## 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 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, JUDGE2

The State petition s for rehearing in Clark v. State , 978 N.E.2d 1191 (Ind. Ct. App. 2012) , where we reversed Cl a rk’s conviction of Class D felony battery

. T he 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 socia l 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 i n 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 so cial worker were admissible under Ind. Evidence Rule 803(4), as s tatements “ 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 charact er 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

w ere not admissible under that hearsay exception , as t he 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

.3

On rehearing, th e State asserts we held “a social worker would always be a declarant in child abuse cases, even when the soci al worker is merely a scribe

. ” (Appellee’s Petition for R ehearing at 1) (emphasis added) . It further assert s we held “the age of the perpetrator is never pertin ent to the medical diagnosis or

treatment .” ( Id . at i) (e mphasis added). We grant rehearing to explicitly restate the limited holdings in that decision

. O n 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 w orker’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 a s to the actual facts of a case ”) (citation omitted). Here, t he record and argume nt 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. W e leave for another day t he determ ination whether or when a social worker is a declarant in a child abuse case.4

Nor did we hold “the age of the perpetrator is never pertinent to the medical diagnosis or treatment .” (Appellee’s Petition for R ehearing at i) (e mphasis added). I n our original decision we said only that the information in the record before us about Cla rk’ s age had no “ apparent relevance to a d iagnosis 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.” I d . 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.