State v. Stewart

State of Maryland v. Willie B. Stewart No. 53, September Term 2018 Criminal Law – Inconsistent Verdicts. The indictment charged the defendant with robbery, second-degree assault, and theft. The jury returned a guilty verdict on the robbery and theft charges and a not guilty verdict on the second-degree assault charge. The verdicts on the robbery and assault charges were not inconsistent so as to require reversal of the robbery conviction.

Circuit Court for Baltimore County IN THE COURT OF APPEALS Case No. 03-K-16-004418 Argued: February 5, 2019 OF MARYLAND No. 53 September Term 2018 STATE OF MARYLAND v. WILLIE B. STEWART Barbera, C.J. Greene McDonald Watts Hotten Getty Adkins, Sally D. (Senior Judge, Specially Assigned), JJ. Per Curiam Opinion Pursuant to Maryland Uniform Electronic Legal Materials Act Filed: June 25, 2019 (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-06-26 10:28-04:00 Suzanne C. Johnson, Clerk Background Respondent Willie B. Stewart was charged in the Circuit Court for Baltimore County with various offenses that allegedly occurred at an ice cream store before it opened on August 12, 2016. In particular, he was charged with robbery of Brian Rampmeyer, the owner of the store, second-degree assault of Mr. Rampmeyer, and theft of property with a value less than $1,000.

The trial took place on May 23, 2017. At the close of the evidence, the Circuit Court denied a defense motion for judgment of acquittal on each of the three counts, thus finding that there was sufficient evidence to create a jury issue as to each of the charges. The court then instructed the jury on the law governing the alleged offenses. Pertinent to this appeal, the court instructed the jury as follows concerning robbery: The Defendant is charged with the crime of robbery.

Robbery is the taking and carrying away of property from someone else by force or threat of force with the intent to deprive the victim of the property. To convict the Defendant of robbery, the State must prove that the Defendant took the property from Brian Rampmeyer, that the Defendant took the property by force or threat of force, and that the Defendant intended to deprive Brian Rampmeyer of the property. Property means anything of value. The robbery instruction was evidently based on a pattern jury instruction developed by a committee of the Maryland State Bar Association (“MSBA”).1 Also pertinent to this appeal, the court instructed the jury as follows concerning second-degree assault: 1 See MSBA, Maryland Criminal Pattern Jury Instructions (2d ed. 2018), MPJI-Cr 4:28A.

This formulation is consistent with the case law concerning the offense of robbery. See, e.g., Metheny v. State, 359 Md. 576, 596, 605-9 (2000). The Defendant is charged with the crime of assault. Assault is intentionally frightening another person with the threat of immediate physical harm.

To convict the Defendant of assault, the State must prove the Defendant committed an act with the intent to place Brian Rampmeyer in fear of immediate physical harm, that the Defendant had the apparent ability at that time to bring about physical harm, and that Brian Rampmeyer reasonably feared immediate physical harm, and that the Defendant’s actions were not legally justified. Like the robbery instruction, the court’s instruction on second-degree assault was based on an MSBA pattern instruction concerning second-degree assault.2 The parties agree that the Circuit Court’s instructions on robbery and second-degree assault were accurate statements of the law governing those charges. There was no dispute that the evidence presented at trial generated these two instructions. No objection was made to these instructions – or any of the court’s other instructions.

The jury found Mr. Stewart guilty of the robbery and theft charges, but acquitted him of the second-degree assault charge. Immediately after the jury returned the verdict, Mr. Stewart’s counsel requested a bench conference. At the bench conference, he told the court that, in his view, the verdicts on the robbery and second-degree assault charges were inconsistent and that the jury should be required to continue to deliberate until it reached consistent verdicts. The State responded that the verdicts were not inconsistent.

The 2 See MSBA, Maryland Criminal Pattern Jury Instructions (2d ed. 2018), MPJI-Cr 4:01A. This Court has recognized this formulation as a correct statement of Maryland law on second-degree assault of the intent-to-frighten type. Jones v. State, 440 Md. 450, 455 (2014). 2 Circuit Court agreed with the State and declined to take further action on that ground.3 At Mr. Stewart’s sentencing on July 25, 2017, the Circuit Court merged the theft conviction into the robbery conviction and sentenced him to 15 years imprisonment. Mr. Stewart appealed his convictions, solely on the ground that the trial court had erred in accepting inconsistent verdicts.

In an unreported decision, the Court of Special Appeals reversed the conviction on the robbery count. The intermediate appellate court based its holding on a distinction between “legally inconsistent” verdicts and “factually inconsistent” verdicts made in McNeal v. State, 426 Md. 455 (2012), which held that a verdict in a criminal case that is “legally inconsistent” (as opposed to a verdict that is only “factually inconsistent”) is unacceptable. Applying that distinction to this case, the Court of Special Appeals concluded that the guilty verdict on the robbery conviction should be reversed. It summarized case law concerning the elements of robbery and second-degree assault and reasoned that, in light of the “uncontradicted evidence” presented at trial, the guilty verdict on the robbery charge was legally inconsistent with the acquittal on the second-degree assault charge because the assault offense was a lesser-included offense of the robbery.

Accordingly, the intermediate appellate court overturned the guilty verdict on the robbery count and remanded the case for sentencing on the theft count. Stewart v. State, 3 When the jury was polled, it appeared that one juror disagreed with the announced verdict and the jury was sent back to resume deliberations to reach a unanimous verdict. The jury later returned the same verdict initially announced, this time unanimously. 3 No. 1291 (Sept. 2017 Term), 2018 WL 3777459 (August 8, 2018).4 The State filed a petition for a writ of certiorari, which we granted. 461 Md. 613 (2018). Disposition A majority of this Court agrees that the judgment of the Court of Special Appeals should be reversed and that the guilty verdict on the robbery count should be affirmed.

The members of the Court who agree with this disposition do so for somewhat different reasons. Three judges – in an opinion by Judge McDonald (joined by Chief Judge Barbera and Senior Judge Adkins) – would not be concerned with distinguishing a “legally inconsistent” verdict from a “factually inconsistent” one, but rather with whether the verdict demonstrates that the jury disregarded the trial court’s instructions on the law. In their view, a reviewing court must consider the instructions given by the trial court and whether the jury’s verdict, on its face, shows that the jury disregarded those instructions. Concluding that the verdict in this case does not demonstrate that the jury disregarded the court’s instructions, they would hold that the guilty verdict on the robbery count should not be reversed on the ground of inconsistency.

Two judges – in an opinion by Judge Watts (joined by Judge Getty) – would apply a two-step analysis in which the reviewing court first confirms that the trial court correctly instructed the jury on the elements of the offenses and then ascertains whether the verdicts 4 Judge Kehoe filed a brief concurring opinion that agreed with the analysis of the majority of the panel, but he stated that “there may be other aspects” to be analyzed in the consideration of inconsistent verdicts that had not been raised by the parties in this case. 4 are “legally inconsistent” – that is, whether the charge of which the jury found the defendant not guilty is a lesser-included offense of the charge of which the jury found the defendant guilty. Applying that analysis, they would reach a different conclusion from the Court of Special Appeals and hold that the guilty verdict on the robbery charge in this case was not “legally inconsistent” with the not guilty verdict on the second-degree assault charge because, in their view, second-degree assault of the intent-to-frighten type is not a lesser-included offense of robbery. In addition, upon review of the evidence at trial, they conclude that the evidence satisfied the elements of robbery, but did not establish the elements of second-degree assault of the intent-to-frighten type. Two members of the Court dissent from the Court’s disposition of this appeal.

Judge Greene agrees with Judge Watts that the analysis should distinguish “legally inconsistent” verdicts from “factually inconsistent” verdicts. However, he would adopt the analysis of the Court of Special Appeals and hold that, because second-degree assault is generally a lesser-included offense of robbery, the guilty verdict on the robbery count in this case was “legally inconsistent” with the not guilty verdict on the second-degree assault count and therefore should be reversed. He would affirm the judgment of the Court of Special Appeals. Judge Hotten would follow the same framework as Judge Watts and Judge Greene – i.e., she would assess whether a verdict is “legally inconsistent” by looking to whether one of the charged offenses is a lesser-included offense of another charge.

In her view, case law has established that second-degree assault, of either the battery or intent-to- frighten variety, is a lesser-included offense of robbery. She disagrees with Judge Watts 5 as to whether the evidence at trial fell short of proof of second-degree assault. Accordingly, Judge Hotten would hold that the verdicts in this case were legally inconsistent and the guilty verdict on the robbery count must be reversed. She would affirm the judgment of the Court of Special Appeals.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTION TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY. RESPONDENT TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS. 6 Circuit Court for Baltimore County IN THE COURT OF APPEALS Case No. 03-K-16-004418 Argued: February 5, 2019 OF MARYLAND No. 53 September Term 2018 STATE OF MARYLAND v. WILLIE B. STEWART Barbera, C.J. Greene McDonald Watts Hotten Getty Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.

Opinion by McDonald, J., which Barbera, C.J., and Adkins, J., join. Filed: June 25, 2019 I agree with the Court’s disposition of this case and have no quarrel with Judge Watts’ thorough discussion of the recent case law in Maryland on inconsistent verdicts. That case law, however, has led me to reconsider our approach to this issue. The United States Supreme Court has held that, under federal law, inconsistent verdicts in a criminal case generally do not entitle the defendant to have a guilty verdict overturned.

United States v. Powell, 469 U.S. 57 (1984). Until relatively recently, this Court had a similar view. E.g., State v. Williams, 397 Md. 172, 189 (2007). There has been a fair amount of commentary expressing discomfort with the holding in Powell and an effort in some courts, including this one, to come up with a theory of when one’s tolerance for seemingly inconsistent verdicts is exhausted.

See, e.g., Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771 (1998); Ashlee Smith, Comment, Vice-A-Verdict: Legally Inconsistent Jury Verdicts Should Not Stand in Maryland, 35 U. Balt. L. Rev. 395 (2006) (recommending how the analysis in the Muller article might be applied in Maryland and proposing that Maryland courts define a category of “legally inconsistent” verdicts); State v. Davis, 466 S.W.3d 49, 75-76 (Tenn. 2015) (collecting cases).

In response to these concerns, our Court recently adopted a distinction between “factually inconsistent” verdicts – tolerated – and “legally inconsistent” verdicts – not tolerated. See McNeal v. State, 426 Md. 455 (2012) adopting rationale suggested in Price v. State, 405 Md. 10, 35-38 (2008) (Harrell, J., concurring) (citing and relying on Smith and Muller articles). Other courts have made similar distinctions, sometimes devising 2 additional categories of inconsistent verdicts.1 The motivation for making such distinctions seems to be a concern that a court not intrude on the jury’s factfinding function while also ensuring that the jury has not taken the law into its own hands.2 In my view, the attempt to define and contrast a “factually inconsistent” verdict from a “legally inconsistent” one has been a valiant attempt to distinguish between inconsistent verdicts that we can live with and those that we cannot. However, the effort to discern the difference between the abstract categories of “factually inconsistent” and “legally 1 The Supreme Court in Powell alluded to a separate category of logically inconsistent verdicts and reserved judgment on whether such verdicts could be upheld.

See United States v. Powell, 469 U.S. 57 , 69 n.8 (1984) (referring to such a verdict as one in which a guilty verdict on one count “logically” precludes a guilty verdict on another count). By contrast, the concurring opinion in Price equates a “logically inconsistent” verdict with a “factually inconsistent” verdict – i.e., the type of inconsistent verdict that will be upheld under our recent precedent in Maryland. Other courts have identified yet other categories of inconsistent verdicts. See, e.g., State v. Connelly, 748 So.2d 248, 252 (Fla. 1999) (distinguishing “truly inconsistent” verdicts from “factually inconsistent” ones); Commonwealth v. Medeiros, 921 N.E.2d 98, 102-5 (Mass. 2010) (distinguishing verdicts that are “impossible at law” or that concern crimes that require a “united act” from other types of inconsistent verdicts); State v. Arroyo, 973 A.2d 1254, 1267-68 (Conn. 2009) (noting that Connecticut cases had recognized three distinct categories of inconsistent verdicts – factually inconsistent, legally inconsistent, and logically inconsistent); State v. Halstead, 791 N.W.2d 805, 807-8 (Iowa 2010) (identifying four categories of inconsistent verdicts – factually inconsistent, legally inconsistent, verdicts that create a “compound inconsistency,” and “mutually exclusive” verdicts); People v. Tucker, 431 N.E.2d 617 , 618 n.1 (N.Y. 1981) (noting that some courts distinguish “repugnant” verdicts from those that are merely “inconsistent”); see generally Annotation, Inconsistency of criminal verdict as between different counts of indictment or information, 18 ALR 3d 259 . 2 See, e.g., McNeal, 426 Md. at 472 (in adopting the distinction between “legally inconsistent” and “factually inconsistent” verdicts, “we reaffirm the historic role of the jury as the sole fact-finding body”). 3 inconsistent” has proven to be more of a distraction than a useful rubric.

Upon reflection, the critical factor in these cases for determining when a guilty verdict that is allegedly inconsistent with an acquittal on another charge should be reversed on the ground of inconsistency is evident. Under the concurring opinion in Price, the Court’s opinion in McNeal, and subsequent opinions, the key question is whether the jury verdict on its face indicates that the jury failed to follow the trial court’s proper instructions on the law governing the charged offenses.3 If the answer to that question is “yes,” then the guilty verdict warrants reversal.4 However, if the trial court’s instructions accurately describe the elements of the offenses and if the jury verdict does not indicate on its face that the jury failed to follow those instructions, then the guilty verdict should be upheld. In the end, it seems easier to conduct the analysis by going directly to that question without the intermediate step of trying to fit the verdict into one of two – or more5 – abstract categories. The real concern with a seemingly inconsistent verdict is not what label we can 3 Price, 405 Md. at 35 (Harrell, J., concurring) (“a legally inconsistent verdict occurs where the jury acts contrary to a trial judge’s proper instructions regarding the law”); McNeal, 426 Md. at 472 (affirming conviction on one count allegedly inconsistent with not guilty verdict on separate count because the “verdicts rendered by the jury did not misapply facially the elements of the counts against [the defendant]”); Givens v. State, 449 Md. 433, 454, 474 (2016) (quoting Price concurrence and stating that “[l]egally inconsistent verdicts are, more often than not, immediately recognizable”). 4 This result also accords with part of the reasoning underlying this Court’s long- held view that inconsistent verdicts in bench trials are not tolerated.

Shell v. State, 307 Md. 46, 56-57 (1986) (stating that it “would make utterly no sense” for a judge to instruct a jury on the law relating to two charged offenses if “a trial judge himself is permitted to ignore” it). 5 See footnote 1 above. 4 attach to it, but whether the jury disregarded the trial court’s instructions on the law in reaching a guilty verdict on a particular count. Thus, when confronted with the possibility of an inconsistent verdict, a court should first consider the specific instructions that the trial court gave the jury on the particular charges.6 To illustrate, assume the jury was told in the court’s instructions that it must find A to convict on the first charge and must find A + B to convict on the second charge. If the jury finds the defendant not guilty on the first charge, a guilty verdict on the second charge means that the jury necessarily disregarded the court’s instructions on the law.7 On the other hand, if the jury was told that it must find A to convict on the first charge and B + C to convict on the second charge and the jury finds the defendant not guilty on the first charge, a guilty verdict on the second charge does not mean, in and of itself, that the jury disregarded the court’s instructions on the law.8 This would be true 6 In this discussion, I assume that the trial court correctly instructs the jury on the law concerning the charges and that the evidence at trial generates the instructions given by the court. If either is not true, there would be independent grounds for appeal separate from any issue of inconsistency of the verdicts.

See, e.g., Montgomery v. State, 206 Md. App. 357 (2012) (deciding whether trial court properly denied motions for judgment of acquittal concerning sufficiency of evidence to prove robbery and second-degree assault); Martin v. State, 174 Md. App. 510, 525-26 (2007) (deciding whether robbery instruction given by trial court was correct); see also Maryland Rules 4-324 (motion for judgment of acquittal), 4-325(e) (objections to jury instructions). 7 This was precisely the situation in Price where this Court reversed a guilty verdict on grounds of inconsistency. The trial court instructed the jury on drug trafficking crimes (A) and on the charge of possessing a firearm during a drug trafficking crime (A + B). The jury returned a verdict acquitting the defendant of drug trafficking crimes and convicting him of possession of a firearm during a drug trafficking crime. 8 This appears to have been the situation in McNeal, where this Court held that a guilty verdict on the charge of possessing a regulated firearm following conviction of a 5 even if, had the jury returned guilty verdicts as to both charges, the first charge would be merged into the second for purposes of sentencing.9 When a reviewing court resolves a claim that a jury verdict in a criminal trial should be overturned on the ground of inconsistent verdicts, it is important to respect the boundary between the different functions of the trial judge – instructing on the applicable law – and the jury – determining the facts. The jury’s verdict should be overturned on the basis that it is “inconsistent” only when that inconsistency means that the jury necessarily crossed that boundary by ignoring the trial judge’s instructions on the law.10 Conversely, a reviewing court should not try to resolve a claim of inconsistent verdicts by speculating how the jury carried out its function of sorting out the evidence at trial.11 disqualifying offense should not be reversed on the ground that it was inconsistent with the acquittal of the defendant of the offense of wearing, carrying, or transporting a handgun. 9 The issue of whether “inconsistent” guilty and not guilty verdicts merit reversal of the guilty verdict should be kept distinct from the issue of whether a sentencing court should merge two guilty verdicts on the basis that one is a lesser-included offense of the other.

In deciding whether a seemingly inconsistent verdict shows that the jury ignored the court’s instructions on the law, a reviewing court should not second-guess the factual determinations of the jury. By contrast, in determining whether to merge counts for sentencing, a court may engage in its own evaluation of the facts of the case. See Carroll v. State, 428 Md. 679, 693-94 (2012) (grounds for merger of convictions are based on required evidence test, rule of lenity, and fundamental fairness). 10 Although not directly related, it is similar to the concern that prohibits a trial court from advising a jury that it is the judge of the law, as well as the facts. Cf.

Montgomery v. State, 292 Md. 84, 89 (1981) (unless there is a “sound basis” for a dispute as to the law of the crime, all legal issues are for the judge alone to decide); Stevenson v. State, 289 Md. 167, 179-80 (1980) (same). 11 As this case illustrates, a court that applies the “factually inconsistent” versus “legally inconsistent” framework may find itself evaluating the facts of the case – which is the jury’s function. For example, the analysis in the opinion of the Court of Special 6 In this case, there is no dispute that the jury instructions were generated by the evidence at trial and accurately described the elements of the offenses with which Mr. Stewart was charged. The trial court instructed the jury that a conviction for the assault count required that they find beyond a reasonable doubt that, among other things, the defendant intended to place the victim “in fear of immediate physical harm” and “had the apparent ability at that time to bring about the physical harm.” It also instructed the jury that a conviction on the robbery count required that they find beyond a reasonable doubt that the defendant took property from the victim “by force or threat of force.” In my view, a “threat of force” does not always or necessarily equate to an intent to place another in fear of immediate physical harm or necessarily involve the apparent ability to do so. The fact that a jury may acquit a defendant on an assault charge after receiving such instructions does not mean that it has ignored the court’s instruction on the robbery charge in finding the same defendant guilty of that charge.

Thus, we cannot say, simply from looking at the verdicts in this case, that the jury failed to follow the court’s instructions on the law. Accordingly, I would hold that Mr. Stewart’s conviction of robbery should not be overturned on the basis of an “inconsistent” acquittal of second-degree assault. Appeals was premised in part on its conclusion that the evidence at trial was “uncontradicted.” It is true that the defense did not present any testimony. But defense counsel vigorously cross-examined the main prosecution witness and certainly disputed the prosecution’s version of events in argument.

It is impossible for us to say precisely how the jury may have agreed with the defense and discounted the prosecution’s version. Similarly, in applying that same framework, the opinions of Judge Watts and Judge Hotten evaluate the sufficiency of the evidence to support the assault charge, although they reach different conclusions. 7 Chief Judge Barbera and Judge Adkins have advised that they join this opinion. 8 Circuit Court for Baltimore County Case No. 03-K-16-004418 Argued: February 5, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 53 September Term, 2018 ______________________________________ STATE OF MARYLAND v. WILLIE B. STEWART ______________________________________ Barbera, C.J. Greene McDonald Watts Hotten Getty Adkins, Sally D. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J., which Getty, J., joins. ______________________________________ Filed: June 25, 2019 It is well-settled by this Court’s case law that a guilty verdict and a not-guilty verdict can be inconsistent in one, or both, of two ways: factually and legally. A guilty verdict and a not-guilty verdict may be factually inconsistent where the two crimes “have common facts but distinct [] elements[.]” Givens v. State, 449 Md. 433 , 437 n.1, 144 A.3d 717 , 719 n.1 (2016) (citation omitted).

A guilty verdict and a not-guilty verdict are legally inconsistent where the crime of which the jury finds the defendant not guilty is “an [] element of” the crime of which the jury finds the defendant guilty. Id. at 437 n.1, 144 A.3d at 719 n.1 (citation omitted). For example, a guilty verdict and a not-guilty verdict would be legally inconsistent if a jury found a defendant not guilty of drug trafficking, but found him or her guilty of possession of a firearm during and in relation to a drug trafficking crime. See id. at 474 , 144 A.3d at 741 .

In a criminal case, factually inconsistent verdicts are permissible, while legally inconsistent verdicts are not. See id. at 437 , 144 A.3d at 719 . This case requires us to clarify the method through which a court determines whether a guilty verdict and a not-guilty verdict are legally inconsistent—by ascertaining whether the crime of which the jury found the defendant not guilty is a lesser-included offense of the crime of which the jury found the defendant guilty, or by simply reviewing the jury instructions. We must also decide whether a guilty verdict as to robbery, and a not-guilty verdict as to second-degree assault of the intent-to-frighten type,1 are legally inconsistent. 1 There are three types of second-degree assault: “(1) intent to frighten, (2) attempted battery, and (3) battery.” Jones v. State, 440 Md. 450, 455 , 103 A.3d 586, 589 (2014) (cleaned up).

In the Circuit Court for Baltimore County, the State, Petitioner, charged Willie B. Stewart, Respondent, with robbery of Brian Rampmeyer, second-degree assault of Rampmeyer, and theft from a Baskin Robbins of property with a value of less than $1,000. At trial, Rampmeyer testified that, while he was working at the Baskin Robbins, Stewart, without openly displaying a gun, threatened to shoot and kill him if he did not follow Stewart’s instructions, then told him to empty the cash register. Rampmeyer obeyed, and Stewart took the cash and left. The jury found Stewart guilty of robbery and theft, and not guilty of second-degree assault of the intent-to-frighten variety.

Stewart’s counsel contended that the verdicts were inconsistent. The circuit court disagreed. Stewart appealed, and the Court of Special Appeals reversed his conviction for robbery, reasoning that it was legally inconsistent with his acquittal for second-degree assault. See Willie B. Stewart v. State, No. 1291, Sept. Term, 2017, 2018 WL 3777459 , at ³-4 (Md. Ct. Spec.

App. Aug. 8, 2018). The State filed a petition for a writ of certiorari, which this Court granted. See State v. Stewart, 461 Md. 613 , 196 A.3d 905 (2018). The State contends that the Court of Special Appeals erred in concluding that the verdicts were legally inconsistent.

The State argues that a guilty verdict and a not-guilty verdict are legally inconsistent if and only if the jury violates the jury instructions by finding that, with respect to two crimes, the State has both proven, and not proven, a fact that, according to the jury instructions, is an element of both crimes. Stewart responds that the verdicts are legally inconsistent because second-degree assault is a lesser-included offense of robbery. -2- I would conclude that, to determine whether a guilty verdict and a not-guilty verdict are legally inconsistent, a court must first confirm that the trial court correctly instructed the jury regarding the two crimes’ elements, then ascertain whether the crime of which the jury found the defendant not guilty is a lesser-included offense of the crime of which the jury found the defendant guilty. In so ascertaining, the court may, if necessary, consider case law regarding what constitutes a lesser-included offense. In other words, the court is not required to limit its analysis to an examination of the jury instructions.

I would also hold that, here, the verdicts are not legally inconsistent because, as the parties agree, the circuit court correctly instructed the jury regarding the two offenses’ elements, and because second-degree assault of the intent-to-frighten type is not a lesser- included offense of robbery. Second-degree assault of the intent-to-frighten type includes elements that robbery lacks. To secure a conviction for second-degree assault of the intent- to-frighten type, the State must prove that: (1) the defendant committed an act with the intent to place a victim in fear of immediate physical harm; (2) the defendant had the apparent ability, at the time, to bring about the physical harm; and (3) the victim was in reasonable apprehension of the physical harm. By contrast, to secure a conviction for robbery, the State must prove that the defendant took and carried away the property of someone else by force or threat of force with the intent to deprive the victim of the property.

The State need not prove that the victim reasonably feared immediate physical harm, that the defendant intended to create such fear, or that the defendant was apparently able to physically harm the victim. -3- BACKGROUND Trial At trial, as a witness for the State, Rampmeyer testified that, on August 12, 2016, he was working at a Baskin Robbins in Owings Mills. Stewart entered the Baskin Robbins and asked: “[I]s there anyone here in the store with you?” Rampmeyer “felt threatened” and “felt like [his] life could be in danger[.]” Rampmeyer falsely said that there was another employee in the back, and asked: “[W]hat can I help you with today?” Stewart responded that, if Rampmeyer did not “make any sudden moves” and “follow[ed] his instructions[, Rampmeyer] would not be shot and killed.” Although Rampmeyer did not see a gun, any other kind of weapon, or a bulge in Stewart’s clothing, Stewart’s left hand was close to his waistband when he threatened Rampmeyer. Stewart told Rampmeyer to empty the cash register, and he obeyed. Stewart took the cash, which was between $150 and $200, and left.

After both parties rested, the circuit court instructed the jury regarding the elements of robbery and second-degree assault of the intent-to-frighten type as follows: The Defendant is charged with the crime of robbery. Robbery is the taking and carrying away of property from someone else by force or threat of force with the intent to deprive the victim of the property. To convict the Defendant of robbery, the State must prove that the Defendant took [] property from Brian Rampmeyer, that the Defendant took the property by force or threat of force, and that the Defendant intended to deprive Brian Rampmeyer of the property. Property means anything of value.

The Defendant is charged with the crime of assault. Assault is intentionally frightening another person with the threat of immediate physical harm. To convict the Defendant of assault, the State must prove the Defendant committed an act with the intent to place Brian Rampmeyer in fear of immediate physical harm, that the Defendant had the apparent ability at that time to bring about the physical harm, [] that Brian Rampmeyer -4- reasonably feared immediate physical harm[,] and that the Defendant’s actions were not legally justified. Stewart’s counsel did not object to any of the jury instructions.

The jury found Stewart guilty of robbery and theft, and not guilty of second-degree assault of the intent-to-frighten type. Immediately after the jury’s foreperson announced the verdicts, Stewart’s counsel requested a bench conference, which the circuit court granted. At the bench conference, Stewart’s counsel contended that the verdicts were inconsistent, and requested that the circuit court instruct the jury to resume deliberating until it reached consistent verdicts. The prosecutor responded that the verdicts were consistent because one of the elements of robbery is “a threat of force[,]” whereas one of the elements of second-degree assault is “an overt act.” The prosecutor observed that it was possible that the jury believed that Stewart had not committed an overt act.

The circuit court concluded that the verdicts were consistent, and denied Stewart’s counsel’s request.2 Opinion of the Court of Special Appeals Stewart appealed. On August 8, 2018, the Court of Special Appeals reversed Stewart’s conviction for robbery and remanded for sentencing on his conviction for theft. 2 Afterward, the courtroom clerk polled the jury, and one of the jurors responded “No” to the question: “[I]s this your verdict?” The circuit court instructed the jury to resume deliberating. Later, the jury returned to the courtroom, and its foreperson announced the same verdicts that she had earlier. At a bench conference, Stewart’s counsel again requested that the circuit court instruct the jury to resume deliberating until it reached consistent verdicts, and the circuit court reiterated that the verdicts were consistent.

The courtroom clerk polled the jury again, and all of the jurors responded “Yes” to the question: “[I]s this your verdict?” -5- See Stewart, 2018 WL 3777459 , at ⁴. The panel of the Court of Special Appeals3 reasoned that the verdicts were “legally inconsistent because, under the undisputed facts, the same conduct underlies the convictions for robbery and assault.” Id. at ². Specifically, the Court of Special Appeals explained that, “although Rampmeyer did not see a gun,” Stewart’s threat to shoot and kill him was a “threat of force that effected the theft.” Id. at ³. The Court of Special Appeals reasoned that the defendant’s intimidation of the victim satisfies elements of both robbery and second-degree assault of the intent-to-frighten type.

See id. at ³. Petition for a Writ of Certiorari On September 21, 2018, the State petitioned for a writ of certiorari, raising the following two issues: 1. What is the proper analysis for determining when jury verdicts are legally inconsistent? 2. Where a[n oral] threat to obtain money was the basis for the robbery and assault charges, but the jury was instructed that second-degree “intent to frighten” assault required a finding that Stewart “committed an act with the intent to place [the] victim in fear of immediate physical harm,” did the Court of Special Appeals err in holding that the verdicts of guilty of threat-of-force robbery and not guilty of assault [are] legally inconsistent?

(Emphasis and second alteration in original). On November 7, 2018, this Court granted the petition. See Stewart, 461 Md. 613 , 196 A.3d 905 . 3 Judge Christopher B. Kehoe issued a concurring opinion, stating that he “agree[d] with the Majority’s analysis,” and that “there may be other aspects of [Stewart]’s inconsistent verdict contention[,] but this case is not the vehicle to consider them.” Stewart, 2018 WL 3777459 , at ⁴ (Kehoe, J., concurring). -6- DISCUSSION The Parties’ Contentions The State contends that the Court of Special Appeals erred in concluding that the verdicts are legally inconsistent. The State argues that, in prior cases, when determining whether a guilty verdict and a not-guilty verdict are legally inconsistent, this Court and the Court of Special Appeals have focused on the jury instructions in each case.

The State asserts that Stewart’s counsel also relied on the jury instructions, given that, when he requested that the circuit court instruct the jury to continue deliberating until it reached consistent verdicts, he did not request that the circuit court provide the jury with case law regarding what constitutes a lesser-included offense. The State maintains that, accordingly, Stewart’s counsel took the position that the jury should resolve the alleged legal inconsistency based on the jury instructions, as opposed to case law regarding what constitutes a lesser-included offense. The State contends that the Court of Special Appeals’s approach in this case—namely, focusing on legal principles established in case law governing whether one crime is a lesser-included offense of another crime—usurps the jury’s role as the finder of fact, would result in courts determining whether a guilty verdict and a not-guilty verdict are legally inconsistent based on principles on which the jury was not instructed, and essentially ignores the evidence and jury instructions in each case. The State argues that, here, the verdicts are legally consistent because the crimes of robbery and second-degree assault of the intent-to-frighten type have different elements.

Stewart responds that the verdicts are legally inconsistent because second-degree assault is a lesser-included offense of robbery. Stewart contends that, to determine whether -7- a guilty verdict and a not-guilty verdict are legally inconsistent, a court must first confirm that the trial court correctly instructed the jury regarding the two offenses’ elements; if so, the court must then ascertain whether the crime of which the jury found the defendant not guilty is a lesser-included offense of the crime of which the jury found the defendant guilty. Stewart asserts that, during the second step of the analysis, the court must apply the “required evidence” test.4 In a reply brief, the State agrees with Stewart that a court should engage in a two- step analysis to determine whether a guilty verdict and a not-guilty verdict are legally inconsistent, and that the first step is to confirm whether the jury instructions regarding the two crimes’ elements were correct. The State clarifies that, whereas Stewart contends that the second step is to review the crimes’ elements in light of case law to determine whether one crime is a lesser-included offense of the other, its position is that the second step is to review the offenses’ elements, as stated in the jury instructions, to determine whether the jury complied with the jury instructions.

Standard of Review An appellate court reviews without deference a trial court’s conclusion as to whether a guilty verdict and a not-guilty verdict are legally inconsistent. See Givens, 449 Md. at 447 , 144 A.3d at 725 . Under the “required evidence” test, where all of the elements of one offense are 4 included in another offense, the first offense is considered a lesser-included offense of the second offense. Twigg v. State, 447 Md. 1, 13 , 133 A.3d 1125, 1133 (2016) (citation omitted). -8- Legally Inconsistent Verdicts This Court has held that guilty verdicts may not be legally inconsistent, regardless of whether a jury or a trial court tried the defendant.

See Givens, 449 Md. at 448 , 144 A.3d at 725 . Historically, however, this Court has not always held that a guilty verdict and a not-guilty verdict may not be legally inconsistent where a jury tries the defendant. See id. at 449 , 144 A.3d at 726 . In Leet v. State, 203 Md. 285, 293-94 , 100 A.2d 789, 793-94 (1953), where a jury tried the defendant, this Court held that a guilty verdict and a not- guilty verdict could be legally inconsistent. “For decades after Leet, this Court repeated the principle that a guilty verdict” and a not-guilty verdict could be legally inconsistent where a jury tries the defendant.

Givens, 449 Md. at 449 , 144 A.3d at 726 (citations omitted). Then, eleven years ago, in Price v. State, 405 Md. 10, 29 , 949 A.2d 619, 630 (2008), “this Court effectively overruled Leet[] and its progeny” by holding that “inconsistent verdicts shall no longer be allowed.” Givens, 449 Md. at 452 , 144 A.3d at 728 (citation omitted). In Price, 405 Md. at 29 , 949 A.2d at 630 , this Court did not specify whether its holding applied to legally inconsistent verdicts, factually inconsistent verdicts, or both. That said, this Court observed that: the trial court instructed the jury that it could find the defendant guilty of possession of a firearm during and in relation to a drug trafficking crime only if the jury also found the defendant guilty of a drug trafficking crime; the jury found the defendant not guilty of all drug trafficking crimes with which the State had charged him; and, “[d]espite the trial [court]’s instructions and the acquittals, the jury found [the defendant] guilty of possession of a firearm during and in relation to a drug trafficking -9- crime[.]” Id. at 14-15 , 949 A.2d at 622 .

This Court explained “that inconsistent jury verdicts are contrary to the law and contrary to the trial court’s instructions[.]” Id. at 21 , 949 A.2d at 626 (cleaned up). In a concurring opinion, Judge Glenn T. Harrell, Jr. stated that this Court’s holding applied to legally inconsistent verdicts, not factually inconsistent verdicts. See id. at 35 , 949 A.2d at 634 (Harrell, J. concurring). Judge Harrell referenced multiple definitions of the term “legally inconsistent,” stating: [A] legally inconsistent verdict occurs where a jury acts contrary to a trial [court]’s proper instructions regarding the law. . . .

A legal inconsistency . . . occurs when an acquittal on one charge is conclusive as to an element [of] a charge on which a conviction has occurred. . . . [I]f the essential elements of the counts of which the defendant is acquitted are identical and necessary to prove the count of which the defendant is convicted, then the verdicts are inconsistent. Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same [] element or elements of each crime were found both to exist and not to exist. Id. at 35, 37-38 , 949 A.2d at 634, 635-36 (Harrell, J., concurring). Judge Harrell explained that, in Price, the verdicts were legally inconsistent because the jury found the defendant not guilty of all drug trafficking charges, but found him guilty of possession of a firearm during and in relation to a drug trafficking crime.

See id. at 38 , 949 A.2d at 636 (Harrell, J., concurring). Four years later, in McNeal v. State, 426 Md. 455, 458-59 , 44 A.3d 982, 984 (2012), this Court clarified its holding in Price by adopting the aforementioned section of Judge Harrell’s concurring opinion in Price, and concluding that factually inconsistent verdicts are permissible, while legally inconsistent verdicts are not. In McNeal, 426 Md. at 458 - - 10 - 59, 44 A.3d at 984-85 , the State offered evidence that a law enforcement officer found a handgun on the person of the defendant, who had been convicted of a disqualifying crime. The jury found the defendant guilty of possession of a regulated firearm having been convicted of a disqualifying crime, but found the defendant not guilty of wearing, carrying, or transporting a handgun.

See id. at 460 , 44 A.3d at 985 . The defendant appealed, and the Court of Special Appeals affirmed his convictions. See id. at 461 , 44 A.3d at 986 . This Court affirmed as well, holding that the verdicts were merely “‘curious’ or factually inconsistent[.]” Id. at 473 , 44 A.3d at 993 .

This Court explained that the verdicts were not legally inconsistent, as they “did not misapply facially the elements of the [crimes]. . . . [P]ossession of a handgun contains [] elements that are distinct from the elements [of] wearing, carrying, or transporting a handgun[.] . . . There is no lesser[- ]included offense or predicate crime involved[.]” Id. at 472 , 44 A.3d at 992-93 . This Court stated: “A reviewing court, distanced from a jury, is equipped to evaluate independently the [] elements of [] crimes[,] and make a determination as to whether the verdicts are compatible with these elements.” Id. at 473 , 44 A.3d at 993 . Lesser-Included Offenses In McNeal, 426 Md. at 458 n.1, 44 A.3d at 984 n.1, this Court explained that a guilty verdict and a not-guilty verdict are legally inconsistent where the crime of which the jury finds the defendant not guilty is a lesser-included offense of the crime of which the jury finds the defendant guilty.

Under “the ‘required evidence test’”—“also known as the ‘same - 11 - evidence test,’ ‘Blockburger test,’[5] or ‘elements test’”—Crime A is a lesser-included offense of Crime B where “all of the elements of [Crime A] are included in [Crime B], so that only [Crime B] contains a distinct element[.]” Abeokuto v. State, 391 Md. 289, 353 , 893 A.2d 1018, 1055 (2006) (citation omitted). In other words, neither Crime A nor Crime B is a lesser-included offense of the other where each crime “contains an element [that] the other does not[.]” Id. at 353 , 893 A.2d at 1055 (citation omitted). The Statutory Definition of Robbery Md. Code Ann., Crim. Law (2002, 2012 Repl.

Vol.) (“CR”) § 3-401(e) defines “robbery” as follows: “Robbery” retains its judicially determined meaning except that: (1) robbery includes obtaining the service of another by force or threat of force; and (2) robbery requires proof of intent to withhold property of another: (i) permanently; (ii) for a period that results in the appropriation of a part of the property’s value; (iii) with the purpose to restore it only on payment of a reward or other compensation; or (iv) to dispose of the property or use or deal with the property in a manner that makes it unlikely that the owner will recover it. The Revisor’s Note to CR § 3-401 states that subsection (e) “is new language derived The term “Blockburger test” comes from Blockburger v. United States, 284 U.S. 5 299 (1932). - 12 - without substantive change from former Art. 27, § 486(b) and (a)(2).” The Elements of Assault of the Intent-to-Frighten Type and Robbery In the Maryland Criminal Pattern Jury Instructions, second-degree assault of the intent-to-frighten type is described as follows: Assault is intentionally frightening another person with the threat of immediate [offensive physical contact] [physical harm]. In order to convict the defendant of assault, the State must prove: (1) that the defendant committed an act with the intent to place (name) in fear of immediate [offensive physical contact] [physical harm]; (2) that the defendant had the apparent ability, at that time, to bring about [offensive physical contact] [physical harm]; and (3) that (name) reasonably feared immediate [offensive physical contact] [physical harm]; [and] [(4) that the defendant’s actions were not legally justified.] MPJI-Cr 4:01A (brackets and underlining in original). “Robbery is the taking and carrying away of property from [someone else] [someone’s presence and control], by force or threat of force, with the intent to deprive the victim of the property.” MPJI-Cr 4:28A (brackets in original). This Court has discussed robbery as the “taking and carrying away of the personal property of another from his [or her] person or in his [or her] presence by violence or putting in fear.” Spencer v. State, 422 Md. 422, 439 , 30 A.3d 891, 901 (2011) (cleaned up).

The “force or threat of force” element has been discussed in terms of the use of “violence or putting in fear.” Id. at 428 , 30 A.3d at 895 (citation omitted). The “threat of force” element has also been described as the use of “intimidation.” Id. at 429 , 30 A.3d at 895 (cleaned up). - 13 - In Dixon v. State, 302 Md. 447, 458-63 , 488 A.2d 962, 967-70 (1985), in discussing the elements of the offense of assault with intent to rob,6 this Court defined the assault aspect of the offense and reviewed federal case law concerning robbery. In Dixon, id. at 452 , 488 A.2d at 964 , a defendant had under his arm a folded newspaper that was pointed at the victim, and he produced a note that demanded money. This Court held that, under those circumstances, the evidence was sufficient to establish the offense of assault with intent to rob.

See id. at 464 , 488 A.2d at 970 . As to the assault element of the offense, this Court quoted the following definition of assault from Lyles v. State, 10 Md. App. 265, 267 , 269 A.2d 178, 179 (1970): [A]ny attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him[ or her]. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention.

Dixon, 302 Md. at 458-59 , 488 A.2d at 967 (emphasis added). In Dixon, id. at 464 , 488 A.2d at 970 , assault with the intent to rob, not robbery itself, was at issue. 6 In Maryland, there once existed a crime called “assault with the intent to rob,” or “assault with intent to rob.” Assault with the intent to rob had three elements: “(1) an assault on [a] victim; (2) made by the [defendant]; (3) with the intent to rob.” Christian v. State, 405 Md. 306 , 316 n.6, 951 A.2d 832 , 838 n.6 (2008) (citation omitted). Before October 1, 1996, Md. Code Ann., Art. 27, § 12 provided that “the crime of an assault with intent to rob” carried a minimum sentence of two years of imprisonment, and a maximum sentence of ten years of imprisonment. 1996 Md. Laws 3617 -18 (Vol. VI, Ch. 632, H.B. 749).

Effective October 1, 1996, Art. 27, § 12 was repealed and replaced with Md. Code Ann., Art. 27, §§ 12A and 12A-1—which, like CR §§ 3-203 and 3-202, criminalized second-degree assault and first-degree assault, respectively. 1996 Md. Laws 3619 (Vol. VI, Ch. 632, H.B. 749). - 14 - With respect to robbery, the Court considered federal case law decided under the federal bank robbery statute.7 The Court stated that “[t]he gravamen of the action . . . is whether intimidation has been shown.” Dixon, 302 Md. at 459 , 488 A.2d at 968 . This Court examined a series of federal cases in which defendants had been charged and convicted of bank robbery under the federal bank robbery statute. See id. at 459-63 , 488 A.2d at 968-70 .

We noted that, in U.S. v. Jacquillon, 469 F.2d 380, 385 (5th Cir. 1972), cert. denied, 410 U.S. 938 (1973), the Fifth Circuit stated: “As used in [the federal bank robbery statute], intimidation means to make fearful or to put into fear. Proof of actual fear is not required in order to establish intimidation.” Dixon, 302 Md. at 461 , 488 A.2d at 969 . After reviewing federal case law, we concluded: “[T]he cited cases make crystal clear that possession of an undisclosed weapon may be inferred from the surrounding facts and circumstances.” Id. at 463 , 488 A.2d at 970 . We ultimately concluded that, in Dixon, id. at 464 , 488 A.2d at 970 , where, among other things, the defendant approached the victim with a written demand for money and a newspaper tightly under his arm in a manner that suggested a weapon, the evidence was sufficient to support the conviction for assault with intent to rob. 7 At that time, the federal bank robbery statute, 18 U.S.C. § 2113 (a), provided: Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association . . . shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

Dixon, 302 Md. at 459 , 488 A.2d at 967-68 (cleaned up). - 15 - In Coles v. State, 374 Md. 114, 116, 123 , 821 A.2d 389, 390-91, 394-95 (2003), where the defendant was convicted of three counts of robbery, as opposed to assault with intent to rob, this Court explained that, under the statute that the defendant was charged with violating—Art. 27, § 486—“the judicially determined meaning of robbery referred to in [the statute included] the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence, or by putting him in fear,” “and as larceny from the person, accompanied by violence or putting in fear.” (Cleaned up). In Coles, id. at 116, 821 A.2d at 390-91 , this Court held that the evidence was sufficient to support a defendant’s convictions for robbery where, on three occasions, the defendant handed a bank teller a note in which he demanded cash. In discussing robbery, this Court observed that, “[t]he hallmark of robbery, which distinguishes it from theft, is the presence of force or threat of force, the latter of which also is referred to as intimidation. Robbery requires a taking of property of any value whatsoever which is accomplished by violence or putting in fear.” Id. at 123 , 821 A.2d at 395 (cleaned up).

In Coles, id. at 125 , 821 A.2d at 395-96 , this Court discussed the case of West v. State, 312 Md. 197, 206 , 539 A.2d 231, 235 (1988), and observed that “we adopted the view that the mere snatching or sudden taking away of the property from the person of another does not constitute sufficient force, violence, or putting in fear to support a robbery conviction.” (Cleaned up). In Coles, 374 Md. at 125 , 821 A.2d at 396 , actual force was not at issue; “rather, the question [was] whether there was sufficient evidence of intimidation, or placing in fear, to support [the defendant’s] convictions for robbery.” As to that issue, the Court reviewed the circumstances of each of the defendant’s three - 16 - robberies. See id. at 129-30 , 821 A.2d at 398-99 . During the first robbery, the defendant entered a bank wearing a baseball hat, a scarf around his neck, and a jacket or shirt capable of concealing a weapon, approached a bank teller, gave the teller a bag and a note demanding money, and ordered the teller not to alert anyone.

See id. at 129 , 821 A.2d at 398 . We stated that, “[g]iven the situation, [the defendant]’s demands and commands could have been interpreted by a reasonable person as suggesting a threat of bodily harm.” Id. at 129 , 821 A.2d at 398 . Similarly, during the second robbery, the defendant approached a bank teller, and silently handed her a bag and a note, in which he demanded money and stated that no one would get hurt if the teller complied. See id. at 129-30 , 821 A.2d at 398 .

The teller “reported that the incident was the scariest moment of her life.” Id. at 130 , 821 A.2d at 398 (cleaned up). We concluded that, “[a]lthough actual fear is not necessary . . . , evidence of it is nonetheless probative of whether a reasonable person would have been afraid under the same circumstances.” Id. at 130 , 821 A.2d at 398-99 . During the third robbery, like the first two, the defendant, who wore a jacket capable of concealing a weapon, entered a bank, approached a teller, and gave her a bag and a note demanding money and “no alarms[.]” Id. at 130 , 821 A.2d at 399 . We concluded “that the evidence of [the defendant]’s conduct was sufficient for a rational fact finder to conclude that the constructive violence aspect of robbery was satisfied in the [] case.” Id. at 130 , 821 A.2d at 399 .

In Spencer, 422 Md. at 425 , 30 A.3d at 893 , this Court held that the evidence was insufficient to support a defendant’s conviction for robbery where the defendant simply told a cashier: “Don’t say nothing.” In Spencer, id. at 436 , 30 A.3d at 899 , this Court - 17 - stated: “This brief statement, by itself, would not cause an ordinary, reasonable person to have felt apprehension that [the defendant] was about to apply force.” In Spencer, id. at 435 , 30 A.3d at 899 , this Court observed that, “[t]he threat of force or intimidation, which ha[d] been present in all of the cases where this Court has upheld robbery convictions, [was] simply absent in th[e] case.” We concluded: Like West, [ 312 Md. 197 , 539 A.2d 231 ,] there was no force used to take the property; there was no resistance on the part of the victim, and there was no injury or evidence of fear or intimidation. The State failed to prove an essential element of the robbery charge, and [the defendant]’s robbery conviction should not stand. Spencer, 422 Md. at 437 , 30 A.3d at 900 . Analysis I would conclude that, to determine whether a guilty verdict and a not-guilty verdict are legally inconsistent, a court must first confirm that the trial court correctly instructed the jury regarding the two crimes’ elements, then ascertain whether the crime of which the jury found the defendant not guilty is a lesser-included offense of the crime of which the jury found the defendant guilty.

In so ascertaining, the court may, if necessary, consider case law regarding what constitutes a lesser-included offense. In other words, the court is not required to limit its analysis to an examination of the jury instructions. An inquiry into whether a guilty verdict and a not-guilty verdict are legally inconsistent is necessarily premised on the trial court having correctly instructed the jury - 18 - regarding the two offenses’ elements.8 As this Court noted in Givens, 449 Md. at 454 , 144 A.3d at 729 , “legally inconsistent verdicts occur where a jury acts contrary to a trial court’s proper instructions regarding the law.” (Quoting Price, 405 Md. at 35 , 949 A.2d at 634 (Harrell, J., concurring)) (cleaned up). I agree with the parties that, where a defendant contends that a guilty verdict and a not-guilty verdict are legally inconsistent, an appellate court’s first task is to confirm that the trial court correctly instructed the jury regarding the two crimes’ elements.9 Once an appellate court confirms that the trial court correctly instructed the jury regarding the elements of the crimes, the appellate court’s next task is to determine whether the crime of which the jury found the defendant not guilty is a lesser-included offense of the crime of which the jury found the defendant guilty.

This Court’s holding in McNeal 8 In my view, a court is not