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FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA JUN – 4 2002 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JAMES W. PATTERSON CLERK TASHIRO RUDY TILLMAN, ) NOT FOR PUBLICATION ) Appellant, ) V. ) Case No. F 2001-465 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) SUMMARY OPINION JOHNSON, VICE-PRESIDING JUDGE: Appellant, Tashiro Rudy Tillman, was convicted by a jury in Tulsa County District Court, Case No. CF 2000-1842, of Unlawful Possession of a Controlled Drug with Intent to Distribute, in violation of 63 .S.Supp. 1999, § 2-401, after former conviction of a felony (Count 1) and of Obstructing an Officer, in violation of 21 O.S.1991, § 540 (Count 2). Jury trial was held on April 2nd – 4th, 2001, before the Honorable Thomas Gillert, District Judge. The jury set punishment at ten (10) years imprisonment on Count 1 and imposed a One Thousand Dollar ($1,000.00) fine; on Count 2, the jury assessed a Five Hundred Dollar ($500.00) fine. Judge Gillert sentenced Appellant on April 9, 2001, in accordance with the jury’s verdicts. From the Judgment and Sentence imposed, Appellant filed this appeal. Appellant raises four propositions of error: 1. The evidence was insufficient to support a conviction for Possession of Cocaine with Intent to Distribute; 2. Appellant’s statement made during booking that he was “unemployed” should have been suppressed; 3. The statements of the prosecutor served to deny appellant’s right to a fair trial pursuant to the Sixth and Fourteenth Amendments to the United States Constitution; and 4. Appellant was improperly sentenced in violation of 22 O.S. § 996.3. After thorough review of the propositions raised, the entire record before us, including the original record, transcripts and briefs of the parties, we have determined that the convictions should be affirmed. However, we find the issue raised in Proposition 4 has merit and the sentence imposed for Count 1 is hereby VACATED and REMANDED TO THE DISTRICT COURT FOR RESENTENCING for the reasons set forth below. Proposition 1 does not warrant relief, as sufficient evidence was presented from which the jury could reasonably find Appellant possessed crack cocaine with intent to distribute. Spuehler v. State, 1985 OK CR 132, I 7, 709 P.2d 202, 203-204. No plain error occurred when the trial court allowed officer Franklin to testify that Appellant stated he was unemployed during the booking process. Gilbert U. State, 1997 OK CR 71, 951 P.2d 98, cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998); Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990). Proposition 2 is therefore denied. The allegations of prosecutorial misconduct do not require reversal or modification of sentence. Only two of the complained of comments were objectionable and the cumulative effect of those comments did not deprive Appellant of a fair trial. Spears v. State, 1995 OK CR 36, 1 60, 900 P.2d 431, 2 445, cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995). Proposition 3 is denied. Lastly, we find merit to the claim raised in Proposition 4. The record does not reflect Appellant effected a knowing waiver of his statutory right to be sentenced under the Delayed Sentencing Program for Young Adults. 22 O.S.2001, § 996.3. Accordingly, the sentence imposed by the trial court on Count 1 is hereby VACATED and REMANDED TO THE DISTRICT COURT FOR RESENTENCING pursuant to 22 O.S.2001, § 996.3. DECISION The conviction for Count 1 in Tulsa County District Court, Case No. CF 2000-1842, is hereby AFFIRMED, but the sentence is VACATED and REMANDED TO THE DISTRICT COURT FOR RESENTENCING; the Judgment and Sentence imposed for Count 2 is hereby AFFIRMED. APPEARANCES AT TRIAL APPEARANCES ON APPEAL MARNA S. FRANKLIN STUART SOUTHERLAND ATTORNEY AT LAW ASST. PUBLIC DEFENDER 403 SOUTH BOULDER PYTHIAN BUILDING, SUITE 300 TULSA, OKLAHOMA 74103 423 SOUTH BOULDER ATTORNEY FOR THE DEFENDANT TULSA, OKLAHOMA 74103 ATTORNEY FOR APPELLANT W.A. DREW EDMONDSON DAVID C. YOULL ATTORNEY GENERAL OF OKLAHOMA ASST. DISTRICT ATTORNEY KEELEY L. HARRIS 406 COURTHOUSE ASSISTANT ATTORNEY GENERAL 500 SOUTH DENVER 112 STATE CAPITOL BUILDING TULSA, OKLAHOMA 74103 OKLAHOMA CITY, OK 73105 ATTORNEY FOR THE STATE ATTORNEYS FOR STATE 3 OPINION BY: JOHNSON, V.P.J. LUMPKIN, P.J: CONCURS CHAPEL, J.: CONCURS STRUBHAR, J.: CONCURS LILE, J.: CONCURS RE 4

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