*1 fore, in the affirmance of this I concur
judgment. CLOPTON, Appellant,
Billy Gene Oklahoma, Appellee.
The STATE of
No. F-84-241. Appeals
Court of Criminal of Oklahoma.
Aug. 31, 1987. Schay, Appellate
E. Alvin Public Defend- Norman, er, appellant. *2 Gen., Turpén, Atty. criminologist and Susan for the
Miсhael C. Oklahoma State Bu- Gen., Dickerson, Investigation. Atty. Okla- reau of Asst. Stewart City, appellee. for homa Appellant asserts under his first as
signment error of that the trial court erred OPINION when it jury instructed the under thе Ha provi bitual Criminal Act rather than the BRETT, Presiding Judge: provided by sions the Uniform Controlled appellant, wаs tried Billy Clopton, Gene Substance Act. of Posses- by jury for the crime Unlawful against The Information ap- filеd the the Substance, Dangerous sion of a Controlled pellant specifically alleged that hе commit- After Former of Two or More Conviction ted O.S.1981, a violation of Title 63 2-§ O.S.1981, in violation of 63 2- Felonies § 402(B)(1) prior after Uniform Controlled 402(B)(1) in in Case No. CRF-83-263 the Substance Act conviction. Title 63 O.S. County. Court of The District Cleveland 1981, 2-402(B)(l) provides that a violation § appellant represented by was The counsel. of punishable that by imprison- section jury guilty a of and set returned verdict (4) ment for less years not than four nor twenty (20) рunishment years’ imprison- (20) years. more Clearly, than 2- Section appel- The trial the ment. court sentеnced 402(B)(1) the of Uniform Controlled Sub- jury’s in the lant accordance with verdict. specific provision stаnce Act makes for en- sentence, judgment and ap- From this the punishment O.S.1981, hancement of and 21 pellant appeals to this Court. provides provisions 11 specific § on approximately At 11:20 a.m. Mаrch punishment general provi- control over 10, 1983, the appellant stopped was a sions. City Mоore of Police Officer. Officer statutes, Considering plainly these it was pulled appellant Mоore the over for error for trial in the court this case to signal change. a to lane Officer Moore jury instruct the under the Crimi Habitual through a license conducted driver’s check jury nal Act. The returned a verdict of police dispatcher the and learned that the guilty a and recommended sеntence of appellant’s under Driver Im- license was twenty the sen years, which is minimum provement Suspension. The was permitted tence Crimi under the Habitual Driving placed then under arrest for Under must, modify apрel nal Act. We therefore Suspension. placed ap- Officer Moore the provided lant’s to the minimum sentence pellant police the proceeded in vehicle and punishment рrovision under the enhanced car, appellant’s to the per City search the Act, of the Uniform Controlled Substance impoundment procedure. of Moore’s Dur- (4) years. Hicks Okla which is four ing inventorying thе course of contents the homa, 2227, 447 U.S. S.Ct. 65 100 car, of appellant’s the Officer Moore found (1980). also, Faubion v. L.Ed.2d 175 See glass three vials. Because he believed the (Okl.Cr.1977). P.2d 1022 569 substance, vials contained a сontrolled Offi- Under Oklahoma law a defendant placed cer in Moore submit- them OSBI statutory right has a have his sentence envelope. tal 22 jury guilty. set which finds Appellant was advised of his Miranda O.S.1981, However, whеre sen 926. § rights by Larry Harper, Detective who had minimum, tence has modified to the been arrived to assist Offiсer Moore. Detective preju no clearly suffered Harper spoken had earli- with setting sеn dice from Court’s of the this day concerning er in the tence, possibly jury could not because suspect investiga- status as a a burglary in Nipps imposed punishment. have a lesser Station, tion. At the Policе appel- Moore P.2d lant told Officer Moore and Har- Detective per PCP, that the vials in his second as drug Appellant contained asserts forced, phencycline. presence signment jury in error was of PCP of that the forms, Cardona, vials a of was confirmed Patrick a the verdict to return verdiсt 588-590 (4)
guilty the enhanced offense of Sentence is MODIFIED years’ on to four Specifically, appellant drug imprisonment judgment and convictions. otherwise forms did not complains that the verdict sentencе is AFFIRMED. to return a verdict of
allow the
possession
without former conviction
BUSSEY, J., concurs.
provision.
PARKS, J., sрecifically concurring.
*3
State,
(Okl.Cr.
In Reed v.
Appellant’s assignment third of er improрer prosecutorial
ror contends that during closing argument
comments de
prived of a fair trial. We note that allegedly improper
none of the comments objection request either
drew or a disregard be admonished to Consequently, appellate
remarks. review except
is waived for fundamental error. (Okl.Cr.
Abbott v.
1986). Wе find that none of the remarks fundamentally prejudicial
were so to the not, that the trial court could jury, any
instructions to the have corrected assignment
error. This is without merit.
Finally, appellant asserts that his
being stopped subsequently arrested subterfuge,
for traffic violations awas ren
dering illegal his arrest and the evidence pursuant
seized suppressible. to that arrest subterfuge,
While there is no of a evidence
as both the arrest and the sub
sequent legal, search and seizure were
record reveals that has failed to
properly preserve appeal any error on general
this issue. party rule is that a may prejudiced by improper
who be object
admission of evidence should as soon apparent
as it becomes the evidence would upon by opposing party.
be relied Lav
icky
By object when evidence of the presented trial, appellant
vials was any
waived error.