concurring.
I concur with the lead opinion's determination that Davis's convictions must be affirmed. However, I am compelled to write separately in order to express my disagreement with the deference that the opinion imparts to Vaughn v. State, 782 N.E.2d 417 (Ind.Ct.App.2003), where another panel of this court held that our domestic battery statute was unconstitutionally vague.
In my view-and the lead opinion appears to acknowledge the same-it was the failure of proof in Vaughn that led to a reversal. See slip op. at 9. More to the point, it is my belief that the statute is salvageable and constitutional. I would note that in apparent direct response to the Vaughn holding, our General Assembly amended our Domestic Battery statute and set forth a number of cireumstances that the factfinder should consider in determining whether a person "is or was living as a spouse of the other person" to support a conviction under Indiana Code section 85-42-2-1.8(a). Under subsection (b) of the statute, those factors are:
(1) the duration of the relationship;
(2) the frequency of contact;
(3) the financial independence;
(4) whether the two individuals are raising children together;
(5) whether the two individuals have engaged in tasks directed toward maintaining a common household; and
(6) other factors the court considers relevant.
While the legislature has deemed it necessary to specifically list the above considerations, I submit that the State has always been required to plead and prove such evidentiary factors when prosecuting a case under the domestic battery statute.
There are times when the law seems to bear little relation to the language, experience, or culture of the people who have to live under it. Because the Constitution at times speaks in general terms, its meaning is particularly liable to bizarre abstractions parading as interpretations. Those untrained in the law may discern little or no connection between the Constitution and constitutional law. Surprisingly, the Constitution's majestic generalities even escape the notice of some attorneys and judges.
For example, it never occurred to Davis or his attorney or the judge trying his case that the phrase "living as if a spouse of the" batterer was vague. See Ind.Code Ann. § 35-42-2-1.83(2) (West Supp.2002-2003). They took for granted that the statute had a meaning definite enough to understand. But the Constitution, they are told, says that they could not "comprehend [the statute] adequately to inform them of the proscribed conduct." Vaughn *811v. State, 782 N.E.2d 417, 420 (Ind.Ct.App.2003). In other words, the statute is not actually vague; it is "unconstitutionally" vague. See id.
That said, even if Davis had raised the issue of "unconstitutional vagueness," I would still affirm his domestic battery conviction because the Vaughn rationale is simply not persuasive. Here, the evidence presented by the State was sufficient to support a conviction, whereas in Vaughn, it was not. For this reason, I would affirm Davis's convictions.