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State v. Cooke12/28/1999
The Defendant, John D. Cooke, III, was convicted by a Madison County jury of aggravated sexual battery, assault, contributing to the delinquency of a minor, and unlawful possession of a firearm. He was sentenced to nine years for aggravated sexual battery, six months for assault, eleven months twenty-nine days for contributing to the delinquency of a minor, and thirty days for unlawful possession of a firearm, all to be served concurrently. In this appeal as of right, the Defendant presents the following seven issues for review:
I. Did the trial court err in instructing the jury regarding the State's election of which incident of aggravated sexual battery upon which they were proceeding?
II. Did the trial court improperly instruct the jury as to the different offenses for which he was charged, specifically with respect to any lesser included offenses?
III. Did the trial court err by denying the Appellant's motions to have the victim psychologically evaluated or to secure the attendance of out-of-state witnesses?
IV. Was the evidence insufficient to convict the Appellant of aggravated sexual battery, provocative touching assault, contributing to the delinquency of a minor, and unlawful possession of a firearm?
V. Did the trial court err by permitting the State to introduce evidence of other alleged acts as to this victim in violation of Rule 404(b) of the Tennessee Rules of Evidence?
VI. Was the sentence excessive in view of the State's failure to establish any enhancement factors such that the minimum sentence should have been applied?
VII. Was the Appellant deprived of a fair trial by virtue of the trial court's limitation of the cross-examination of Roger Curry?
After reviewing the record, we find no reversible error and thus affirm the judgment and sentence of the trial court.
Evidence at trial showed that on February 22, 1995, the Defendant was present with the eleven-year old victim, M.J., in the United States District Courtroom in Jackson Tennessee, observing the criminal trial of Robert Smith, the Defendant's former employer . Mr. Smith had terminated the Defendant's employment, and the Defendant had filed a lawsuit against Mr. Smith as a result. The criminal trial had begun the day before, and the Defendant and M.J. were present on that date as well. Deputy U.S. Marshall Richard Bateman noticed the two the previous day because they were the only spectators, and on occasions they would be sitting very close together with the Defendant's arm around the child and the child's head on the Defendant's shoulder. Bateman thought their behavior was "kind of weird," but assumed the two were related. The behavior continued the next day.
On February 22, the second day of the trial, Mr. Smith's attorney, Ed Chandler, approached Bateman, told him that there "was a love affair going on back in the courtroom," and referred to the Defendant as a "pedophile." Bateman then discussed the situation with Roger Curry, an FBI Agent who was in the courtroom, and the two of them talked to Judge James D. Todd, the U.S. District Judge presiding over the criminal case. Agent Curry called the Jackson Police Department, which sent two officers out to investigate. After the officers observed the occurrences in the courtroom for a few minutes, Bateman escorted the Defendant out of the courtroom, and he was questioned by the police. At trial, Bateman described the conduct between the Defendant and M.J. as "unnatural."
Judge Todd testified that he noticed a man and a boy in the courtroom during the criminal trial, but had not paid much attention to them because he was concentrating on
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