Court of Criminal Appeals of Tennessee, Knoxville
Session November 28, 2018
from the Criminal Court for Hamilton County No. 286916 Barry
A. Steelman, Judge.
Jaime F. Zarate, was convicted of rape of a child by a
Hamilton County jury. The trial court imposed a sentence of
thirty years at one-hundred percent to be served in the
Department of Correction. On appeal, Defendant argues that
the evidence was insufficient to support his conviction, that
the prosecutor improperly misstated evidence during closing
arguments, that the trial court erred by admitting the
victim's statement to her mother and by admitting the 911
call, and that the trial court improperly sentenced him.
After a thorough review of the record, we affirm the judgment
of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Marty Lasley, Chattanooga, Tennessee, for the appellant,
Jaime F. Zarate.
Herbert H. Slatery III, Attorney General and Reporter;
Garrett D. Ward, Assistant Attorney General; M. Neal
Pinkston, District Attorney General; and Leslie Longshore and
Kevin Brown, Assistant District Attorneys General, for the
appellee, State of Tennessee.
T. Woodall, J., delivered the opinion of the court, in which
James Curwood Witt, Jr., and Robert W. Wedemeyer, JJ.,
T. WOODALL, JUDGE.
we note that in order to protect the minor victim, she will
be referred to solely throughout this opinion as "the
victim." Because the victim was a minor at the time of
the offenses, we will refer to the victim's mother and
other members of the victim's immediate family by their
initials in order to further protect the victim's
identity. The victim's mother, C.E., testified that
Defendant was a friend and that she had rented a room from
Defendant while her husband was in an immigration detention
center. She and her husband moved into another residence
after he was released; however, C.E. and her husband remained
on friendly terms with Defendant. On October 10, 2012, C.E.
called Defendant to see if the victim, who was six years old,
could go to see a movie with him. She testified:
That day I called him or he called me - - no, I called him
because [the victim] wanted to go to the movies, and at that
time my husband had just gotten out of jail and we only had
one car, so I couldn't get out to take her places because
I really trusted [Defendant]. We all went out together to
skate, to go get ice cream. So my daughter said, "I want
to go to the movies."
I said to him, I called him, I said, "Are you going to
go out to the movies with the other people that you always go
And he says, he said yes, and I said, "[The victim]
wants to go. Can you take her with you?"
And he said, "Yes, I'll pick her up" at a
certain time, I don't remember exactly. He picked her up,
they went to the movies.
I began to get uncomfortable when it was getting later and
they hadn't come back yet.
thought that Defendant picked the victim up at approximately
9:00 p.m. to see the movie. C.E. testified that she later
called Defendant to see where he and the victim were, and
Defendant said, "Yeah, we're coming."
testified that she hugged and kissed the victim when she
arrived home, and she noticed that the victim smelled like
saliva. She then asked the victim if someone had kissed her
on the mouth or the cheek. C.E. noticed that the victim
became nervous, and the victim told her that Defendant had
kissed her. When C.E. asked if anything else happened, the
victim began to cry and said that Defendant kissed her mouth,
her neck, and her vagina. C.E. immediately called 911. She
testified: "Well, I was in shock. The first thing that
came to mind was to call the police at 911." C.E.
further said: "I thought the worse. I thought that he
had abused her, raped her; and while I was on the phone, I
took her pants off to make sure nothing was wrong." A
police officer later arrived at the house, and C.E. told him
everything. Afterwards, C.E. took the victim to the T.C.
Thompson Children's hospital at Erlanger. A rape kit
examination was performed on the victim, and C.E. spoke with
police, Sergeant Tracy May, and the doctor. The following
day, October 11, 2012, she took the victim to "the
Tamara Davis is employed by the T.C. Thompson Children's
Hospital as a pediatric emergency room physician. She spoke
with C.E. who told her that the victim disclosed to her
"a family friend had kissed her mouth and face and
licked and touched her vaginal area and buttocks without
penetration." Dr. Davis performed a
"head-to-toe" examination of the victim and
collected a rape kit. She used a black light for a portion of
the exam and then swabbed those areas for DNA evidence. Dr.
Davis noted that areas around the victim's mouth and
outer vaginal lips/buttocks "fluoresced" from the
black light. Dr. Davis testified:
It just kind of ties in with the fact that this patient
disclosed to mom that someone could have potentially done
something to put some sort of bodily fluids there, because
the patient disclosed to mom specifically that the family
friend kissed her mouth and face and licked and touched her
vaginal area and buttocks. So with those areas
immunoflourescing or lighting up with the black light, they
could potentially be sites for bodily fluid that we could
swab to get DNA evidence.
victim, now ten years old, testified that she knew Defendant
because her family previously lived with him. She recalled
going to see a movie, Hotel Transylvania, with Defendant on
one occasion. The victim said that Defendant had asked her if
she wanted to go to the movie. Before the movie, Defendant
took her to Walmart and bought her a coloring book. After the
movie, Defendant took her to his house, and then to his
bedroom. The victim noted that "Tito," another
resident, was in his own room when she and Defendant arrived
at the house. The victim testified that Defendant sat her on
his bed, pulled her pants and underwear down and began
licking "[i]n her private" and on her neck, and he
kissed her on the mouth. The victim testified that she told
Defendant to stop but he did not stop. Defendant later took
her home, and she told her mother what happened. Her mother
called police, and the victim was taken to the doctor.
William Salyers of the Chattanooga Police Department was
assigned to the crime scene unit in October 2012. On October
15, 2012, he collected a buccal swab from Defendant to test
for DNA. He also photographed Defendant's Cadillac
Escalade and swabbed the steering wheel for DNA.
Tracy May of the Chattanooga Police Department testified that
she worked with the family investigations unit in October
2012. She received a call shortly before midnight on October
10, 2012, from a patrol officer who had taken a report
concerning the victim. Sergeant May told the officer to have
C.E. and the victim go to the Children's Hospital at
Erlanger, and Sergeant May met them there. Sergeant May spoke
with hospital staff and C.E., and she asked hospital staff to
perform a rape kit examination on the victim. Sergeant May
explained that she did not speak with the victim due to her
age and noted that "we have forensic interviewers that
usually we take them to do that part, because I'm not
trained to speak with a six-year-old like that."
Sergeant May then collected the rape kit from Dr. Davis and
transported it to the property division at the Chattanooga
Police Department. She also arranged for the victim to be
interviewed by a forensic interviewer the following day,
October 11, 2012. Sergeant May observed the interview from a
May testified that a search warrant was served at
Defendant's residence on October 15, 2012. She noted that
a movie ticket stub to Hotel Transylvania was collected from
a bedside table in Defendant's bedroom. Officers also
collected the sheets, comforter, and towels from the room.
was taken into custody and transported to the police
department. Sergeant May testified that she interviewed
Defendant, and a translator was present for the interview.
Defendant was advised of his rights, which he waived. The
interview was recorded by both audio and video. Defendant
told Sergeant May that he kissed the victim on the cheek.
Sergeant May testified that Defendant's timeline of
events was consistent with that of the victim.
Agent/Forensic Scientist Kim Lowe of the Tennessee Bureau of
Investigation (TBI) crime laboratory, forensic biology unit,
testified that she tested the DNA evidence in this case.
Special Agent Lowe compared Defendant's DNA profile to
swabs taken from the victim's cheek, outer vaginal area,
and ear. She explained that DNA consistent in five locations
with Defendant's was found on the cheek swab. She also
testified that a full DNA profile that matched
Defendant's DNA in fifteen locations was found on the
victim's ear swab and vaginal swab. Special Agent Lowe
acknowledged that the DNA from the victim's cheek swab
could have been transfer DNA but the DNA from the ear and
vaginal swabs in her opinion was by direct contact. The
following exchange took place during cross-examination:
[Defense Counsel]: Okay. Now, c, the ear, had how many
[Special Agent Lowe]: It was a full profile, so we have 15
[Defense Counsel]: Fifteen locations. And so, in your
opinion, that is too
many locations to be [sic] come from a transfer?
[Special Agent Lowe]: Yes, especially since it was above our
[Defense Counsel]: Okay. All right. So are you - - I just
want to make sure I'm understanding - - your [sic]
telling the jury that you cannot have direct transfer of DNA
and will see 15 locations; is that what you're telling
[Special Agent Lowe]: Yes.
[Defense Counsel]: It's not possible? I want to make
[Special Agent Lowe]: It depends on how sensitive the kit is.
Our chemistries and so forth, like the new stuff nowadays, it
is possible, but the kits we used back then, they weren't
as sensitive, so it's a lot harder then to get the full
[Defense Counsel]: I understand it may be harder, but it - -
a 15-location direct transfer happens, it's just whether
your lab can pick it up with its particular test; correct?
[Special Agent Lowe]: Not necessarily.
[Defense Counsel]: Okay.
[Special Agent Lowe]: Unless he's, like, rubbing really
hard on that.
[Defense Counsel]: Okay.
[Special Agent Lowe]: But I highly doubt it would come from a
[Defense Counsel]: Okay.
[Special Agent Lowe]: My opinion is it's more direct
[Defense Counsel]: Okay. Your test now could pick up a direct
that much, but the test you had then could not; is that what
[Special Agent Lowe]: It still wouldn't pick it up as
strong as it did. It was a very ...