ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

TIMOTHY BURCHFIELD AND

DEBRA K. BURCHFIELD

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1191

February 18, 2004

APPEAL FROM THE DREW COUNTY CIRCUIT COURT

[NOS. CR-2001-100-2A, CR-2001-100-2B]

HON. ROBERT B. GIBSON, JR.,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

The appellants in this criminal case, husband and wife, were convicted of manufacturing methamphetamine, possession of drug paraphernalia with intent to manufacture methamphetamine, and possession of methamphetamine. From that decision, comes this appeal.

The convictions arose out of an event that took place on January 20, 2001. Viewing the evidence in the light most favorable to the appellee, as we must when determining the sufficiency of the evidence to support a criminal conviction, Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002), the record shows that a Wal-Mart security guard reported to Deputy Marcie Bruner that appellants had purchased two boxes of sinus tablets, Prestone starting fluid, large gloves, and a chopper. Deputy Bruner arrived at the Wal-Mart as appellant Timothy Burchfield entered a van. His wife, appellant Debra Burchfield, was already inside the van. The van left the Wal-Mart parking lot and went north on U.S. 425, followed by Deputy Bruner's vehicle, a vehicle driven by Chief Deputy Jimmy Singleton, and a vehicle driven by a state trooper. The van pulled into a driveway, turned around, and pulled back onto U.S. 425 heading south. The police vehicles turned and followed the van. Deputy Bruner turned on her blue lights and stopped appellant's van when it turned into the Heartland Bank parking lot without using a turn signal. Chief Deputy Singleton immediately pulled up behind Bruner's vehicle.

Appellant Timothy Burchfield exited the van, was asked by Chief Deputy Singleton to produce his driver's license, replied that his driver's license was suspended, and was arrested for driving on a suspended license. Simultaneously, Deputy Bruner asked Debra Burchfield to step out of the van, and saw a plastic bag with residue on the van's dashboard; stripped lithium batteries; a crusher containing crushed pills under the passenger seat; and a Wal-Mart bag containing pills and starting fluid behind the passenger seat. A bag containing methamphetamine wrapped in aluminum foil was found on the ground next to the passenger side of the van, and a subsequent search of the van by the Drug Task Force found a five-gallon anhydrous ammonia tank; liquid fire; boxes of Contac; a plastic hose; a funnel; starting fluid; salt; coffee filters; and Coleman fuel. 

TIMOTHY BURCHFIELD'S APPEAL

Appellant Timothy Burchfield's attorney has filed a brief and a motion to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j), stating that there is no merit to the appeal. This brief contained an abstract of the proceedings, including all rulings adverse to the appellant on all objections, motions, and requests made by either party, together with an argument section consisting of an explanation as to why each adverse ruling is not a meritorious ground for reversal. Timothy Burchfield was informed that he was entitled to file within thirty days a pro se brief advancing any points for reversal he desired to raise on appeal.

Timothy Burchfield has filed a statement of points, asserting with regard to his manufacturing conviction that merely crushing the pills is not a substantial step in the manufacture of methamphetamine in the absence of a chemical reaction and, with regard to his possession charge, that his conviction for both possession and manufacture violates double jeopardy. These points lack merit. First, Arkansas Code Annotated § 5-64-401(a)(1)(i)(Repl. 1997) does not require that methamphetamine actually be produced from the manufacturing process to sustain a conviction. Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003). Here, there was evidence that the materials were on hand and that the process had been begun. Second, appellant's double jeopardy argument is not preserved for review because there was no objection on this ground below. State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000).

We find that Timothy Burchfield's attorney has complied with the requirements of Ark. Sup. Ct. R. 4-3(j) and that the appeal is without merit. Consequently, we grant the motion to withdraw as counsel and affirm Timothy Burchfield's convictions.

DEBRA BURCHFIELD'S APPEAL

Appellant Debra Burchfield argues on appeal that her convictions should be overturned because there is no evidence that she possessed any of the items in the van. There is no merit to this argument. In Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002), the Arkansas Supreme Court said that:

[T]he State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed. Darrough v. State, 330 Ark. 808, 957 S.W.2d 707 (1997). We have further held that while constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused's personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest. Id. Possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control.

Bradley v. State, 347 Ark. at 522-23, 65 S.W.3d at 877-78. Here, there was evidence that much of the paraphernalia was in plain view when Deputy Bruner removed appellant Debra Burchfield from the van; that the majority of the items, including the crusher and crushed pills, were under her seat or immediately adjacent to it; that she was not a stranger to the vehicle, but was instead the wife of its owner; and that she acted suspiciously during the arrest, evincing awareness of her own guilt by attempting to dispose of the methamphetamine. Consequently, we hold that there was substantial evidence that Debra Burchfield was in possession of the contraband, and we affirm her convictions.

Affirmed.

Gladwin and Baker, JJ., agree.