Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13

- CM

- 323
E ARL W ORKMAN , A PPELLANT ,

V
. U NITED S TATES , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( CMD

- 11703

- 12 ) (Hon. Harold Cushenberry, Jr. , Trial Judge) (Submitted February 13 , 201 4 Decided July 31, 2014) Montrell L. Scaife was on the brief for appellant. Ronald C. Machen Jr. , United States Attorney, and Elizabeth Trosman , Christopher Macchiaroli , and L. Jackson Thomas II , Assi stant United States Attorneys, were on the brief for appellee.
Before F ISHER and B ECKWITH , Associate Judges , and F ERREN , Senior Judge

. B ECKWITH , Associate Judge : After a two

- day bench trial, Superior Court Judge Harold Cushenberry found a ppellant Earl Workman guilty of several charges stemming from a traffic stop during which police pulled Mr. Workman over for talking on his mobile phone in apparent violation of the Distracted Driving2

Safety Act 1 and matters escalated from there. Mr. Workman argues on appeal that the government failed to present constitutionally sufficient evidence to support one of his three convictions

— that for possession of an open container of alcohol (POCA)

. 2 Specifically, he contends that evidence that police observed an open container bearing a tequila l abel in the back seat of hi s car was insufficient to demonstrate beyond a reasonable doubt that the bottle contained at least one half of one percent alcohol by volume, as required under the POCA statute‟s definition of an “alcoholic beverage

. ” We agree, and reverse Mr. Workman‟s POCA conviction. We affirm his remaining convictions for assault on a police officer 3 and failure to obey a lawful order. 4

I.

Earl Workman was driving home from work when a police cruiser pulled him over after its three occupants, Metropolitan Police Department officers Bryan Cox, Jason Romlein, and James Chastanet , observed him using a mobile phone while he was driving

. Officer Cox, the driver of the police car, approache d the

1 D.C. Code § 50

- 1731.04 (2012 Repl.).

2 D.C. Code § 25

- 1001 (a)(2) (2012 Repl.).
3 D.C. Code § 22

- 405 (b) (2012 Repl.).

4 50 DCMR § 2000.2 (2012).3

driver‟s side of Mr. Workman‟s car while Officer Chastanet approached the passenger‟s side. After Mr. Workman provided his driver‟s license and registration to Officer Cox, Officer Chastanet noticed “ a glass bottle” that “appeared to be a tequila bo ttle” behind the driver‟s seat . Officer Romlein testified that he saw the tequila bottle too, and that “[w]hen [he] first saw it, it was standing up and you could clearly see that it was partially empty.” 5 Officer Chastanet communicated to his fellow off icers , using a predetermined hand signal , that Officer Cox should have Mr. Wo rkman step out of the vehicle. According to the officers‟ testimony, Mr. Workman refused to do so and the officers ultimately had to use force to make him comply.

After Mr. Workman was removed from his car and handcuffed , police searched the vehicle for “[a]dditional contraband that would have coincided with the open container of alcohol,” such as “ cups, flasks, other open containers of alcohol , ” but found nothing be sides the bottle with the tequila label that Officer Chastanet had observed

. Officer Cox testified that he saw the bottle but that he

5 The photograph taken of the bottle during the search depicts it lying among various objects on the floor of the back seat, and Officer Romlein testified that “in the photograph, it‟s seen laying [sic] on its side.” He could not recall, however, “if it was on the rear floorboard or on t he seat” when he first saw it. Office Chastanet testified that it was “on the seat” as opposed to the floorboard and that it was “behind the driver‟s seat on the left side of the passenger seat standing up.”4

“didn‟t examine it” and “didn‟t pick it up and look at it.” T he bottle was not taken into evidence , and at trial the government a dmitted photographs of the bottle on the floor of the car‟s back seat . The label on the bottle indicat ed that the tequila was

“ (80 proof) 40% alcohol by volume. ”
The trial court denied Mr. Workman‟s motion for judgment of acquittal on
the POCA count , though it noted that “there certainly could be an argument that you might put something other than tequila in a tequila bottle, and sometimes I do have in connection with these type of offenses the smell of alcohol on the breath, or something like that.” At the trial‟s conclusion , the court found Mr. Workman guilty of the POCA count, stating that the photographs introduced at trial were “compelling evidence beyond a reasonable doubt that [Mr. Workman] was in possession, constructively, of an open container of alcohol.” The court again stated that “there‟s a possibility that a person could put water in a tequila bottle,”
but conclud ed that “that would simply be speculation. And there‟s nothing that would support that at all, other than speculation. ” Mr. Workman appeals his conviction on the alcohol possession count

.
II.
The Due Process Clause of the U.S. Constitution prohibits a c riminal conviction unless the government establishes guilt of the essential elements of an5

offense beyond a reasonable doubt. In re Winship , 397 U.S. 358, 361

- 62 (1970). This standard of proof beyond a reasonable doubt “is not merely a guideline for the trier of fact” but “also furnishes a standard for judicial review of the sufficiency of the evidence.” Rivas v. United States , 783 A.2d 125, 134 (D.C. 2001) (en banc)

. When addressing a challenge to the sufficiency of the government‟s evidence of an
offe nse, we consider the evidence in the light most favorable to the government in determining whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 30 7, 316

- 20 (1979); Speight v. United States , 671 A.2d 442, 454 (D.C. 1996). “Slight evidence is not sufficient evidence,” and “[t]he requirement of proof beyond a reasonable doubt „means more than that there must be some relevant evidence in the record in support of each essential element of the charged offense.‟” Swinton v. United States , 902 A.2d 772, 776 n.6 (D.C. 2006) (quoting
Rivas , 783 A.2d at 134).

To establish Mr. Workman ‟s guilt of the POCA charge , the government had to prove that he “possessed in an open container an alcoholic beverage” in “[a] vehicle in or upon any street, alley, park, or parking area.” D.C. Code § 25

- 1001 (a)( 2 )

. The D.C. Code defines “ a lcoholic beverage” as “a liquid or solid, patented or not, containing alcoho l capable of being consumed by a human being.” D.C. Code § 25

- 101 (5) (2012 Repl.) . “The term „alcoholic beverage‟ shall not include6

a liquid or solid containing less than one

- half of 1% of alcohol by volume.” Id. ; see also Derosiers v. District of Colu mbia , 19 A.3d 796, 799 ( D.C. 2011). 6

Mr. Workman argues that the evidence introduced at trial was insufficient to prove that he was in possession of an open container of alcohol because the government “failed to provide any credible evidence that the bottl e contained alcohol.” The government counters that the bottle‟s label was sufficient circumstantial evidence to satisfy the statutory requirement , citing to various statutes and regulations imposing labeling requirements for alcoholic beverages in support of its view that “[l]abels are reliable indications of content, particularly in a business as well regulated as the liquor industry.”

We agree with Mr. Workman that in the circumstances of this case, the tequila label alone was insufficient evidence to sustain Mr. Workman‟s POCA conviction. Although the bottle ‟s label indicated an alcohol content of 40 percent,

6 An earlie r version of the POCA statute did not expressly define “open container,” and in Mitchell v. United States , a 2000 case interpreting that statute, we held that “[m]ere possession in a car of a closed bottle containing an alcoholic beverage does not, without more, furnish probable cause even where . . . the bottle is only three

- quarters full (indicating that it had been open at some prior time).” 746 A.2d 877, 886 (D.C. 2000) (emphasis in original). The statute was amended in 1998, and it now defines “open container” as “a bottle, can, or other container that is open or from which the top, cap, cork, seal, or tab seal has at some time been removed.” D.C. Code § 25

- 101 (35). In Bean v. United States , 17 A.3d 635, 637 (D.C. 2011), we held that “the 1998 amen dment rendered the Mitchell case inapposite.”7

the record is devoid of other evidence that the liquid found in the open container was, in fact, the tequila indicated on the label or any other kind of liquor

. None of the officers testified that the substance in the tequila bottle smelled or tasted l ike alcohol

. Police did not seize the bottle, and there was no evidence that any officer opened or inspected it. The officers found no cups, flas ks, or other alcohol in the

car , and there was no evidence that Mr. Workman had been drinking or appeared intoxicated.
The government correctly points out that the alcohol

- content element can be proved by circumstantial evidence, including “the judgment o f police officers who testified, based on their experience and good

- faith sensory observations, as to the identity of an allegedly alcoholic beverage.” Derosiers , 19 A.3d at 799

- 800. We have accordingly held that an officer ‟ s “knowledge, gained from experience, of the taste of whisky” was sufficient to prove that a beverage contained whisk y . Stagecrafters Club v. District of Columbia , 89 A.2d 876, 879 (D.C. 1952) . And we have upheld a POCA conviction based on an officer‟s “ sense of smell . . . combined with the significant circumstantial evidence that appellant had been recently drinking

. ” Derosiers , 19 A.3d at 801

.
A n experienced officer‟s testimony that a beverage smelled or tasted like alcohol is far more probative of wh at was actually in the bottle at the time police8

witnessed the alleged offense than a label , which , although solid proof of what was in the container when it was bottled and sold , reveals much less about what the bottle contained after it was opened and fo und its way to a heap of personal items in the back seat of a car. See, e.g. , B.B. v. State , 117 So. 3d 442, 444 (Fla. Dist. Ct. App. 2013) ( deeming a label to be insufficient to prove alcohol content)

. 7 W hile the government can prove that a beverage is alcoholic without chemical analysis,

see , e.g. , Derosiers , 19 A.3d at 797

- 801, we have considered proof of alcohol
content that was speculative or overly imprecise to be insufficient to sustain a POCA conviction

. See, e.g. , Reid v. District of Columbia , 980 A.2d 1131 , 1133

- 36 (D.C. 2009) (holding that the result of a breath

- test device that was held over an open container of liquid in an effort to measure alcohol content was not sufficient to convict appellant o f POCA )

. T he tequila label is some evidence that the liquid in the bottle contained alcohol, and the officers‟ observation of the label on the open container would give them probable cause to arrest

. S ee Bean v. United

7 The Florida court stated in B.B. that the government‟s case “lacked any evidence identifying the substance inside the can” besides a label indicating a brand of alcoholic beverage. As in the present case, t he police in B.B. did not “smell, test, or otherwise examine the liquid in the can to determine whether the beverage was alcohol” and did not preserve the can or its contents for purposes of trial. 117 So. 3d at 444. “ Even if this court accepted that Fou r Loco is a common brand of alcoholic beverage, the can was open when discovered by the deputy; thus, the label of the can cannot conclusively establish that the can contained alcohol. ” Id. The court therefore concluded that “the State presented insuffic ient evidence to prove that B.B. possessed alcohol. ” Id.9

States , 17 A.3d 635, 637 (D.C. 2011). But i t falls short of proof beyond a reasonable doubt that what was actually in the bottle when police found it half full of a clear liquid in the back seat of Mr. Workman‟s vehicle was tequila

. See Re id , 980 A .2d at 1136 (noting the uncertainty a bout a breath test device‟s ability to

measure “residual alcohol vapors in a cup

— as might have occurred, for example, had Reid finished a strong alcoholic drink a n d refilled his cup with „ just Kool

- Aid ‟ before going outside”).
The government argues that Bernard v. United States , 575 A.2d 1191 (D.C. 1990), in which we affirmed the appellant‟s drug possession convictions based on circumstantial evidence that the contraband he sold was in fact marijuana, compels affirmance of Mr. W orkman‟s POCA conviction

. In that case, the appellant was observed selling plastic packets out of a brown paper bag. Id. at 1192

. Although the packets he sold were not tested, police seized the brown paper bag and the remaining packets were found , after chemical analysis , to contain usable amounts of marijuana. Id . at 1194. We explained that

[i] f Bernard was making street sales of material which came from a bag containing marijuana and which had been packaged for sale, then it was most improbable that the items being sold were of a different character from those which remained in the bag. Although it is theoretically possible that Bernard‟s sales were of something other than marijuana, that possibility appears remote indeed.10

Id

. Here, unlike in Berna rd , no additional circumstantial evidence corroborate d the officers‟ hunch that the bottle contained tequila , and the possibility that the bottle contained something besides alcohol is far less remote than in Bernard

. Although a factfinder need not rule out every reasonable hypothesis consistent with innocence in order to convict, “[o]n the skimpy record before us, we conclude that a reasonable trier of fact could not find beyond a reasonable doubt ” that the liquid in the bottle “ was more t han .5% alcohol by volume.” Reid , 980 A.2d at 1136

- 37.

We reverse Mr. Workman‟s POCA conviction and affirm the Superior Court‟s judgment in all other respects

. 8

8 Mr. Workman also claims that the police lacked probable cause to conduct the traffic stop on July 5, 2012, and that the trial court erred in concluding otherwise. To initiate a valid stop, however, the officers need ed only a reasonable, articulable suspicion that Mr. Workman was v iolating the hands

- free statute. See Milline v. United States , 856 A.2d 616, 619 (D.C. 2004) (citing Terry v. Ohio , 392 U.S. 1, 21 (1968)). The trial court credited the testimony of the officers who witnessed Mr. Workman holding his phone close to his face and found Mr. Workman‟s testimony “less credible because . . . he has more to lose in this case.” W hat the officers saw

— “ the defendant having a cell phone in his hand [when] it was clear [that] he wasn‟t using a hands free device”

— supported a reasonable suspicion that Mr. Workman‟s phone use was in violation of the hands

- free statute. See Pleasant

- Bey v. United States , 988 A.2d 496, 500 (D.C. 2010) (“„[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct‟”) (quoting United States v. Arvizu , 534 U.S. 266, 277 (2002) ). The trial court did not err in denying Mr. Workman‟ s motion to suppress.11

So ordered.