insufficient, so the case (or a count) should not be submitted to the jury. Under Benham:

• The judge assumes all prosecution evidence is true and asks whether a reasonable jury could convict.
• If it would be “clearly unreasonable” for any reasonable jury to find guilt, a directed verdict is required.
• “Scintilla” of evidence—tiny, insubstantial—is not enough; there must be “evidence of substance.”

4. KRE 404(b) and 404(c): Other-Bad-Acts Evidence and Notice

KRE 404(b) says the prosecution generally cannot introduce evidence of past bad acts just to show that a defendant is the “type of person” who would commit the charged crime. But the rule allows other‑acts evidence for specific, non‑propensity purposes, such as:

• Motive or intent;
• Plan, preparation, or opportunity;
• Identity (e.g., a unique modus operandi);
• Explaining the victim’s behavior or the context of the crime (“complete the story”).

Because such evidence can be very prejudicial, KRE 404(c) requires the prosecution to give “reasonable pretrial notice” of its intent to use it in its main case, so the defense can challenge it before trial in a motion in limine.

5. Lesser-Included Offenses and Jury Instructions

A lesser‑included offense is a crime that is, legally, a subset of a greater crime—for example, theft might be a lesser‑included of robbery. Courts must sometimes instruct juries on such lesser offenses so jurors can choose between “greater,” “lesser,” or “not guilty.”

In Kentucky, a lesser‑included instruction is required only if:

• The evidence could reasonably support a finding that the defendant did not commit the greater offense; but
• The same evidence would still support conviction of the lesser offense beyond a reasonable doubt.

If all reasonable interpretations of the evidence either support guilt of the greater offense or complete acquittal (with no middle ground), a lesser‑included instruction is not required.

6. Sodomy vs. Sexual Abuse

• Sodomy (under KRS 510.070): Involves “deviate sexual intercourse,” which is sexual gratification involving the sex organs of one person and the mouth or anus of another. In Kentucky, mere contact is enough; penetration is not required.
• Sexual abuse (under KRS 510.110): Involves “sexual contact,” meaning touching intimate parts or the clothing covering them, for sexual gratification, but not oral/anal sex as defined in deviate sexual intercourse.

7. Obscene Matter

“Obscene” typically refers to material that:

• Depicts sexual conduct in a patently offensive way according to community standards;
• Appeals to prurient (shameful or morbid) interest in sex; and
• Lacks serious literary, artistic, political, or scientific value.

In child cases, juries can infer obscenity even from a child’s non‑technical descriptions if the overall context and other evidence (e.g., porn found on devices) strongly suggest explicit sexual content.

VII. Likely Impact and Practical Implications

1. Reinforcing the Limits on CSAAS While Allowing Contextual “Delayed Disclosure” Testimony

The decision reaffirms Kentucky’s categorical rejection of CSAAS as a psychological syndrome used to bolster victim credibility. At the same time, it signals that:

• Investigators may testify about how the timing of a report (months or years after the event) affects their investigative strategy and evidence‑collection methods; and
• Such testimony is permissible so long as it does not express generalized opinions about the behavior of “abused children” and does not implicitly label a complaining witness as a typical abuse victim.

This nuanced approach allows juries to understand why forensic evidence may be scant in delayed‑report cases without inviting experts to vouch for the complainant’s credibility.

2. Treating Physicians as Hybrid Fact–Expert Witnesses

Hernandez Mendez confirms that treating physicians in child sexual abuse cases can:

• Testify as fact witnesses about their observations and actions; and
• Offer limited expert explanations about medical concepts closely tied to their treatment (e.g., healing of mucosal tissue, normal vs. abnormal findings), provided an adequate foundation for expertise is laid.

Practically, this reduces the risk that courts will exclude such explanations on the ground that the physician was “only” a lay witness, especially where cross‑examination explores those topics and the trial court has implicitly or explicitly accepted the physician’s expertise.

3. Broader Acceptance of Contextual 404(b) Evidence in Child Sexual Abuse Cases

The Court’s endorsement of physical abuse, alleged drugging, and grooming as admissible contextual evidence under KRE 404(b) confirms a trend: in child sexual abuse cases, courts are willing to admit a wider range of “other acts” when they:

• Explain the victim’s fear, delayed reporting, or compliance;
• Show how the abuse could be perpetrated within a household (e.g., incapacitating caregivers); or
• Paint a full picture of the relationship and environment (grooming, household violence).

This is beneficial for the prosecution but increases the need for careful KRE 403 balancing and for defense counsel to anticipate and robustly challenge the scope and detail of such evidence.

4. Evidentiary Thresholds for Obscenity in Child Testimony

The ruling on the obscenity count shows that Kentucky courts are prepared to:

• Accept circumstantial evidence and child‑appropriate descriptions to prove that content is obscene; and
• Uphold convictions without production of the actual images or videos, if testimony and forensic findings support a reasonable inference of explicit sexual content.

Prosecutors can therefore charge distribution of obscene matter to a minor even where the specific media cannot be recovered, so long as the child’s description and digital forensics support the inference.

5. Strengthening the “Contact, Not Penetration” Rule for Sodomy and Limiting Lesser-Included Instructions

By applying Hulan, Miller, and Bills in a modern child‑victim case, the Court reaffirms that:

• Any sexualized contact between a sex organ and the mouth or anus satisfies the deviate sexual intercourse element of sodomy; penetration is not needed.
• Where the child clearly describes such oral or anal contact, there is usually no reasonable path for the jury to find only “sexual contact” but not “deviate sexual intercourse.”

Practically, this constrains the availability of compromise verdicts in such cases. Trial courts will not be required to submit lesser sexual‑abuse instructions merely because the defendant requests them; there must be a genuine evidentiary basis for the lesser‑only scenario.

6. Procedural Discipline: Notice, Motions in Limine, and Appellate Preservation

The Court’s treatment of 404(c) notice and underdeveloped appellate argument highlights procedural lessons:

• Discovery that includes the other‑acts evidence can satisfy 404(c)’s notice requirement, particularly if the defense files a motion in limine. Defense counsel should not assume late formal notice will automatically yield exclusion.
• On appeal, generalized or conclusory challenges—unsupported by detailed legal analysis and record citations—will not suffice. Courts will not construct or search out arguments that counsel did not make.

VIII. Conclusion

Airan Hernandez Mendez v. Commonwealth of Kentucky stands as a comprehensive reaffirmation and clarification of several important aspects of Kentucky criminal evidence law in child sexual abuse prosecutions:

• It maintains Kentucky’s firm prohibition on CSAAS evidence while allowing investigators to explain delayed‑disclosure investigative strategies that do not comment on a child’s credibility.
• It confirms that treating physicians may testify as hybrid fact–expert witnesses, offering limited medical explanations so long as they are properly qualified under KRE 702.
• It underscores that circumstantial evidence and child‑appropriate descriptions can sustain an obscenity charge, and that directed verdicts are appropriate only where conviction would be “clearly unreasonable.”
• It endorses robust use of contextual 404(b) evidence—physical abuse, incapacitation, grooming—to present a “complete, unfragmented picture” of the crime and the victim’s state of mind, provided notice is reasonable and probative value is not substantially outweighed by unfair prejudice.
• It reiterates the “contact, not penetration” rule for sodomy and tightens the circumstances under which lesser‑included sexual abuse instructions must be given when oral or anal contact is clearly described.

Taken together, these holdings provide trial courts, prosecutors, and defense counsel with clearer guidance on managing expert and lay testimony, contextual bad‑acts evidence, and jury instructions in some of the most sensitive and complex criminal cases. While the Court did not fundamentally alter existing doctrine, it fortified and elaborated it in ways that will shape the conduct and review of child sexual abuse trials in Kentucky going forward.