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, JUDGE
2

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. 
3

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. 
4

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.