Bailey, J.
Indiana Code section 35-42-1-1(2) provides that a “person who . . . kills another human being while committing or attempting to commit . . . burglary . . . commits murder, a felony.” The State need not prove intent to kill, only the intent to commit the underlying felony. Exum v. State, 812 N.E.2d 204, 207 (Ind. Ct. App. 2004), trans. denied. In Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999), our supreme court held that the statutory language “kills another human being while committing” does not restrict the felony murder provision only to instances in which the felon is the killer, but may also apply equally when the felon contributes to the death of any person. The Palmer court used this interpretation of the felony murder statute to affirm Palmer’s conviction for the death of his co-perpetrator who was shot and killed by a law enforcement officer. Id. Specifically, our supreme court explained as follows:
Our Court of Appeals has correctly observed:
“[A] person who commits or attempts to commit one of the offenses designated in the felony-murder statute is criminally responsible for a homicide which results from the act of one who was not a participant in the original criminal activity. Where the accused reasonably should have . . . foreseen that the commission of or attempt to commit the contemplated felony would likely create a situation which would expose another to the danger of death at the hands of a nonparticipant in the felony, and where death in fact occurs as was foreseeable, the creation of such a dangerous situation is an intermediary, secondary, or medium in effecting or bringing about the death of the victim. There, the situation is a mediate contribution to the victim’s killing.
Id. (citing Sheckles v. State, 684 N.E.2d 201, 205 (Ind. Ct. App. 1997). See also Jenkins v. State, 726 N.E.2d 268 (Ind. 2000) (affirming Jenkins’ felony murder conviction where co-perpetrator was shot and killed by robbery victim).
Here, Layman, Sparks and three co-perpetrators participated in a home invasion to commit a burglary. Four of the perpetrators broke down Scott’s back door while Sparks watched for the police or visitors to Scott’s house. The victim of an unlawful entry of or attack on his dwelling fighting back with deadly force is a natural consequence that has been justified by our State’s legislature. See I.C. § 35-41-3-2. In addition, our State Constitution gives the people a right to bear arms for the defense of themselves. Indiana Constitution Article I, § 32. For these reasons, it was reasonably foreseeable that the victim’s acts of self-defense or defense of his dwelling were likely to create a situation leading to the death of one of the co-perpetrators. See Exum, 812 N.E.2d at 208.
MAY, J., concurs in result with separate opinion:
While I reluctantly agree a jury could find Layman and Sparks guilty of felony murder even though neither they nor their accomplices killed anyone, I write separately to address whether Layman and Sparks waived the constitutional issues they raise. I write also to express my serious concerns about the felony murder statute and how it was applied in the case before us, and to suggest an approach to its application that I believe is more in line with recent Indiana and United States Supreme Court decisions.
. . . .
In light of the rationale expressed by the Indiana and United States Supreme Courts as summarized in Brown and Fuller, I agree that Layman’s and Sparks’ sentences were inappropriate. But I believe the Brown and Fuller reasoning is instructive in the case before us, not just as pertains to their sentences, but also as to the basis for their culpability for felony murder.
. . . .
Subjecting a juvenile who did not kill or intend to kill anyone to a murder prosecution in adult court based solely on the premise it was “foreseeable” to the juvenile that someone might be killed is problematic because juveniles do not “foresee” like adults do. As explained above, Fuller, Brown, and a number of recent decisions from the United States Supreme Court have expanded on what has long been recognized — that the thought processes of adults and juveniles are fundamentally different and the justice system generally should not treat juveniles the same as adults. Therefore, “from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult.” Roper, 543 U.S. at 570. Further, defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. Graham, 560 U.S. at 69.
I am concerned that our application of the tort-like “foreseeability” standard to juveniles waived into adult court and tried for felony murder is inconsistent with the reasoning our Indiana Supreme Court applied to sentencing review in Fuller and Brown and the United States Supreme Court decisions cited therein. The inherent differences between children and adults have been recognized in decisions applying tort standards similar to foreseeability. . . . .
. . . .
Courts in other jurisdictions have recognized a partial solution to that dilemma. In considering the applicability of the felony-murder rule where, as here, the killing is committed by someone resisting the felony, numerous courts have adopted the view that for a defendant to be held guilty of murder, it is necessary that the act of killing be that of the defendant, and for the act to be his, it is necessary that it be committed by him or by someone acting in concert with him. See, e.g., Erwin S. Barbre, Annotation, Criminal Liability where Act of Killing is Done by One Resisting Felony or Other Unlawful Act Committed by Defendant, 56 A.L.R.3d 239 (1974). That approach is referred to as the “agency approach,” and it renders the felony-murder rule inapplicable where, as in the case before us, the killing is done by one resisting the felony. Id. The other approach, which Indiana courts have followed in cases involving adult felony murder defendants, permits a conviction where, as here, any death is a foreseeable consequence of the felon’s acts, even if the killing is the result of a non-participant’s actions. It is referred to as the “proximate cause” theory. Id.
I acknowledge that our courts have not adopted the agency approach where the defendant is an adult, but I have found no decision that would foreclose application of that approach to a juvenile defendant. Adoption of the agency approach for juveniles would be consistent with our Supreme Court’s statement in its Fuller sentencing analysis: “Although only a year older than Fuller, Brown unlike Fuller was an accomplice — a factor that we found particularly important. Instead Fuller was one of the actual shooters.” Fuller, 9 N.E.3d at 658-59.
As the lead opinion’s outcome in the case before us is permitted by existing Indiana law, I must concur in the result. But I believe application of the agency approach to prosecutions of juvenile felony murder defendants, even though such defendants are subject to adult court jurisdiction, offers an approach more consistent with the spirit of Brown and Fuller than the ”proximate cause” approach required by Palmer for adult felony murder defendants.
KIRSCH, J., dissents with separate opinion:
In both Palmer and Jenkins, the defendants were (1) armed and (2) engaged in dangerously violent and threatening conduct when they committed the underlying felony. In Palmer, the defendant pointed a loaded and cocked handgun at the head of a police officer and fired it, injuring the officer. In Jenkins, the armed defendant and his co-perpetrator tied up the two victims and were in the process of murdering one of them when one of the victims got loose, picked up a gun and shot and killed the co-perpetrator.
In both Palmer and Jenkins, the Court concluded that the defendants’ conduct clearly raised the foreseeable possibility that the intended victim might resist or that law enforcement would respond and thereby created a risk of death to persons present and that the defendant’s felonious conduct was the mediate or immediate cause of the co-perpetrator’s death.
Here, by contrast, sixteen-year old Blake Layman and seventeen-year old Levi Sparks were (1) unarmed and (2) attempting to commit a non-violent burglary of what they believed was an unoccupied residence. The defendants here were attempting to commit a non-violent crime when the unforeseeable tragedy giving rise to this case unfolded.
Because the circumstances here are very different from those before the Court in Palmer and Jenkins, I respectfully dissent from my colleagues’ conclusion that Indiana Code section 35-42-1-1, the felony murder statute, was properly applied in this case.