concurring in result only:
Although I agree that this case should be reversed and remanded, I must ultimately concur in result due to the majority’s analysis with respect to Driver’s requested instruction for extreme emotional disturbance (EED). Moreover, because I would hold that Driver was entitled to an instruction on EED, I also believe that the KRE 404(b) evidence of the incident involving his 1995 conviction for assault and wanton endangerment of his former wife would then be admissible on remand to refute Driver’s assertion of EED.
A. Instruction on EED
In concluding that Driver was not entitled to an EED instruction because there was no evidence presented that Driver first learned of Vera’s extramarital affair immediately preceding (or on the same day of) the altercation, the majority implicitly retreats into the antiquated “heat of passion” doctrine. However, “[a]lthough EED is essentially a restructuring of the *891old common law concept of ‘heat of passion,’ the evidence needed to prove EED is different.” Greene v. Commonwealth, 197 S.W.3d 76, 81 (Ky.2006). No case better illustrates the liberalization of the eviden-tiary threshold than Thomas v. Commonwealth, 170 S.W.3d 343 (Ky.2005).
In Thomas, this Court concluded that the defendant was entitled to an EED instruction due, in part, to an event that did not occur immediately preceding (or on the same day of) the altercation. In that case, the defendant shot two fellow bar patrons after they viciously beat him while he waited outside for a taxi, causing him to lose consciousness at one point and blood to “explode” from his surgically repaired left eye. Id. at 348. Importantly, the defendant’s eye had been injured at some point prior to this incident when he was mugged in a hotel parking lot in Florida. Id. at 347. We considered the previous mugging “relevant to whether there was a reasonable justification or excuse [trigger] under the circumstances as he believed them to be” and held that the trial court erred by refusing to instruct on EED. Id. at 350 (internal quotations omitted).
Here, even though the record does not exactly identify when Driver learned of the affair, it is undisputed that the altercation arose while arguing about the affair. In light of Thomas (and common sense), then, there was sufficient evidence for the jury to believe that Driver first learned of the affair immediately preceding (or on the same day of) the altercation. Simply put, such a conclusion could reasonably be drawn from the fact that the fight stemmed from an argument about the affair.
B. Prior Bad Acts Evidence
Because I would hold that Driver was entitled to an instruction on EED, I also believe that the KRE 404(b) evidence of the incident involving Appellant’s conviction in 1995 for assault and wanton endangerment of his former wife would be admissible on remand. Specifically, the Commonwealth could introduce the two incidents involving Vera, as well as the fact that Driver had beaten his former wife (Melinda) with a rifle and a baseball bat, to contradict Driver’s argument that the altercation here was brought on by EED. However, the incident wherein Driver broke into his former home is insufficiently similar to the altercation discussed herein for its probative value not to be substantially outweighed by the potential for undue prejudice. See KRE 403.
In summation, I believe the trial court abused its discretion by denying Driver’s request for an instruction on EED. Because Driver was entitled to an instruction (and the Commonwealth could then introduce the noted KRE 404(b) evidence), I concur in result only.