concurring in result.
I do not agree that by not filing a motion to dismiss the duplicitous indictment or by not objecting to the verdict forms, Townsend waived any error. Because the jury, however, convicted him of only one battery, Townsend was not prejudiced by the duplicity.
As the two batteries were charged, and before the evidence unfolded, it was conceivable that Townsend did in fact commit batteries upon both Skye Turney and Brian
*51Turney, but did so by a single act. In such instance, a single offense would have been committed. However, given a charge such as that before us, it has been said that the law assumes that two distinct batteries have been committed as two distinet offenses. Hughes v. State (1937) 212 Ind. 577, 10 N.E2d 629. Until the facts are brought forward, however, one cannot know whether the assumption is correct. If, in fact, two distinct offenses were com-. mitted, the charge is duplicitous.
The law permits a defendant to await the prosecution's proof before committing to a legal position which may or may not be well founded. As in Hughes v. State, supra, a defendant is entitled to tender and receive instructions which contemplate an arguably duplicitous charge. A defendant does not waive a right to request an instruction which would require the State to prove batteries against both alleged victims if that is the manner in which the charge is framed. On the other hand, a valid conviction may be had if the State proves only a battery against one of two alleged victims. In such instance, it is akin to failing to prove the greater crime as alleged but proving a lesser included offense. See Phillips v. State (1988) 3d Dist.Ind.App., 518 N.E.2d 1129.
Here, only one crime was charged, i.e., that Townsend "knowingly or intentionally touchfed] another person ... in a rude, insolent or angry manner; and did thereby commit Battery, a Class 'D' Felony." Record at 6. Therefore, only one conviction could lie under that charge.
Waiver of a duplicitous charge is not the issue here. Townsend was not convicted of two batteries. The State charged too much; however, that portion of the charge which alleged a battery against Skye Tur-ney was established by the evidence. That conviction, the only conviction before us, is correctly affirmed.