Before Wagner, Chief Judge, Ruiz, Associate Judge, and Belson,
The opinion of the court was delivered by: Ruiz, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Eric T. Washington, Trial Judge)
This case presents our first opportunity to substantively construe D.C. Code § 22-723 (a) (1996), which makes it a crime to tamper with physical evidence. Section 22-723 (a) reads in full:
A person commits the offense of tampering with physical evidence if, knowing or having reason to believe an official proceeding has begun or knowing that an official proceeding is likely to be instituted, that person alters, destroys, mutilates, conceals, or removes a record, document, or other object, with intent to impair its integrity or its availability for use in the official proceeding.
Timberlake argues that the evidence of his concealment of drugs in his mouth in hope of avoiding detection is insufficient as a matter of law to support his conviction under § 22-723 and that the trial court erred in not instructing the jury to that effect. *fn1 We affirm on the ground that there was additional and sufficient evidence from which the jury could find that Timberlake knew he was the subject of a police investigation while he held the drugs in his mouth. We conclude that the instruction given adequately informed the jury of the elements of the offense and that the failure to give Timberlake's requested instruction, even if error, was harmless.
On February 16, 1995, Sergeant Gerald Neill, an eighteen-year veteran of the Metropolitan Police Department, and Officer Wayne Stancil, a fourteen-year veteran, were in plain clothes and assigned to the First District Vice Unit. Their objective that evening was to identify and arrest drug sellers by making undercover purchases. At approximately eight o'clock in the evening, the officers approached the corner of 16th and D Streets, S.E., in Washington, D.C., an area known for drug trafficking. Shortly after the undercover officers reached the corner, a marked police car drove through the intersection, and an unknown female yelled "five-o," indicating that police were in the area. Officer Neill then saw Timberlake put several plastic bags in his mouth. Suspecting the bags contained narcotics, Officer Neill approached Timberlake and twice asked what he had in his mouth. Timberlake mumbled each response, whereupon Officer Neill identified himself as a police officer and a struggle ensued in which Officer Neill forced Timberlake's head downward to prevent him from swallowing the bags. The struggle, which lasted at least twenty seconds, was joined by Metropolitan Police Officer Michael Jewell who was also in the area as part of the operation. Timberlake eventually spit out two plastic bags containing heroin and cocaine which Officer Jewel recovered. *fn2
When reviewing the denial of a motion for judgment of acquittal, the court "employs the same standard as that applied by the trial court in determining whether the evidence was sufficient to convict." Curry v. United States, 520 A.2d 255, 263 (D.C. 1987). The court "must review the evidence in the light most favorable to the government, giving full play to the right of the jury to determine the credibility, weigh the evidence, and draw justifiable inferences of fact, and drawing no distinction between direct and circumstantial evidence." Id. It is not necessary that the government's evidence compel a finding of guilt beyond a reasonable doubt, nor that the government negate every possible inference of innocence. Bullock v. United States, 709 A.2d 87, 93 (D.C. 1998). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "Reversal of the trial court's denial of appellant's motion for judgment of acquittal is warranted `only where there is no evidence upon which a reasonable [juror] could infer guilt beyond a reasonable doubt.'" Curington v. United States, 621 A.2d 819, 824 (D.C. 1993) (quoting Head v. United States, 451 A.2d 615, 622 (D.C. 1982)) (alteration in original).
I. Tampering With Physical Evidence
Parsing the language of D.C. Code § 22-723 (a), we note that there are three elements of the offense: 1) altering, destroying, mutilating, concealing or removing a record, document, or other object; 2) while a) knowing or having reason to believe that an official proceeding has begun, or b) knowing that an official proceeding is likely to be instituted; 3) with the intent to impair its integrity or availability for use in the official proceeding. The statute defines an "official proceeding" as "any trial, hearing, investigation or other proceeding in a court of ...