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.
2
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.
3
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.
4