Rucker, J.
The State charged McWhorter with murder in the shooting death of his girlfriend, Amanda Deweese. . . . Despite McWhorter’s apparent all-or-nothing defense of accident, at the close of trial and without objection from defense counsel, the trial court also instructed the jury on voluntary manslaughter and reckless homicide. After deliberating the jury returned the following verdict: “We, the Jury, find the Defendant, Andrew W. McWhorter, not guilty of murder, but guilty of voluntary manslaughter, a Class A felony, as a lesser included offense of murder, a felony.” . . . .
. . . .
McWhorter filed a pro se petition for post-conviction relief that was later amended by counsel on September 21, 2011. As amended the petition essentially alleged that trial counsel rendered ineffective assistance for failing to object to the voluntary manslaughter instruction. More particularly McWhorter contended that the instruction “was structurally flawed, was an incorrect statement of the law, was confusing, and permitted the jury to re-deliberate on the elements of murder (in the context of voluntary manslaughter) after having acquitted McWhorter of murder.” App. to Br. of Appellant at 28.1 [1 The instruction reads:
The Defendant is charged with murder. Voluntary manslaughter and reckless homicide are lesser included offenses in the charge of murder. If the State proves the Defendant guilty of murder, you need not consider the included crimes. However, if the State fails to prove the Defendant committed murder, you may consider whether the Defendant committed voluntary manslaughter or reckless homicide, which the Court will define for you.
You must not find the Defendant guilty of more than one crime.
The statute defining the offense of Murder which was in force at the time of the offense charged reads as follows:
35-42-1-1. Murder
A person who: knowingly . . . kills another human being . . . commits murder, a felony.
To convict the Defendant, the State must have proved each of the following elements:
1. The Defendant
2. knowingly
3. killed
4. Amanda L. Deweese.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of murder, a felony, as charged in the Information.
You may then consider any included crime. The crime of voluntary manslaughter is included in the charged crime of murder. Voluntary manslaughter is defined by statute as follows:
A person who knowingly . . . kills another human being while acting under sudden heat commits voluntary manslaughter, a Class B felony. The offense is a Class A felony if it is committed by means of a deadly weapon.
Sudden heat is a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter. The State has the burden of proving beyond a reasonable doubt that the Defendant was not acting under sudden heat.
Before you may convict the Defendant, the state must have proved each of the following beyond a reasonable doubt:
1. The Defendant
2. knowingly
3. killed
4. Amanda Deweese
5. and the Defendant was not acting under sudden heat
6. and the Defendant killed by means of a deadly weapon.
If the State failed to prove each of elements 1 through 4 of the crime of murder beyond a reasonable doubt, you must find the Defendant not guilty of murder as charged.
If the State did prove each of elements 1 through 4 and element 6 beyond a reasonable doubt, but the State failed to prove beyond a reasonable doubt element 5, you may find the Defendant guilty of voluntary manslaughter, a Class A felony, a lesser included offense of murder. If this is your finding but that the Defendant did not do so by means of a deadly weapon, you may find the Defendant guilty of voluntary manslaughter, a Class B felony, a lesser included offense of murder. If the State proves the Defendant guilty of voluntary manslaughter, you need not consider the next included crime.
If the State did prove each of elements 1 through 5 beyond a reasonable doubt, you may find the Defendant guilty of murder, a felony.
The crime of reckless homicide is defined by law as follows:
A person who recklessly kills another human being commits reckless homicide, a Class C felony.
Before you may convict the Defendant of reckless homicide, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant
2. recklessly
3. killed
4. Amanda Deweese.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the defendant not guilty of reckless homicide a Class C felony.
App. 25-27 (emphases added).]
. . . Agreeing that counsel rendered ineffective assistance, the Court of Appeals reversed the judgment of the post-conviction court. In so doing the Court remanded this cause concluding McWhorter may be retried on the charge of reckless homicide, [footnote omitted] but may not be retried on the charge of voluntary manslaughter. See McWhorter v. State, 970 N.E.2d 770, 778 (Ind. Ct. App. 2012). The State sought transfer challenging only this aspect of the Court of Appeals opinion. [Footnote omitted.] Having previously granted transfer we conclude that McWhorter may be retried on the charge of reckless homicide as well as voluntary manslaughter.
. . . .
McWhorter contends and the Court of Appeals agreed that the now-challenged instruction:
[D]irected the jury to proceed, upon a failure of proof of one or more of the elements of Murder, to consider the lesser charge of Voluntary Manslaughter. However, the only element in dispute was intent. The jury was led by the sequential error of the instruction to, as a practical matter, find that McWhorter did not knowingly or intentionally kill Deweese, but that he did knowingly or intentionally kill Deweese while acting in sudden heat.
McWhorter, 970 N.E.2d at 777.
. . . .
In this jurisdiction “[j]ury verdicts in criminal cases are not subject to appellate review on grounds that they are inconsistent, contradictory, or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010). Indeed we tolerate such verdicts under some circumstances acknowledging that they conceivably could be “due to a compromise among disagreeing jurors, or to expeditiously conclude a lengthy deliberation, or to avoid an all-or-nothing verdict, or for other reasons.” Id. (discussing inconsistency between jury returning a verdict of not guilty of dealing in cocaine and possession of cocaine, but guilty of possession of cocaine within 1,000 feet of a family housing complex and possession of marijuana). Because such verdicts are not subject to appellate review, the structural flaw in the challenged instruction here, which gave rise to a “legally inconsistent” and potentially compromised or allegedly “unreliable” verdict, cannot provide a basis for precluding retrial on the voluntary manslaughter charge. This leaves us with McWhorter’s more general double jeopardy claim.
. . . .
. . . McWhorter was acquitted of murder, and the State seeks to retry him for the lesser-included offense of voluntary manslaughter. It is true that under principles of double jeopardy a conviction of a greater offense precludes the conviction of a lesser-included offense. See Brown v. Ohio, 432 U.S. 161, 168 (1977). But it is well-settled that “a defendant may be retried for a lesser offense, of which he was convicted at the first trial, after that conviction is reversed on appeal, and this is true even though the first trial also resulted in a verdict of acquittal on a greater offense.” Griffin, 717 N.E.2d at 78 (citing Price v. Georgia, 398 U.S. 323, 326-27 (1970)). Retrial after reversal of a conviction is prohibited only where the reversal is for insufficient evidence, which is akin to an acquittal. See Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012). It is clear that traditional federal double jeopardy jurisprudence does not preclude retrying McWhorter for voluntary manslaughter.
McWhorter’s double jeopardy argument is premised on the notion that the only matter in dispute during trial “was whether the shooting was knowing or accidental.” Br. of Appellant at 3 (citing Tr. at 42-43). Essentially, the argument continues, because the jury found him not guilty of murder, and because murder and voluntary manslaughter share the same element of a “knowing” killing, McWhorter insists the jury has already determined that he did not knowingly kill Deweese; and thus the State should not be allowed another opportunity to present this issue. In essence McWhorter contends that the verdict form was the functional equivalent of not only an acquittal of murder, but also an acquittal of voluntary manslaughter.
This argument is more appropriately framed not as a double jeopardy prohibition but rather as a matter of applying the doctrine of collateral estoppel. Also referred to as issue preclusion, collateral estoppel has been characterized as an “awkward phrase” however, “it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). “Collateral estoppel is not the same as double jeopardy, but rather it is embodied within the protection against double jeopardy.” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). “[T]he traditional bar of jeopardy prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more modest fashion, simply forbids the government from relitigating certain facts in order to establish the fact of the crime.” Id. (alteration in original) (internal quotation omitted). “In essence the doctrine of collateral estoppel ‘precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.’” Id. (quoting Yeager v. United States, 557 U.S. 110, 119 (2009)) (emphasis added). To determine what a jury’s verdict necessarily decided, we “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. (quoting Yeager, 557 U.S. at 120 (quotation omitted)).
. . . .
By contrast, in the case before us whether McWhorter acted knowingly was not the only “single rationally conceivable issue in dispute before the jury.” Also in dispute was whether McWhorter acted under sudden heat. Evidence at trial indicated the shooting took place after McWhorter and Deweese had argued about her involvement with another man. And although we do not decide here whether there was “sufficient” evidence of sudden heat, we note that the question was squarely before the jury. And perhaps most importantly, the jury was instructed on sudden heat. Thus, taking into account the “pleadings, evidence, charge, and other relevant matter,” Coleman, 946 N.E.2d at 1165 (quotation omitted), we conclude that a rational jury could have based McWhorter’s acquittal on an issue other than whether he acted knowingly. Particularly given the presence of an instruction on voluntary manslaughter (flawed though it may have been), it is certainly conceivable that a rational jury could have determined that McWhorter acted knowingly but did so under mitigating circumstances.
Dickson, C.J., and David, Massa and Rush, JJ., concur.