This section contains the nature of the case and procedural background.

Smith (D) and her two daughters, Beth (3.5 years) and Amy (2 years) lived with a David Foster. Amy was being difficult by refusing to sit on a couch to eat a snack. D became angry and punished Amy and repeatedly hit her knocking her to the floor. Foster joined D to assist in the punishment by paddling the child, biting her, hitting her on the head with his fist after putting a wastebasket over her, causing her to fall and hit her head on the closet door. Amy then went into respiratory arrest. Amy died that evening. D admitted that she had hit her too hard and took all responsibility because Foster was on probation. Eventually, D admitted that she had only spanked the child and that Foster had done the serious damage. When the punishment was going on by Foster, D did not think that Amy’s life was in danger. D did intervene after Amy had stiffened and fainted. D was charged with felony child abuse and second-degree murder under the second-degree felony murder doctrine. The trial court gave a second-degree felony murder instruction and D objected. The court instructed that an unlawful killing is second-degree murder if it occurs during the commission of a felony inherently dangerous to human life and felony child abuse was such a crime. D was convicted and appealed. D contends that felony child abuse merged into the homicide as it was an integral part of the homicide that was charged.

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