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State v. Zarate

Court of Criminal Appeals of Tennessee, Knoxville

July 5, 2019

STATE OF TENNESSEE
v.
JAIME F. ZARATE

          Session November 28, 2018

          Appeal from the Criminal Court for Hamilton County No. 286916 Barry A. Steelman, Judge.

         Defendant, 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          D. 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.

          Thomas T. Woodall, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert W. Wedemeyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, JUDGE.

         Background

         Initially, 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 he worked.
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 out with?"
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.

         She 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."

         C.E. 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 advocacy center."

         Dr. 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.

         The 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.

         Investigator 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.

         Sergeant 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 different room.

         Sergeant 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.

         Defendant 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.

         Special 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 locations?
[Special Agent Lowe]: It was a full profile, so we have 15 locations.
[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 stochastic threshold.
[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 the jury?
[Special Agent Lowe]: Yes.
[Defense Counsel]: It's not possible? I want to make sure.
[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 profile up.
[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 transfer.
[Defense Counsel]: Okay.
[Special Agent Lowe]: My opinion is it's more direct contact.
[Defense Counsel]: Okay. Your test now could pick up a direct transfer of
that much, but the test you had then could not; is that what you're saying?
[Special Agent Lowe]: It still wouldn't pick it up as strong as it did. It was a very ...

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