concurring and dissenting.
This Court affirmed a death sentence for the crime of felony murder in Daniels v. State (1983), Ind., 453 N.E.2d 160, where the aggravating cireumstance supporting the death penalty was that "Daniels, intentionally killed the victim, Allen Street, while attempting to commit Robbery", the (b)(1) aggravator. Here, unlike Daniels and other felony murder cases employing the (b)(1) aggravator, the death sentence for the felony murder of Jordan Hanmore is being affirmed where the aggravating cireumstances supporting the death penalty are that (1) the victim Jordan Hanmore was less than twelve years of age, the (b)(11) aggravator, and (2) the defendant had a prior murder conviction, the (b)(7) aggravator.
The (b)(11) aggravator was not intended by the legislature to warrant the death penalty where, as here, the only criminal state of mind supporting the finding or verdict of guilty of murder is the intent to commit a non-homicide felony or the intent to aid and abet in the commission of a non-homicide felony. Abrams v. State (1980), 273 Ind. 287, 403 N.E.2d 345 (aiding and abetting instruction properly given when felony murder is *484charged). Here Jordan Hanmore died of smoke inhalation, and the non-homicide felony charged is arson. This (b)(11) aggravator is instead intended to identify those who knowingly or intentionally kill small children as deserving the death penalty. This purpose is not served when the aggravator is employed in conjunction with a felony murder.
A conviction satisfying the (b)(7) aggravator should have (1) been final, (2) been in existence when the instant act of killing occurred, and (3) been based upon a knowing or intentional state of mind. Lockhart v. State (1998), Ind., 609 N.E.2d 1093, 1104 (DeBruler, J., dissenting). Here there was no proof of elements (1) and (8). Indeed, with respect to (8), appellant's 1973 convietion with its twenty year sentence constituted no more than a lesser felony homicide, lacking wilfulness, deliberation, and premeditation in addition to lacking the intent to commit one of the major felonies like rape, arson, robbery, and burglary. Va.Code Ann. § 18.2-32 and -33 (Michie 1988); Durham v. Commonwealth, 214 Va. 166, 198 S.E.2d 603 (1973).
Upon the above reasoning I eannot join in finding appropriate the death penalty for the felony murder of Jordan Hanmore. I do, however, join in finding the death penalty appropriate for the outright knowing murder of Tia Forsee upon the basis of the (b)(11) aggravator, that she was a child under the age of twelve. She was three and one half years old. She was in a room separate from her brother, and the fire was started by an accelerant on her or immediately next to her.