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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CM-323

                          EARL WORKMAN, APPELLANT,

                                         V.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                               (CMD-11703-12)

                   (Hon. Harold Cushenberry, Jr., Trial Judge)

(Submitted February 13, 2014                               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, Assistant United States
Attorneys, were on the brief for appellee.

      Before FISHER and BECKWITH, Associate Judges, and FERREN, Senior Judge.

      BECKWITH, Associate Judge: After a two-day bench trial, Superior Court

Judge Harold Cushenberry found appellant 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 Driving
                                         2

Safety Act1 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 label in the back seat of his 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 officer3

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, approached 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 bottle” 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 officers, using a predetermined hand signal, that

Officer Cox should have Mr. Workman 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 besides 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 the 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.” The bottle was not taken

into evidence, and at trial the government admitted photographs of the bottle on the

floor of the car‟s back seat. The label on the bottle indicated 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 concluded 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 criminal

conviction unless the government establishes guilt of the essential elements of an
                                          5

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

offense, 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. 307, 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 “alcoholic beverage” as “a liquid or solid, patented

or not, containing alcohol capable of being consumed by a human being.” D.C.

Code § 25-101 (5) (2012 Repl.). “The term „alcoholic beverage‟ shall not include
                                           6

a liquid or solid containing less than one-half of 1% of alcohol by volume.” Id.;

see also Derosiers v. District of Columbia, 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 bottle 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 earlier 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 amendment 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 like

alcohol. Police did not seize the bottle, and there was no evidence that any officer

opened or inspected it. The officers found no cups, flasks, 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 of 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 whisky.

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.


      An experienced officer‟s testimony that a beverage smelled or tasted like

alcohol is far more probative of what was actually in the bottle at the time police
                                           8

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 found 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 While

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 of POCA). The 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. See 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, the 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 Four 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 insufficient
evidence to prove that B.B. possessed alcohol.” Id.
                                         9

States, 17 A.3d 635, 637 (D.C. 2011).        But it 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 Reid,

980 A.2d at 1136 (noting the uncertainty about 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 and 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. Workman‟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 Bernard, no additional circumstantial evidence corroborated

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 than .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 needed only a reasonable,
articulable suspicion that Mr. Workman was violating 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.”
What 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.
