Discretionary Review was granted the Commonwealth in this case after an adverse ruling in the Court of Appeals.
The Appellee/Defendant, Ronald Eugene Elmore, had originally appealed a conviction from the Jefferson Circuit Court alleging that the trial court improperly gave an instruction under KRS 508.040 (assault under extreme emotional disturbance) which mitigates a conviction for assault under KRS 508.010 (assault in the first degree), 508.020 (assault in the second degree), and 508.030 (assault in the fourth degree).
Elmore argued to the Court of Appeals that only he had the right to request an instruction under KRS 508.040 (extreme emotional disturbance) and that it was error for the trial court to grant such an instruction on the Commonwealth’s request and without his consent.
The Court of Appeals accepted the argument of Elmore and reversed the trial court in reliance upon Montague v. Commonwealth, Ky., 332 S.W.2d 543 (1960). We reverse.
Reliance upon Montague in this action is erroneous. That case held that an instruction should not be given unless there was substantial evidence to support such an instruction. It did not stand for the proposition that only the Defendant could determine which instructions the trial court should give.
The Court of Appeals determined that Vick v. Commonwealth, 236 Ky. 436, 33 S.W.2d 297 (1930), was not applicable, but we disagree. Vick is one of a long line of cases which hold, “... it is the duty of the trial court to instruct on such defense whether it be supported by evidence presented by the accused, or introduced on behalf of the commonwealth.” [Id., 33 S.W.2d at p. 299; Trimble v. Commonwealth, Ky., 447 S.W.2d 348 (1969) p. 350; Cody v. Commonwealth, Ky., 449 S.W.2d 749 (1970) p. 751; Reed v. Commonwealth, Ky., 738 S.W.2d 818 (1987) p. 823].
The defendant, Elmore, has argued on appeal that it was a part of his trial strategy, because he was a persistent felony offender under KRS 532.080, to reject an instruction under KRS 508.040 allowing extreme emotional disturbance as a mitigating factor. He insists that the jury should have been required to find him either guilty of a higher degree of assault or not guilty by reason of self defense, and that the extreme emotional disturbance instruction allowed a compromise verdict and subjected him to PFO penalty enhancement.
However, that was not the only option given the jury. The jury was also instructed under KRS 508.030, assault in the fourth degree, which is a Class A misdemeanor, to which Elmore did not object. Conviction under this statute would not have triggered the PFO enhancement, but the jury chose not to find under that instruction. It believed that Elmore was guilty of a more serious crime.
If this was the strategy of Elmore, it doesn’t appear in the trial court record. Further, if Elmore was serious in attempting to use this strategy, he could have made a fully informed waiver of this defense as discussed in Dean v. Commonwealth, Ky., 777 S.W.2d 900 (1989), p. 908 and 910, to properly preserve the record. This he chose not to do and his failure was not prejudicial under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
*185On appeal Elmore tried to compare the defense of extreme emotional disturbance to that of insanity or mental illness, which requires notice by the defendant and informed waiver of that defense, once it is raised. {Dean, surpa). But the statutes are different and require different burdens of proof. The extreme emotional disturbance statute does not require notice by the defendant and doesn’t depend upon expert witnesses to prove it. Its purpose is to help a defendant by reducing the sanctions for assault. It does not provide a complete defense to an assault charge.
There is enough proof in the record, in reliance upon Engler v. Commonwealth, Ky., 627 S.W.2d 582 (1982), to justify the giving of the instruction in question and it was not sufficiently prejudicial to compel a reversal of the trial court. Smith v. Commonwealth, Ky., 737 S.W.2d 683, 688 (1987).
No complaint is made by Elmore as to the trial itself, but solely to the one instruction which was intended for his benefit. The alleged prejudice occurred after the guilty jury verdict and solely because of the PFO statute which required an enhancement of the penalty. The record indicates that Elmore has been convicted of four prior felonies in the ten years before this incident took place. He chose not to let the jury fix his PFO punishment, but allowed the trial court to do so. He was given the minimum sentence of ten (10) years. He has not complained of that.
Elmore was guaranteed a fair trial, which he received, but not a result with which he agrees. McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977).
The opinion of the Court of Appeals is reversed and the judgment of the Jefferson Circuit Court is affirmed.
LAMBERT, SPAIN and WINTERSHEIMER, JJ„ concur. LEIBSON, J., concurs in results only and files a separate concurring opinion. COMBS, J., dissents with a separate dissenting opinion in which STEPHENS, C.J., joins.