FOR PUBLICATION


ATTORNEY FOR APPELLANT:                    ATTORNEYS FOR APPELLEE:

TIMOTHY J. O’CONNOR                        GREGORY F. ZOELLER
O’Connor & Auersch                         Attorney General of Indiana
Indianapolis, Indiana
                                           KARL M. SCHARNBERG
                                           Deputy Attorney General
                                           Indianapolis, Indiana


                       IN THE                                    Feb 28 2013, 10:01 am

             COURT OF APPEALS OF INDIANA

VERDYER CLARK,                             )
                                           )
     Appellant-Defendant,                  )
                                           )
            vs.                            )      No. 49A04-1202-CR-66
                                           )
STATE OF INDIANA,                          )
                                           )
     Appellee-Plaintiff.                   )


              APPEAL FROM THE MARION SUPERIOR COURT
                   The Honorable Richard D. Sallee, Judge
                  The Honorable Teresa Hall, Commissioner
                     Cause No. 49G16-1003-FD-18840


                            February 28, 2013

             OPINION ON REHEARING – FOR PUBLICATION


MAY, JUDGE
       The State petitions for rehearing in Clark v. State, 978 N.E.2d 1191 (Ind.

Ct. App. 2012), where we reversed Clark’s conviction of Class D felony battery.

The State was required to prove, as an element of that offense, that Clark was

eighteen or older when he battered a child younger than fourteen.

       As evidence of his age, the State provided two documents from a social

worker. One, “Preliminary Report of Alleged Child Abuse or Neglect,” lists Clark

as “Other Person Responsible for Child(ren)” and shows his age as twenty-three.

Id. at 1193.   The other document, “Social Work ED Assessment Plan Final

Report,” includes in its narrative the statement “Mother has a boyfriend of 9

months Verdyer Clark age 23.” Id. The source of the social worker’s information

about Clark’s age was not clear from the record.

       The State argued on appeal that the hearsay statements by the social worker

were admissible under Ind. Evidence Rule 803(4), as statements “made by persons

who are seeking medical diagnosis or treatment and describing medical history, or

past or present symptoms, pain, or sensations, or the inception or general character

of the cause or external source thereof insofar as reasonably pertinent to diagnosis

or treatment.” Id. at 1195-96 (emphasis added in Clark). We held the statements

were not admissible under that hearsay exception, as the social worker was the

declarant and she was not a person “seeking medical diagnosis or treatment.” Nor

was it apparent why evidence of Clark’s age was “reasonably pertinent” to the

diagnosis or treatment of the infant victim. Id. at 1197.

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       On rehearing, the State asserts we held “a social worker would always be a

declarant in child abuse cases, even when the social worker is merely a scribe.”

(Appellee’s Petition for Rehearing at 1) (emphasis added). It further asserts we

held “the age of the perpetrator is never pertinent to the medical diagnosis or

treatment.” (Id. at i) (emphasis added). We grant rehearing to explicitly restate

the limited holdings in that decision.

       On rehearing, the State asserts it is “evident,” (Appellee’s Petition for

Rehearing at 4), the information came from the victim’s mother and the social

worker “was merely the means by which information from Mother was recorded.”

We acknowledge the social worker’s report did indicate the victim’s mother was

the source of some of the information she obtained. But the record is silent on the

source of her information about Clark’s age, and we are limited by that record.

See Zapffe v. Srbeny, 587 N.E.2d 177, 180 (Ind. Ct. App. 1992) (“[m]atters outside

the record cannot be considered by the court on appeal. We must decide the case

on the record before us, and cannot speculate as to the actual facts of a case”)

(citation omitted).

       Here, the record and argument did not permit us to decide whether a social

worker would “always” be a declarant in child abuse cases, and we did not so

hold. We leave for another day the determination whether or when a social

worker is a declarant in a child abuse case.



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       Nor did we hold “the age of the perpetrator is never pertinent to the medical

diagnosis or treatment.”      (Appellee’s Petition for Rehearing at i) (emphasis

added). In our original decision we said only that the information in the record

before us about Clark’s age had no “apparent relevance to a diagnosis of the

child’s injuries.” 978 N.E.2d at 1197 (emphasis added). The relevance was not

apparent because on appeal, the State offered no “explanation why information

about Clark’s age might be relevant to a diagnosis of the child’s injuries.” Id. at

1196 n.7 (emphasis in original). Again, a determination whether the age of a

perpetrator is relevant to a child victim’s medical diagnosis or treatment is best left

to another case.

       In light of the record and the State’s argument on appeal, we conclude that

we correctly decided the question presented in the first instance, and we therefore

affirm our opinion in all material respects.

BAKER, J., and SHEPARD, Sr. J., concur.




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