concurring in part and dissenting in part.
I fully concur with respect to Parts II, III and IV. As to Part I, I dissent.
*473Although the majority highlights the fact that robbery as a Class A felony and murder do not constitute the same offense for double jeopardy purposes, it does not pose the truly pertinent question: Are robbery as a Class A felony and felony murder the same offense for double jeopardy purposes? Our Supreme Court has held that, “when a felony-murder results from a killing in the commission of a robbery, the robbery is the lesser included offense of the felony-murder.” Eddy v. State (1986) Ind., 496 N.E.2d 24, 29. See also Collier v. State (1984) Ind., 470 N.E.2d 1340.
As that court pointed out in Kennedy v. State (1996) Ind., 674 N.E.2d 966, 967, “the conviction for murder while in the commission of a felony could not occur without proof of the accompanying felony.” The majority here opines that murder requires a knowing or intentional killing while Class A robbery requires that property be taken, resulting in serious bodily injury or death and that therefore each contains an element not present in the other.
The majority relies upon Games, supra, 684 N.E.2d at 466, for its conclusion that the retrial here does not offend double jeopardy. In Games, our Supreme Court determined that one should look only to the statutory elements of the offenses in order to determine whether a double jeopardy prohibition exists. Id. at 477. The dispositive question under Games is “whether each provision requires proof of an additional fact that the other does not.” Blockburger v. United States (1932) 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306.
Games has not rendered the lesser included offense doctrine impotent in Indiana. As the majority concludes, Class A robbery requires: 1) that property is taken, and 2) that either bodily injury or death results. Felony murder requires:l) the underlying felony or an attempt, and 2) death. The first element of felony murder requires the proof of the felony — thus all the requirements of that felony. The second requirement of felony murder is death. Although felony murder requires proof of an element not inherent in Class A robbery, Class A robbery does not require the proof of any element that is not required under felony murder.
Stated somewhat differently, in order to convict of Class A robbery, the State must demonstrate: 1) a taking of property, and 2) serious bodily injury or death. In order to convict of felony murder here, the State must demonstrate: 1) a taking of property, 2) serious bodily injury or death, and 3) death. It is of no moment that death may satisfy both the second and third elements of the felony murder. The State must still prove each element to prove felony murder including a taking.6
However, it becomes apparent to me that the Games test simply does not work here. Theoretically, felony murder, as per its statutory elements, merely requires that any of the enumerated felonies be committed or attempted and that a human being is killed. I.C. 35-42-1-1 (Burns Code Ed.Repl.1994). Therefore, each of the enumerated felonies is an included offense of felony murder. In order to determine whether felony murder and the underlying felony constitute the same crime, one must look to felony murder as charged. Here, however, even if we look to the offenses as charged, we find that they are the same for double jeopardy purposes.
Although decided before Games, our Supreme Court addressed an analogous situation in Buie v. State (1994) Ind., 633 N.E.2d 250. There the court noted that “where the overt act element of the conspiracy charge is the underlying offense, and where the State has obtained a conviction for conspiracy based upon the commission of the underlying offense, the State may not subsequently pursue a prosecution for the underlying offense.” Id. at 261. The same result would follow if the defendant had been acquitted of the conspiracy charge. See Redman v. State (1997) Ind.App., 679 N.E.2d 927, trans denied. The Supreme Court has not seen fit to revisit or overrule Buie.
*474It appears clear that Games has done nothing to disturb prior Supreme Court precedent that the robbery here is a lesser-included offense of the felony murder charge. For this reason, I dissent as to Part I.
. Here, for example, the State has charged Class A robbery resulting in serious bodily injury, not death. However, the State still must prove every element of the Class A robbery in order to establish felony murder. However, as Games has so commandingly told us, we shall not look to the offense as charged. It does not matter how the State has charged the felony murder.