dissenting.
I respectfully dissent upon grounds that there was an adequate tender of an instruction upon involuntary manslaughter and that there was a sufficient dispute as to the matter of intent as to require that such instruction be given to the jury. Although the evidence was sufficient to permit a reasonable jury to conclude that Mauricio did, in fact, knowingly and intentionally kill Hughes, a different, but also reasonable, trier of fact might conclude to the contrary.
With respect to the tender of the instruction, trial counsel tendered as Instruction 10, the following:
“Instruction No. 3.09 Involuntary Manslaughter
3. Battery ... (Part one)” (Record 101)
The trial court noted that, in his view, the tender was “not an adequate tender.” Record at 567. The trial court erred in this conclusion. It is clear that trial counsel was seeking to incorporate by reference, rather than duplicating verbatim, Indiana Pattern Jury Instructions-Criminal No. 3.09 (1993 Supp.), and to reflect that the killing occurred while the defendant was committing or attempting to commit Battery as a Class C felony pursuant to I.C. 35-42-2-1(3). This procedure is specifically authorized by Rule 51(E) of the Indiana Rules of Trial Procedure, which reads as follows:
“Any party requesting a trial court to give any instruction from the Indiana Pattern Jury Instructions, prepared under the sponsorship of the Indiana Judges Association, may make such request in writing without copying the instruction verbatim, by merely designating the number thereof in the publication.”6
The instruction was a correct statement of law and Mauricio was entitled to have it given for the reason that involuntary manslaughter is an included offense of murder. Baker v. State (1991) Ind.App. 569 N.E.2d 369. Where, as here, the killing is accomplished by a shooting, such constitutes a battery and renders involuntary manslaughter an included offense of the murder charge. Lynch v. State (1991) Ind., 571 N.E.2d 537; Brown v. State (1995) Ind.App., 659 N.E.2d 652; Simpson v. State (1994) Ind.App., 628 N.E.2d 1215. The sole distinguishing element between murder and involuntary manslaughter in such circumstances is the intent to commit the greater offense. Meriweather v. State (1995) Ind.App., 659 N.E.2d 133.
The majority cites Lahr v. State (1994) Ind.App., 640 N.E.2d 756, and correctly so, for the proposition that failure to include tendered instructions in the appellate brief waives the error, if any. In Lahr, however, the instruction sought was not merely a straightforward Pattern Instruction defining the elements of Assisting a Criminal (Pattern Instruction No. 5.21) but was, rather, a request that the jury be instructed that “if the evidence warranted, they could find Lahr guilty of assisting a criminal as a lesser-included offense of the charged crime of Conspiracy to commit murder.” 640 N.E.2d at 763. The instruction requested was therefore apparently a combination of at least two general Pattern Instructions — the Assisting a Criminal instruction and an Included Offenses instruction (Pattern Instruction 13.27). The particular phrasing of such a hybrid becomes the subject of careful analysis as to its propriety and applicability. The propriety is therefore not a clear-cut decision as is true of the tender of a straightforward pattern instruction.
Be that as it may, and most importantly, despite its recitation of the general waiver principle, the Lahr court proceeded to discuss the substantive merits of the requested *1335instruction and did not decide the issue upon the concept of waiver. To the same effect is Riley v. State (1987) Ind., 506 N.E.2d 476, wherein our Supreme Court noted the waiver principle but proceeded to hold that the tendered lesser offense instructions were correctly refused.
The waiver principle contained within Ind.Appellate Rule 8.3(A)(7) is not a rigid or directory provision. As noted in Sedelbauer v. State (1983) Ind.App., 455 N.E.2d 1159, 1163, quoting from Davis v. State (1976) Ind., 265 Ind. 476, 355 N.E.2d 836:
“We invoke Appellate Rule 8.3 to hold an appellant’s specification of error waived only when we find his non-compliance with the rule sufficiently substantial to impede our consideration of the issue raised. In this ease we find that the issue of the propriety of this instruction is presented in a manner sufficiently clear to allow us to reach the substance of the appellant’s contention.”
The case before us calls for application of the same reasoning and warrants consideration of the issue.
Notwithstanding its conclusion that the instruction tender was inadequate, the trial court nevertheless considered the giving of an involuntary manslaughter instruction but indicated an inclination to refuse the instruction in light of the evidence as to intent. Record at 572-574. Trial counsel had correctly observed that a given defendant might intend to shoot someone but not intend to kill them and alluded to the separate charge filed by the State which alleged the separate shooting injury to Britt as a battery rather than, presumably, an attempted murder. The court, however, apparently seized upon the evidence that Mauricio walked close to the victim and fired three times.
While I might agree that such evidence points strongly to the existence of the culpability required for a murder conviction, I am unwilling to conclude that the evidence permits no other reasonable conclusion as to intent.
If this record reflected evidence that the car-wash meeting had been pre-arranged for purposes of a “head-to-head” confrontation, contemplating firearms, I might have eon-eurred. I might surmise that this was, in part, a “gang” controversy and a preconceived battle which led to Hughes’ death. That surmise would favor a concurrence. But the State’s proof does not permit me to elevate my surmise to a reasonable inference of the facts surmised.
Given the circumstances of prior shooting incidents involving the defendant, of the nature of the physical confrontations between his brother and Britt and Hughes, and the fact that Mauricio testified he thought Britt had a firearm and that Hughes did in fact have a gun and was using it to beat his brother, I believe that the element of intent was in genuine evidentiary dispute. Lynch, supra, 571 N.E.2d 537; Brown, supra, 659 N.E.2d 652. The testimony of the Mauricio brothers was not of such “incredible dubiosity” or so “inherently unbelievable” as to be rejected out-of hand as a matter of law. See Davis v. State (1995) Ind., 658 N.E.2d 896. The jury is entitled to believe or disbelieve evidence presented by the State as well as to believe or disbelieve that presented by the defendant. Harris v. State (1993) Ind., 617 N.E.2d 912; Owens v. State (1989) Ind.App., 543 N.E.2d 673. It is well established that a conviction may be sustained upon the uncorroborated testimony of a single witness. Taylor v. State (1993) Ind.App., 614 N.E.2d 944. It is not necessary that the single witness be an objective disinterested party. A conviction may be supported even if the sole witness is the victim. McKinney v. State (1990) Ind., 558 N.E.2d 829. So too, a given jury may choose to believe the testimony of the defendant and to acquit or find him guilty of a lesser offense. See Davidson v. State (1991) Ind., 580 N.E.2d 238. It is the prerogative of the jury to weigh the evidence and to determine who, in their view, is telling the truth. Graves v. State (1984) Ind., 472 N.E.2d 190. In my view there is a sufficient, genuine evidentiary dispute so as to render refusal to give the involuntary manslaughter instruction reversible error.
I would reverse the murder conviction and remand for a new trial.
. Rule 21 of the Indiana Rules of Criminal Procedure, provides:
"The Indiana rules of trial and appellate procedure shall apply to all criminal appeals so far as they are not in conflict with any specific rule adopted by this court for the conduct of criminal proceedings.”
Crim.R. 8(D) states:
“Requested instructions must be reduced to writing
The request made here was in writing and, of course, all of the Indiana Pattern Jury Instructions are in written form. The request therefore conforms both to Crim.R. 8(D) and T.R. 51(E).