dissenting:
Officer Shumac found a plastic bag of marijuana hidden in a drainpipe at the bottom of an otherwise empty stairwell that led from the street to the laundry room of an apartment budding. What evidence connected this marijuana to A.L.? Only this: (1) Officer Shumac saw A.L. enter the stairwell and spend a few seconds in it; (2) before A.L. entered the stairwell, Officer Shumac saw him (at a distance of some thirty yards) holding “a shiny object which appeared to be a plastic bag”; and (3) the bag of marijuana that Officer Shumac recovered from the stairwell “appear[ed] consistent with” the shiny object that Officer Shumac had seen in A.L.’s hand.
There is a vast gulf between merely proving a thing possible and proving it beyond a reasonable doubt. The evidence in this case showed only that the bag of marijuana found in the drainpipe could have been what Officer Shumac saw in A.L.’s hand. Could have been falls short of what the prosecution needed to show. While a trier of fact is entitled to draw reasonable inferences from the evidence, a finding that necessarily depends on conjecture or speculation in the absence of evidence cannot stand. See Curry v. United States, 520 A.2d 255, 263 (D.C.1987). The trier of fact here could only speculate that what Officer Shumac saw A.L. holding was the bag of marijuana Officer Shumac subsequently found. Evidence to prove those two things were the same was lacking.
To understand what kind of evidence was missing in this case, we need look no further than the government’s argument on appeal to this court. In its brief, the government based its sufficiency argument on the assumption that it had established two additional facts at A.L.’s trial. Specifically, the government relied on the suppo*681sitions that (1) Officer Shumac saw A.L. put something down in the stairwell, and (2) that A.L. no longer had the “shiny object” in his possession when he left the stairwell. Proof of either supposed fact would have filled the hole in the prosecution case by providing reason to infer that when A.L. went down the stairwell, he stashed the bag of marijuana that Officer Shumac found there. But in actuality, the government proved neither supposition. As the government now concedes, Officer Shumac testified unequivocally that he did not see A.L. put anything down in the stairwell.1 And as the government also now concedes, there is “no support in the testimony” for the proposition that A.L. left the stairwell without the shiny object that Officer Shumac saw him holding before he entered it. “[N]one of the witnesses stated this,” the government acknowledges.
Appellate review of the sufficiency of the evidence is deferential, but it is not “toothless.” Rivas v. United States, 783 A.2d 125, 134 (D.C.2001) (en banc). “We have an obligation to take seriously the requirement that the evidence in a criminal prosecution [or, as here, a juvenile delinquency adjudication] must be strong enough that a jury [or judge] behaving rationally really could find it persuasive beyond a reasonable doubt.” Id. “Slight evidence is not sufficient evidence; a ‘mere modicum’ cannot ‘rationally support a conviction beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Guesswork is no substitute for proof. In conformance with these principles, I would reverse A.L.’s delinquency adjudication for insufficiency of the evidence.
. At oral argument, counsel for the government agreed that Officer Shumac’s testimony at trial foreclosed any finding that he actually did see A.L. put something down in the stairwell; nor did the trial judge, who credited Officer Shumac’s courtroom testimony, make such a finding. For this reason, I think it inappropriate for the majority opinion to cite and, seemingly, rely upon out-of-court statements to the contrary that Officer Shumac specifically disavowed in his testimony. See ante at 679 and n. 1.