concurring.
I concur in the lead opinion's determination that Davis's convictions are affirmed. However, as the author of the opinion in Vaughn v. State, 782 N.E.2d 417 (Ind.Ct.App.2003), trans. denied, I am compelled to explain what I perceive to be shortcomings in the treatment of Vaughn and the domestic battery statute in both the lead and concurring opinions.
*809In his concurring opinion, Judge Baker takes the position that it was the State's failure of proof-or lack of evidence for the condition of "living as if a spouse"-in Vaughn that gave rise to the claim that the statute was unconstitutionally vague as applied to Vaughn. See slip op. at 1, (Baker, J., concurring). That view is only partially correct. In actuality, the State presented the evidence which it viewed as sufficient to establish that Vaughn had "lived as if the spouse" of the victim. However, applying the standard used in challenges to statutes as being unconstitutionally vague, we held that because the words "living as if a spouse" of another are subject to broad and varying interpretation, an individual of ordinary intelligence would not comprehend that he would be subject to punishment under the domestic battery statute upon the basis that he formerly lived with the victim and that they had a sexual relationship. Vaughn, 782 N.E.2d at 421-22.
Both the lead opinion and the concurring opinion refer to the General Assembly's amendment of the domestic battery statute by the addition of several factors, most likely in response to our holding in Vaughn. In his concurring opinion, Judge Baker asserts "that the State has always been required to plead and prove such evidentiary factors when prosecuting a case under the domestic battery statute." Slip op. at 2, (Baker, J., concurring). While I agree that such should be true, I disagree with Judge Baker's assessment that such has always been so. The fact made clear by Vaughn is that prior to our decision in that case, the State was required by our courts to prove very little to establish that a person was "living as if the spouse" of another. Based upon what appears to have been the prevailing view at the time that Davis was convicted regarding the state of the domestic battery statute, it should come as little shock and amazement that neither the trial court Judge nor Davis's counsel questioned whether the State had proved that Davis was "living as if the spouse" of Scott. That an extremely deferential view of the proof of this element existed was made clear in Vaughn by the determination at the trial court level that Vaughn had lived as if the spouse of the victim due solely to the facts that they had been involved in a sexual relationship and that they had lived together for a period of time. It was those facts which we determined were insufficient to place an individual upon notice that he was "living as if the spouse" of another so that he was subject to punishment under the domestic battery statute.
I agree with the lead opinion's conclusion that the evidence presented in this case is different than that which existed in Vaughn. The existence of these differences lead me to the conclusion that an individual of ordinary intelligence would comprehend that Davis was subject to prosecution under the domestic battery statute. In addition, these differences un-derseore our holding in Vaughn, that the domestic battery statute was unconstitutionally vague as applied to Vaughn. Id. at 420.
Be that as it may, I am somewhat concerned by the rationale employed in the lead opinion to conclude that the evidence showed that Davis had "lived as if the spouse" of Scott. The lead opinion indicates that Davis's statement "that he disliked some of Scott's activities, but that he stayed with her because he loved her ... negates the possibility that Davis was living in Scott's household in a relationship without a spouse-like commitment." Slip op. at 9. While this statement is indicative of the existence of a spouse-like commitment, it does not negate the possibility that some other relationship existed. Love does not necessarily create a spouse-*810like commitment, just as a spouse-like commitment does not necessarily indicate that love is present. It was this principle that was a prominent concern in Vaughn because of the likely widely varying views among the public as to what facts would indicate that one was "living as if the spouse" of another. 782 N.E.2d at 421. Further, I am not convinced that Scott's statement to Officer Reidenbach that she considered Davis her boyfriend plays a significant role in whether their relationship constituted a spouse-like commitment. Nonetheless, the fact that they had lived together for several months and that Davis spent a considerable amount of time caring for Scott's children, in addition to Davis's acknowledgment that he stayed with Scott because he loved her, support the conclusion that Davis was "living as if the spouse" of Scott and subject to prosecution under the domestic battery statute. For this reason, I concur.