dissenting.
The recent decision by this court in Davis v. State, 796 N.E.2d 798 (Ind.Ct.App.2003) demonstrates the factual distinction between a person "living as if a spouse" and a mere romantic/cohabitation relationship. In that decision, the lead opinion by Judge Darden focused upon the new statutory factors set forth in I.C. § 35-42-2-1.3. Both Judge Baker and I wrote separate concurrences reflecting our respective but opposing views concerning the analysis made by a unanimous but different panel of this court in Vaughn v. State, 782 N.B2d 417 (Ind.Ct.App.2008).
It appears that Judge Friedlander, as per his opinion in the case now before us, and Judge Riley are more in tune with Judge Baker's view that Vaughn was wrongly decided. In doing so, Judge Friedlander's opinion categorizes the distinction drawn in Davis, between its facts and the facts in Vaughn, as dictum. I respectfully submit that the distinction drawn is not dictum. It is the very basis of the holding.
Davis requires far more than a mere "ongoing romantic relationship" and living together. Taking the majority opinion in the case before us at face value, it says that the purpose of the General Assembly in enacting the Domestic Battery Statute was to punish "battery in a domestic setting" more severely than the punishment for battery under I.C. $ 35-42-2-1. Op. at 461. Again, a "domestic setting" in and of itself does not trigger application of the Domestic Battery provision. If it were otherwise, we would ignore the clear and unmistakable requirement that the batterer is "living as if a spouse" of the victim. See I.C. § 35-42-2-1.3. If it were otherwise, two gentlemen sharing living accommodations, driven by a debate whether the Cubs will ever again play in a World Series, and who engage in a physical altercation causing bruises would be guilty of Domestic Battery. So too even two siblings living with their parents might be considered in the majority's "domestic setting" contrary to the intent of the General Assembly.
Furthermore, the majority opinion relegates the new amendatory legislation to the serap-heap of statutory construction. It seems clear that the enumerated factors in the present statute were intended to guide the court in making a determination whether or not a couple were "living as if a spouse." It would seem probable that the statutory amendment was a response to the decision in Vaughn, supra. See Jones v. State, 457 N.E.2d 231 (Ind.Ct.App.1983). It seems clear that the addition of the amendatory language was intended not to change the law but rather to clarify the statute in order to cure the constitutional infirmity discerned in Vaughn. See Med. Disposal Servs Inc. v. Ind. Dep't of Envtl. Mgmt., 669 N.E.2d 1054 (Ind.Ct.App.1996), Nat'l Salvage & Serv. Corp. v. Comm'r of Ind. Dep't of Envtl. Mgmt., 571 N.E.2d 548 (Ind.Ct.App.1991); Bailey v. Menzie, 505 N.E.2d 126 (Ind.Ct.App.1987); Jones v. State, supra. That being said, a "domestic setting" or a mere romantic re*463lationship, even with cohabitation, is not determinative.
For the reasons set forth, I am led to conclude that the facts before us are akin to the facts of Vaughn. Accordingly, I would follow the holding in Vaughn, and, not inconsistent with Davis v. State, would reverse the judgment of conviction in this case.