                                                                          FILED
                                                                     Apr 28 2016, 9:38 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court



ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
P. Stephen Miller                                            Gregory F. Zoeller
Fort Wayne, Indiana                                          Attorney General of Indiana

                                                             Katherine Modesitt Cooper
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana




______________________________________________________________________________

                                               In the
                                Indiana Supreme Court
                                _________________________________

                                       No. 02S03-1508-CR-510

LEONARD L. SUGGS,
                                                             Appellant (Defendant below),

                                                  v.

STATE OF INDIANA,
                                                          Appellee (Plaintiff below).
                                _________________________________

                      Appeal from the Allen Superior Court, No. 02D06-1408-F6-90
                                The Honorable Wendy W. Davis, Judge
                                _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-1412-CR-440
                           _________________________________



                                            April 28, 2016



Rucker, Justice.
       The question presented is whether the sister of a brother who was once married to the
defendant’s aunt is a “family or household member” within the meaning of the statute elevating
misdemeanor battery to a level 6 felony. We think not.


                                  Facts and Procedural History


       On the evening of August 2, 2014, Leonard L. Suggs and his girlfriend, Evelyn Garrett,
attended a family reunion at a bowling alley in Allen County. Suggs and Garrett were dating and
had lived together in an intimate relationship for about two years. Family members attending the
reunion included ten to twenty children under the age of sixteen. Also in attendance was Vera
Warren whose brother had been previously married to Suggs’ aunt. Suggs has known Warren all
his life and refers to her as “Auntie.”


       At some point during the course of the evening Suggs and Garrett became engaged in a
verbal altercation. Despite the intervention of several family members and the assistant manager
of the bowling alley Suggs refused to leave. The altercation escalated and Suggs threw a beer
can at Garrett that missed; he then picked up a bowling ball and threw it at her. The bowling ball
grazed Garrett and hit Warren on the left side of her head, which she later testified caused her
pain. Warren immediately left the building and called 911. In the meantime Suggs grabbed
Garrett by the hair and pulled her down a flight of stairs.


       Officers of the Fort Wayne Police Department arrived on the scene a short time thereafter
and spoke with Garrett and two of the children who had observed the fracas. The children were
extremely upset by what they had seen.


       On August 7, 2014 the State charged Suggs with domestic battery as a level 6 felony for
his assault on Garrett and battery as a level 6 felony for his assault on Warren. Following a jury
trial on October 8, 2014 Suggs was found guilty as charged. Thereafter the trial court sentenced
him to two years for each conviction to be served consecutively for an aggregate term of four
years with credit for time served in pretrial confinement. Suggs appealed challenging the
sufficiency of the evidence for both convictions. Rejecting Suggs’ challenge the Court of



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Appeals affirmed the judgment of the trial court. See Suggs v. State, 31 N.E.3d 998 (Ind. Ct.
App. 2015). Having previously granted transfer we now reverse the judgment of the trial court
with respect to Suggs’ level 6 battery conviction. In all other respects we summarily affirm the
opinion of the Court of Appeals. See Ind. App. R. 58(A).


                                             Discussion


       Indiana Code section 35-42-2-1 provides in relevant part, “a person who knowingly or
intentionally: (1) touches another person in a rude, insolent, or angry manner . . . commits
battery, a Class B misdemeanor[,]” which is elevated to a class A misdemeanor “if it results in
bodily injury to any other person.” Ind. Code § 35-42-2-1(b), (c).1 The statute further provides:

               [Battery] is a Level 6 felony if . . . [t]he offense is committed
               against a family or household member (as defined in IC 35-31.5-2-
               128) if the person who committed the offense: (A) is at least
               eighteen (18) years of age; and (B) committed the offense in the
               physical presence of a child less than sixteen (16) years of age,
               knowing that the child was present and might be able to see or hear
               the offense.

I.C. § 35-42-2-1(d)(6). Challenging the sufficiency of the evidence Suggs does not dispute he
was at least eighteen years of age at the time of the offense, nor does he contest that the battery
occurred in the physical presence of a child less than sixteen years of age or that he knew the
child was present and might be able to see or hear the offense. Rather he complains the evidence
is insufficient to demonstrate that Warren was a “family or household member” within the
meaning of Indiana Code section 35-31.5-2-128.


       When we review a claim challenging the sufficiency of the evidence we neither reweigh
the evidence nor assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639
(Ind. 2010). Instead, we consider only the evidence and reasonable inferences drawn therefrom
that support the verdict. Id. And we will affirm the conviction if there is probative evidence


1
 “‘Bodily injury’ means any impairment of physical condition, including physical pain.” I.C. § 35-31.5-
2-29.



                                                  3
from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt.
Id.


        Captioned “Family or household member” Indiana Code section 35-31.5-2-128 dictates
in pertinent part:
                (a) An individual is a “family or household member” of another
                    person if the individual:
                    (1) is a current or former spouse of the other person;
                    (2) is dating or has dated the other person;
                    (3) is or was engaged in a sexual relationship with the other
                        person;
                    (4) is related by blood or adoption to the other person;
                    (5) is or was related by marriage to the other person;
                    (6) has or previously had an established legal relationship:
                        (A) as a guardian of the other person;
                        (B) as a ward of the other person;
                        (C) as a custodian of the other person;
                        (D) as a foster parent of the other person; or
                        (E) in a capacity with respect to the other person similar to
                        those listed in clauses (A) through (D); or
                    (7) has a child in common with the other person.

I.C. § 35-31.5-2-128(a) (emphasis added). Focusing on subsections (a)(4) and (5) Suggs insists
that Warren is neither his “blood relative” nor is she related by marriage to him. Br. of Appellant
at 9. According to Suggs, a relative by marriage connotes “Brother-in-law,” “Sister-in-law,”
“Mother-in-law,” “Son-in-law,” and “Daughter-in-law,” and that Warren does not fall within any
of these categories. Id. at 11. The State counters, “[t]he statute appears to define ‘family or
household member’ in broad terms to capture as many types of familial and household
relationships as possible, and, while the statute provides that an individual who is related by
blood to the other person is a family or household member, other types of relationships are also
clearly protected.” Br. of Appellee at 10-11.


        As is apparent by the arguments of both sides we are presented with a question of
statutory construction which is a matter of law and is reviewed de novo. When construing a
statute our primary goal is to ascertain the legislature’s intent. Adams v. State, 960 N.E.2d 793,
798 (Ind. 2012). To discern that intent, we look first to the statutory language itself and give



                                                 4
effect to the plain and ordinary meaning of statutory terms. Pierce v. State, 29 N.E.3d 1258,
1265 (Ind. 2015). “If a statute is unambiguous, that is, susceptible to but one meaning, we must
give the statute its clear and plain meaning.” State v. Evans, 810 N.E.2d 335, 337 (Ind. 2004)
(quotation omitted). However, if a statute admits of more than one interpretation, then it is
ambiguous; and we thus resort to rules of statutory interpretation so as to give effect to the
legislature’s intent. Adams, 960 N.E.2d at 798. “For example, we read the statute as whole,
avoiding excessive reliance on a strict, literal meaning or the selective reading of individual
words.” Id. And we seek to give a practical application of the statute by construing it in a way
that favors public convenience and avoids an absurdity, hardship, or injustice. Merritt v. State,
829 N.E.2d 472, 475 (Ind. 2005). Further, criminal statutes must be strictly construed against the
State, and “may not be enlarged beyond the fair meaning of the language used . . . .” Yao v.
State, 975 N.E.2d 1273, 1279 (Ind. 2012) (internal citation omitted).


       We have no doubt the “Family or household Member” statute contemplates the inclusion
of in-laws. See, e.g., City of Las Vegas v. Eighth Jud. Dist. Ct. ex rel. Cty. of Clark, 188 P.3d
55, 58-59 (Nev. 2008) (analyzing a similar statute and noting, it “plainly includes mothers-in-
law, fathers-in-law, sisters-in-law, and brothers-in-law” based in part on the fact that “a person of
ordinary intelligence would interpret the phrase ‘related by blood or marriage’ to include a
person’s direct in-laws”). But that is not to say the statute is limited to in-laws only. Indeed we
agree with the State’s contention that the statute appears to define family or household member
in broad terms. However, if literally construed the term “related by marriage” would encompass
not only the attenuated relationship between Warren and Suggs, but it would also include even
far more attenuated relationships as well, say for example, the aunts and uncles of second
cousins three times removed.


       We are not persuaded that by use of the term “related by marriage” the legislature
intended to include an infinite variety of relationships whose only connection is a marriage or
series of marriages identified somewhere on the remote branches of a family tree. The statute is
thus ambiguous in that it admits of more than one interpretation. We therefore seek to give a
practical application to the meaning of the statute by construing it in a way that avoids absurdity.
See Merritt, 829 N.E.2d at 475.



                                                 5
       “Related by marriage” is commonly referred to as affinity, which is defined as “the
connection existing in consequence of marriage between each of the married persons and the
kindred of the other. It is distinguished from consanguinity, which denotes relationship by
blood.” Tegarden v. Phillips, 42 N.E. 549, 551 (Ind. App. 1895). The Court of Appeals has
elaborated, “a husband is related by affinity to all the [blood relatives] of his wife and vice versa
the wife to the husband’s [blood relatives]; for the husband and wife being considered one flesh,
those who are related to the one by blood are related to the other by affinity.” White v. State,
756 N.E.2d 1057, 1060-61 (Ind. Ct. App. 2001) (quotation omitted); see also Black’s Law
Dictionary 1480 (10th ed. 2014) (defining “relative by affinity” and explaining: “Based on the
theory that marriage makes two people one, the relatives of each spouse become the other
spouse’s relatives by affinity.”).


       Nonetheless a relationship by affinity is not unlimited, hence the maxim “affinis mei
affinis non est mihi affinis . . . . A relative of my relative by marriage is not my relative.”
Ballentine’s Law Dictionary with Pronunciations 45 (3d ed. 1969); accord John Trayner, Latin
Phrases and Maxims: Collected from the Institutional and other Writers on Scotch Law; with
Translations and Illustrations 22 (Edinburgh, William Paterson 1861) (writing that “Affinitas
affinitatis” translates as “Affinity of affinity” and explaining: “This constitutes no relationship.
The brother of a husband is no way thereby related to the sister of the wife.”). Further, “[t]here
is no affinity between the blood relatives of one spouse and the blood relatives of the other. A
husband is related by affinity to his wife’s brother, but not to the wife of his wife’s brother.
There is no affinity between the husband’s brother and the wife’s sister.” 2 Charles E. Torcia,
Wharton’s Criminal Law § 242 at 573 (15th ed. 1994) (footnotes omitted); see also White, 756
N.E.2d at 1061 (noting “the [blood relatives] of the husband are not at all related to the [blood
relatives] of the wife” (citation omitted)).


       It appears to us that rather than extending the scope of “related by marriage” to an infinite
configuration of marital relationships the legislature intended instead to employ the term in its
commonly understood meaning namely, related by “affinity.” As applied to the facts here, we




                                                 6
assume for the sake of discussion that Suggs’ aunt is his mother’s sister.2 Suggs is obviously
related by blood to his mother and his mother’s sister. As for Warren, although she is related by
blood to her own brother and related by affinity to her brother’s wife (the sister of Suggs’
mother), she is not related by blood or affinity to Suggs. And this is so because Suggs is the
blood relative of one spouse—his mother’s sister—and Warren is the blood relative of the other
spouse—her own brother. “There is no affinity between the blood relatives of one spouse and
the blood relatives of the other.” 2 Wharton’s Criminal Law § 242 at 573.


        In essence, the evidence is not sufficient to show that Suggs is related to Warren by
marriage as the term is used in Indiana Code section 35-31.5-2-128. Accordingly, Warren is not
a family or household member within the meaning of the statute elevating misdemeanor battery
to a level 6 felony.


                                                Conclusion


        We reverse Suggs’ conviction for battery as a level 6 felony and remand this cause to the
trial court with instructions to enter judgment on battery as a class A misdemeanor and to
resentence accordingly.


Rush, C.J., and Dickson, David and Massa, JJ., concur.




2
  The record is silent concerning the way in which Suggs’ aunt is so classified. There are at least two
possibilities: (1) she is the sister of either Suggs’ mother or father, or (2) she is married to the brother of
either Suggs’ mother or father. However, this silence does not affect our analysis.



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