Tate v. State

MOYLAN, J. The primary subject of this appeal is the legal effect of inconsistent verdicts, especially jury verdicts consisting of a conviction and an acquittal. The appellant, Darren Joseph Tate, was convicted by a Prince George’s County jury, presided over by Judge Graydon S. McKee, III, of the sexual abuse of his 16-year-old stepdaughter. In this appeal he raises the two contentions 1. that Judge McKee, in two respects, erroneously failed to take all necessary measures to preclude the jury from returning allegedly inconsistent verdicts; and 2. that Judge McKee erroneously restricted his cross-examination of the complaining witness, Koree Buffing-ton. The Alleged Inconsistency The appellant was indicted on three charges: 1) sexual child abuse, 2) a sexual offense in the fourth degree, and 3) second-degree assault.

The jury acquitted the appellant of second-degree assault, and that verdict is not a factor on this appeal. ³⁷⁰ The jury also acquitted the appellant of the fourth-degree sexual offense, and that verdict is a big factor. The appellant contends that that acquittal was logically inconsistent with the jury’s having convicted him of sexual child abuse of his stepdaughter because both charges were based on allegedly identical conduct. The appellant concedes, at the outset, that logically inconsistent verdicts by a jury, unlike logically inconsistent verdicts by a judge sitting without a jury, are not in themselves a basis for reversing a conviction. Hoffert v. State, 319 Md. 377, 383-85 , 572 A.2d 536 (1990); Shell v. State, 307 Md. 46, 52-58 , 512 A.2d 358 (1986); Ford v. State, 274 Md. 546, 551-56 , 337 A.2d 81 (1975); Leet v. State, 203 Md. 285, 294 , 100 A.2d 789 (1953); Price v. State, 172 Md.App. 363, 388-90 , 915 A.2d 432 (2007); Hudson v. State, 152 Md.App. 488, 513-16 , 832 A.2d 834 , cert. denied, 378 Md. 618 , 837 A.2d 928 (2003).

Unable to attack the alleged inconsistency directly, the appellant attempts to do so indirectly. He contends initially that Judge McKee failed to take adequate steps to forestall the inconsistent verdicts when he denied the appellant’s request to rearrange the verdict sheet so as to require that the jury first reach a verdict on the fourth-degree sexual offense with the attendant instruction that if they reached a not guilty verdict on that charge, they would not even consider the sexual child abuse charge. The appellant’s second indirect attack is on Judge McKee’s jury instructions. Although the appellant made no such request at the time, he now contends that Judge McKee was nonetheless in error for failing, sua sponte, to tell the jury: You may not find the Defendant guilty of sexual abuse unless you are convinced beyond a reasonable doubt that he is guilty of committing a sexual offense in the fourth degree.

Factual Background The victim, Koree Buffington, had just turned 16 years of age when the act of alleged child abuse took place. She was ³⁷¹ 17 years old at the time of trial. The appellant is her stepfather, with whom Koree had been living as part of the same household. The household consisted of Koree, her mother, the appellant, Koree’s grandmother, Koree’s sister, a cousin, and a nephew.

According to Koree herself, she and the appellant had always had a “close” relationship with each other. She described how they would regularly “hang out and just ride to school together” and how “they would joke and play-fight with one another.” In her trial testimony, Koree described the abusive incident. On a day several days after Koree’s 16th birthday, the appellant knocked on Koree’s bedroom door and she told him to come in. “After he came in, I was like sitting on the floor and he then pulled me up and put my hands around him, and he started touching me.” She testified that the appellant placed her hands around his neck and then “he like took my hands down, and I hugged him like around where his waist was.” Koree’s critical testimony was that while the appellant was holding her, he put his hands inside her underwear. “He started rubbing outside my vagina.” After that, the appellant “just started hugging me, and told me he loved me, and left.” 1 Koree believed that while this incident was taking place, her mother was in her bathroom and her grandmother was in her room in the basement. After the appellant left her room, Koree called a girlfriend and told her what had occurred.

She did not, however, tell her mother or anyone else in the household “because nobody would believe me.” Koree elaborated that while she had a “playful relationship” with the appellant, it was “not O.K. for him to kiss her.” She added that she did not believe that the appellant was trying to hurt her. This entire incident came to the attention of the authorities through the medium of Khadijah Tribble. Ms. Tribble worked ³⁷² at the Covenant House in Washington, D.C., where Koree participated in an after-school program. The version of the event that Koree recounted to Ms. Tribble differed, at least in detail, from the version Koree testified to at trial.

She told Ms. Tribble that “she was asleep when her step-father came into the room, and that he got on top of her and tried to kiss her. She said that her clothes were on, and that he tried to fondle her, or did fondle her.” After hearing this from Koree, Ms. Tribble, on her own initiative, reported it to the Prince George’s County authorities. Ms. Tribble went further and actually spoke with the appellant in an effort “to try to intervene; [to] provide additional services and resources for them.” According to Ms. Tribble, the appellant neither admitted nor denied the accusation. According to her testimony, “[H]e did share the possibility [that] if there’s anything he’s guilty of, its playing rough with his daughters or sometimes not knowing when enough is enough.” The third and final State’s witness was Detective Wayne Pyles, who reported the responses of the appellant when confronted with the accusation.

In a written statement, the appellant averred that he had no recollection of ever having touched his stepdaughter’s breast or vagina. The appellant added a message to Koree in which he said: Because what you said happened, I’m so sorry. I love you. Daren.

When Detective Pyles then asked the appellant if he was “apologizing to Koree because you fondled her breasts and vagina?,” the appellant declined to answer because, he told the detective, “the word ‘fondled’ implied a sexual intent.” The appellant told Detective Pyles that “Koree was not lying,” but that he steadfastly denied doing “anything of a sexual connotation.” The appellant took the stand in his own defense. He denied having touched Koree outside of her vagina or in any sexual manner. He explained: ³⁷³ My relationship with Koree has been very, well, inappropriate. I was not acting like an adult.

I was acting more like a peer, and I guess I acted like a peer to try to be accepted [by] a step-daughter. The appellant elaborated that he knew that initially Koree “didn’t really want me and her mother to be married,” and that, in an effort to overcome that initial coolness, he made a special effort to be nice to her and to be her friend. He added that Koree was very “tomboyish” and physical and that, in interacting, the two of them would wrestle, box, and “we would touch.” He did not deny touching Koree because, as he explained, “We play all the time, for me to say I have never touched her would be for me to just outright lie.” He further explained that he wrote the apology to Koree after speaking with Detective Pyles “because it deeply hurt me to think that she took anything, or our playing, in any kind of sexual way.” He concluded that the incident in question did not happen in the way that Koree reported it. The two of them were “just playing at the time.” Jocelyn Alexander-Tate, Koree’s mother and the appellant’s wife, testified for the defense.

She had been married to the appellant for three years, and Koree had lived with them “off and on for two years.” She testified that the relationship between the appellant and Koree typically involved “a lot of roughhousing. They were kind of like peers.” The mother had never interpreted the interaction between the appellant and Koree as being sexual in any way. Also testifying for the defense was Kiana Simmons, the appellant’s 18-year-old daughter. She explained that Koree had a very different relationship with her father than she herself did. “She was real cool with him; like they played a lot, and they would joke and stuff.” Ms. Simmons testified that she had never observed any behavior of a sexual nature between the two. 2 ³⁷⁴ The Verdicts Were Not Necessarily Inconsistent A frequent defense to a contention based on inconsistent verdicts and one of the State’s alternative defenses in this case is that the verdicts were not actually inconsistent and, on close examination, can be reconciled.

The area of factual disagreement between the State and the defense is narrow. It is not nearly so much a disagreement over what happened as it is a disagreement over the significance of what happened. The gravamen of the State’s case against the appellant, both for the sexual abuse of a minor pursuant to Maryland Code, Criminal Law Article, § 3-602(b), and for the fourth-degree sexual offense pursuant to § 3 — 308(b)(1), is Koree’s testimony that the appellant put his hands in her underwear and “started rubbing outside my vagina.” That is the limited factual fulcrum upon which guilt or innocence for either of the criminal charges turns. It was that act of “rubbing outside [Koree’s] vagina” that was the sine qua non of the appellant’s sexual abuse of Koree.

It was that act of “rubbing outside [Koree’s] vagina” that was the sine qua non of the appellant’s non-consensual sexual contact with Koree that allegedly constituted a fourth-degree sexual offense. From that predicate of a common factual basis for the two crimes, the appellant constructs his thesis that 1) the jury’s conviction of him for sexual child abuse necessarily meant that the jury was persuaded beyond a reasonable doubt that the appellant did, indeed, “rub outside Koree’s vagina” but 2) the jury’s acquittal of him for the fourth-degree sexual offense necessarily meant that the jury was not persuaded beyond a reasonable doubt that he had “rubbed outside Koree’s vagina.” As the appellant characterizes the verdicts, the jury was at one and the same time both convinced that “he did it” but not convinced that “he did it.” According to the appellant, the jury reached diametrically opposed and inconsistent verdicts that cannot be reconciled and Judge McKee was in error for failing to take sufficient steps to forestall such inconsistency. ³⁷⁵ The appellant’s characterization of the verdicts, however, is much too simplistic. The flaw in the appellant’s logic is that one of the premises on which he relies is not necessarily true. The acquittal of the appellant for a fourth-degree sexual offense does not, even on the particular facts of this case, necessarily mean that the jury was not persuaded beyond a reasonable doubt that the appellant had “rubbed outside Koree’s vagina.” Even given the jury’s persuasion of that predicate fact, a fourth-degree sexual offense may require something more.

The acquittal on the fourth-degree sexual offense charge could well have come about for either of two different and arguably plausible reasons. One concerns the actus reus of a fourth-degree sexual offense. The other concerns its mens rea. Our analysis begins with the general proposition that sexual child abuse is broader than, inter alia, even a closely related sexual offense and that, granted a substantial overlap in coverage, may be established even though the related sexual offense has not been completely established.

Section 3-602(a)(4) defines sexual child abuse as follows: (4)(i) “Sexual abuse” means an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not. (ii) “Sexual abuse” includes: 1. incest; 2. rape; 3. sexual offense in any degree; 4. sodomy; and 5. unnatural or perverted sexual practices. (Emphasis supplied). The appellant is correct that the only one of those included examples of sexual abuse that is close to being pertinent in this case is a sexual offense in the fourth degree.

Being close to being pertinent, however, is not the same as actually being pertinent. Although “sexual abuse” includes those five statutorily listed examples, it most definitely is not ³⁷⁶ limited to those examples.. Judge Cathell was very clear on that point in Degren v. State, 352 Md. 400, 428 , 722 A.2d 887 (1999): Section 35C(a)(6)(ii) [the substantively unchanged predecessor to what is now § 3-602(a)(4) of the Criminal Law Article] enumerates actions describing types of sexual abuse, but the general phrase, “Sexual abuse includes, but is not limited to” precedes the enumerated list and states specifically that the list is not exhaustive. Furthermore, given general legislative policy and the purpose of the child abuse statute to protect minors from abuse, we find it difficult to believe the General Assembly chose to limit the forms of sexual abuse punishable to only those listed in section 35C(a)(6)(ii).

(Emphasis supplied). To be sure, the earlier version of the child abuse law, Art. 27, § 35C(a)(6)(ii), stated that sexual abuse “includes, but is not limited to” the examples then listed, whereas the new codification, Criminal Law Article, § 3-602(a)(4), merely precedes the list of examples with the word “includes.” The Special Revisor’s Note to the 2002 recodification, however, expressly points out that although there have been minor changes in wording, there has been no change in substance in the course of moving the offense from Article 27 to the Criminal Law Article. “Includes” still means “includes but is not limited to.” In Nightingale v. State, 312 Md. 699, 708 , 542 A.2d 373 (1988), the Court of Appeals also recognized that the definition of sexual child abuse is broader than the collective definitions of the statute’s list of representative examples of sexual child abuse. The problem, then, is that we cannot tell whether these general verdicts of guilty were based on the use of sexual offenses as lesser included offenses (or elements) of child abuse, or whether the child abuse verdicts were based on other reasons (e.g., some sort of sexual molestation which ³⁷⁷ the juries thought did not rise to the level of a sexual offense in any degree.) (Emphasis supplied). There may be the commission of sexual child abuse even if none of the five related offenses statutorily listed as examples of sexual child abuse has been committed.

The non-commission of so much as a single one of the latter does not necessarily imply the non-commission of the former. Our first examination will be a comparison between the actus reus of sexual child abuse and the actus reus of a fourth-degree sexual offense, even in the limited context of allegedly illegal behavior consisting of an intentional touching by the defendant of a part of the victim’s body. Is the one actus reus necessarily coterminous with the other? All that is required for a touching to constitute sexual abuse is that it could be deemed to involve the “sexual molestation or exploitation of a minor.” That is open-ended language.

The touching that may constitute a fourth-degree sexual offense, by contrast, is more tightly defined. It is spelled out by § 3-308(a): (a) Prohibited. — A person may not engage in: (1) sexual contact with another without the consent of the other. Section 3-301 (f), in turn, gives us a definition of what “sexual contact” consists of: (f) Sexual contact. — (1) “Sexual contact”, as used in §§ 3-307 and 3-308 of this subtitle, means an intentional touching of the victim’s or actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party. (2) “Sexual contact” includes an act: (i) In which a part of an individual’s body, except the penis, mouth or tongue, penetrates, however slightly, into another individual’s genital opening or anus; and (ii) That can reasonably be construed to be for sexual arousal or gratification, or for the abuse of either party. ³⁷⁸ (3) “Sexual contact” does not include: (i) A common expression of familial or friendly affection.

(Emphasis supplied). Clearly there was no suggestion in this case that any part of the appellant’s body ever penetrated, however slightly, into Koree’s genital opening and subsection (2) can, therefore, be factored out of any further consideration. The single, fleeting testimonial reference to “rubbing outside my vagina” does not tell us with anatomical exactitude precisely what that entailed. In terms of the actus reus, it is possible, indeed probable, that the appellant’s intentional “nibbing outside Koree’s vagina” constituted an intentional touching of Koree’s genital area, but that is not absolutely free of all uncertainty.

We are mindful of the caution displayed by Judge Wilner in Cooksey v. State, 359 Md. 1 , 24 n. 1, 752 A.2d 606 (2000), as he questioned whether “touching a person’s buttocks” or “rubbing against the victim” amounted to sexual contact even though those actions might clearly represent “sexual molestation or exploitation” so as to constitute sexual child abuse. Section 461(f) of Article 27 [from which § 3-301(f) derives without substantive change] includes within the definition of “sexual contact” the intentional touching of the victim’s anal or genital areas or other “intimate parts” for the purpose of sexual arousal or gratification. Whether the touching of a person’s “buttocks” would suffice as sexual contact is not clear. It might, however, depending on the circumstances, constitute sexual molestation or exploitation, even if it did not constitute sexual contact.

The same situation could arise from “rubbing against” the victim. (Emphasis supplied). There was no conviction for the fourth-degree sexual offense in this case, and we are not, therefore, called upon to resolve the still unresolved scope of the term “sexual contact.” It is enough for us to note that one or more of the jurors might possibly have concluded, rightly or wrongly, that “rubbing outside the vagina” did not constitute sexual contact within the contemplation of a fourth-degree sexual offense law even ³⁷⁹ though it may have constituted “sexual molestation or exploitation” within the contemplation of the sexual child abuse law. That possibility would eliminate any inconsistency between the conviction for sexual child abuse and the acquittal for a fourth — degree sexual offense.

The potential difference between a fourth-degree sexual offense and sexual child abuse is even more pronounced when we turn our focus on the mens rea of each offense. The sexual abuse of a minor pursuant to § 3-602 does not involve any specific intent or special mens rea. An act of sexual contact, within the contemplation of §§ 3-301(f), 3-307, and 3-308, by contrast, requires the proof of a very particularized specific intent or special mens rea. The intentional touching, whatever its scope, must be perpetrated “for sexual arousal or gratification, or for the abuse of either party.” § 3 — 301(f)(1).

There is no comparable mental requirement in the sexual child abuse law. In looking at all of the evidence in this case, there is a strong possibility that the jury (or some of the jurors) could well have concluded that the appellant’s unrestrained behavior may have amounted to sexual child abuse but that he did not harbor that specific intent of acting for “sexual arousal or gratification” necessary for a fourth-degree sexual offense. Although he did not remember having done so, the appellant freely acknowledged that, in the course of playful roughhousing, he may well have touched Koree inappropriately but he forcefully disclaimed any sexual purpose or orientation in his actions. On the stand, the appellant disclaimed any sexual purpose or intention.

To Khadijah Tribble the appellant disavowed any sexual intent in his roughhousing with Koree. To Detective Pyles the appellant vigorously denied having “a sexual intent” or “anything of a sexual connotation.” Koree herself acknowledged the ongoing “playful relationship” between them and stated her belief that the appellant was not trying to hurt her. Koree’s mother confirmed that the relationship between the appellant and Koree involved “a lot of roughhous ³⁸⁰ ing” but that, over the course of three years, she had never observed any interaction of a sexual nature between them. Kiana Simmons characterized the relationship precisely as had Koree’s mother.

It takes no stretch of the imagination to conclude that the jury may have found the appellant’s behavior to have been inappropriate but may also have believed the appellant that his actions were not motivated by “sexual arousal or gratification.” All that would be required, of course, is that the jury (or some of the jurors) were not persuaded beyond a reasonable doubt that his actions were specifically intended “for sexual arousal or gratification.” That, indeed, was the heart of the appellant’s defense, to wit, that he may have touched Koree inappropriately but that he did not do so for sexual purposes. The very success of the appellant’s defense may well be the obvious explanation for the appellant’s acquittal on the fourth-degree sexual offense charge, notwithstanding his conviction for sexual child abuse. The appellant worked hard for that allegedly inconsistent verdict and should be happy in his success. Our conclusion is that the two verdicts were not necessarily inconsistent at all.

With the failure of the appellant’s central thesis, his indirect attack on the inadequacy of Judge McKee’s preventive measures self-evidently founders. There was nothing inconsistent and, therefore, nothing even arguably erroneous about the verdicts. The appellant’s indirect attack on what Judge McKee did or did not do, therefore, reduces itself to the claim that Judge McKee failed to take all necessary measures to prevent non-error. That is simply not a cognizable appellate contention.

The subcontention that Judge McKee should have reconfigured the verdict sheet so that the jury should first consider the fourth-degree sexual offense charge and then be told that if it returned a verdict of not guilty on that charge, it should not even consider the charge of sexual child abuse is without a shred of merit. For all of the reasons we have discussed, such advice would have been wrong. The jury ³⁸¹ might logically convict of sexual child abuse notwithstanding an acquittal for the fourth-degree sexual offense. Similar advice in the course of jury instructions, to the effect that an acquittal on the fourth-degree sexual offense charge would compel an acquittal on the sexual child abuse charge, would have been equally wrong.

It is redundant further to point out that such a jury instruction was never even requested and that this entire subcontention, meritless as it otherwise may be, has not been preserved for appellate review. Inconsistent Verdicts: An Overview The appellant cannot prevail on this first and primary contention about inconsistent verdicts for another and totally independent reason. Even if, purely arguendo, everything we have said to this point were wrong and the two verdicts were, indeed, as inconsistent as inconsistent can be, it would still make no difference to the outcome of this ease. In multi-count and multi-indictment trials, we agree with the appellant that a neat and orderly set of logically consistent verdicts is highly commendable and always to be desired.

In jury trials and court trials alike, however, the actual result frequently falls short of that aspiration. The question then becomes one of what relief, if any, should be deemed necessary and appropriate. The alleged inconsistency between the jury’s verdicts in this ease haunts the appellant. He insists upon logical consistency as the Holy Grail, and for him any lesser quest is unworthy.

For the State, on the other hand, a demand for a consistency in verdicts at all costs is not only foolish, it is the dreaded exemplar of Emerson’s “hobgoblin.” 3 Our overview may appropriately begin with the observation made by Judge Digges for the Court of Appeals in Ford v. State, 274 Md. 546, 551 , 337 A.2d 81 (1975): ³⁸² In answering Ford’s second contention it is only necessary for us to emphasize that this “hobgoblin” of what appears to be jury verdict inconsistency, which haunts the petitioner in this case, has long been exorcised not only by this Court but also by many other courts across this nation. (Emphasis supplied). A. Inconsistency Between Convictions An overview of inconsistency presents not a single picture but a variegated one. Like Caesar’s Gaul, it is divided into three parts, and, doctrinally speaking, those distinct provinces are almost independent countries.

The rules that are applicable and the language that is appropriate in one do not always travel well into the others. An inconsistency opinion tempted to borrow a statement or a principle from another inconsistency opinion, therefore, should be extremely cautious first to identify the specific sub-context in which the earlier statement was made. The three subdivisions are not necessarily fungible. Traditionally, a distinction has always been made between 1) two inconsistent convictions and 2) a conviction and an inconsistent acquittal.

The Court of Appeals condemned the rendering of two inconsistent convictions in Heinze v. State, 184 Md. 613 , 42 A.2d 128 (1945). In the days before Maryland’s 1978 Consolidated Theft Law, a defendant could not for the same act be both a thief and a receiver of stolen goods. A set of verdicts that proclaimed him to be both was necessarily illogical. There was no alternative explanation.

It is unquestioned that a finding of guilty on two inconsistent counts is invalid. Thus, where a defendant is charged in one count with larceny and in another count with receiving stolen goods, and it plainly appears that the property alleged to have been stolen is that also alleged to have been received, a general verdict of guilty is fatally defective, because in law a thief cannot be guilty of the crime of receiving stolen goods which he himself has stolen, and a guilty receiver of stolen goods cannot himself be the ³⁸³ thief and hence the defendant could not be guilty on both counts. Id. at 617 , 42 A.2d 128 (emphasis supplied). See also Henry v. State, 273 Md. 131, 137-38 , 328 A.2d 293 (1974); Tucker v. State, 237 Md. 422, 425, 206 A.2d 691 (1965); Fabian v. State, 235 Md. 306, 313-14 , 201 A.2d 511 (1964); Fletcher v. State, 231 Md. 190, 193 , 189 A.2d 641 (1963); Young v. State, 220 Md. 95, 100 , 151 A.2d 140 (1959); Jenkins v. State, 59 Md.App. 612, 618 , 477 A.2d 791 (1984) (“An intent to maim, disfigure, or disable necessarily falls short of, and thus excludes, an intent to kill.”).

Even in the case of two inconsistent convictions, however, neither of the verdicts will be disturbed on appeal if 1) the defendant failed to make timely objection to the inconsistency at the time the verdicts were rendered and 2) no real prejudice can be shown, to wit, something more than simply an inconsistency in the abstract. Because the prejudice possibly arising out of inconsistent convictions would consist of either multiple sentences or an excessive sentence on one of the convictions, no real prejudice would result if 1) only a single sentence were imposed and 2) that sentence was within the range of sentencing available for the lesser of the two convictions. Hardesty v. State, 223 Md. 559, 562 , 165 A.2d 761 (1960); Bell v. State, 220 Md. 75, 80-81 , 150 A.2d 908 (1959); Novak v. State, 139 Md. 538 , 115 A. 853 (1921); Dickens v. State, 175 Md.App. 231, 243-45 , 927 A.2d 32 (2007). It is here, in the distinct context of inconsistent convictions, that the factor of “where real prejudice is shown” may have a bearing on the preservation requirement with respect to jury instructions.

The “real prejudice” that must be shown to “trump” the preservation requirement is, as the above cases all demonstrate, either 1) multiple sentences or 2) a sentence in excess of that allowable for the lesser of the two convictions. Such prejudice is unambiguous and undeniable. 4 ³⁸⁴ Even in such a case, however, as Jenkins v. State, 59 Md.App. at 622 , 477 A.2d 791 , illustrates, the necessary by-passing of the preservation requirement is through the notice of “plain error” pursuant to Maryland Rule 4-325(e). This case presents that very circumstance noted in the footnote in Bell, supra, 220 Md. at 81, 150 A.2d 908 . The court not only imposed separate sentences on both convictions, but the twenty-five year sentence meted out for assault with intent to murder far exceeded the ten-year maximum allowed for assault with intent to maim, disfigure, or disable.

Clearly, there was prejudice here, and it is of sufficient magnitude to require that we exercise our discretion under [Rule [-325(e) ] and take cognizance of the error. There is an almost unbridgeable divide between the case of an inconsistency between two convictions (by judge or jury), on the one hand, and an inconsistency between a jury’s conviction and a jury’s acquittal, on the other hand. In the case of inconsistent convictions, the fact finder has necessarily and affirmatively found two things that are unquestionably irreconcilable. There is nothing to speculate about, and such an incongruous result is flatly prohibited.

As the caselaw has been pointing out for 75 years, however, there are a number of plausible explanations for an apparently inconsistent acquittal by a jury and the law does not mandate a reversal based on mere speculation as to what the actual explanation may have been. In the one case, appellate review is rigid. In the other case, it is extremely indulgent. These two species of inconsistency are so inherently different that doctrinal cross-fertilization is problematic in the extreme.

Statements made in the context of inconsistent conviction cases may have no applicability at all in the very different world of an inconsistency between a jury’s conviction and a jury’s acquittal. Pronouncements quite correctly made ³⁸⁵ in the first context can be treacherous if uncritically misapplied in the second. Such a doctrinal transplant does not always take. In the present case, however, we are not dealing with inconsistent convictions.

B. Inconsistent Verdicts By a Judge Versus Inconsistent Jury Verdicts Traditionally the law has also always looked with a far more jaundiced eye on inconsistent verdicts returned by a trial judge sitting without a jury than on inconsistent verdicts returned by a jury. As will be more fully discussed, there are a number of plausible and readily understandable reasons why a jury may render inconsistent verdicts and why the law is accordingly indulgent. With trial judges, by stern contrast, the law marks the judge’s paper with rigorous scrutiny. The pioneering analysis of this distinction in treatment was the opinion of Judge Henry Friendly for the United States Court of Appeals for the Second Circuit in United States v. Maybury, 274 F.2d 899 (2d Cir.1960).

In a court trial, the United States District judge had unquestionably rendered inconsistent verdicts when, on the evidence in that case, he acquitted the defendant of forgery but convicted him of uttering a forged check knowing it to be forged. The Government defended against the claim of inconsistency by relying on Dunn v. United States, 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932) and Steckler v. United States, 7 F.2d 59 (2d Cir.1925), in which the Supreme Court and the Second Circuit respectively had tolerated inconsistent verdicts returned by juries. The Government sought analogous treatment for inconsistent verdicts returned by a judge. The government says that, under our decision in Steckler v. United States, and the Supreme Court’s approval of this in Dunn v. United States, inconsistency in the disposition of counts in an indictment is without legal significance.

Recognizing that these cases dealt with inconsistencies in a jury verdict, the government contends the same principle ought ³⁸⁶ be applied when a criminal indictment has been tried to a judge. 274 F.2d at 902 (emphasis supplied). Judge Friendly’s response began with the recognition that certain considerations that apply in the case of a jury trial do not necessarily apply to the case of a bench trial. The Steckler and Dunn opinions show on their face that the decision to ignore inconsistencies in the verdict of a jury in a criminal case was based on special considerations relating to the nature and function of the jury in such cases rather than on a general principle to be applied even when these considerations were absent. Id.

(emphasis supplied). One of the classic explanations for jury inconsistency is the power of the jury, even in the face of logic, to extend lenity to a defendant. Fearful that multiple convictions, even if logically compelled, might result in multiple punishment, a jury may arbitrarily return a single conviction and then choose to let it go at that. A jury may simply refuse to “pile on” a defendant even if logic seems to demand it. 5 The Maybury opinion described this jury tactic for promoting lenity.

The vogue for repetitious multiple count indictments may well produce an increase in seemingly inconsistent jury verdicts, where in fact the jury is using its power to prevent the punishment from getting too far out of line with the crime. Id. (emphasis supplied). While the law indulges the jury’s indirection as a way of avoiding excessive punishment, whether that is properly the jury’s concern or not, there is no necessity to resort to such an outflanking maneuver in the case of a court trial.

While the historic position of the jury affords ample ground for tolerating the jury’s assumption of the power to insure ³⁸⁷ lenity, the judge is hardly the “voice of the country,” even when he sits in the jury’s place. If he deems an indictment multiplicious, he has only to say so, and the time for him to exercise any “lenity” that he deems warranted is on sentence. Id. at 903 (emphasis supplied). A second classic explanation for jury inconsistency is the necessary compromising that may be required in order for a jury to reach a unanimous verdict. “I will agree, reluctantly, to a conviction on Count One only if you begrudge me an acquittal on Count Two.” “Done!

We’ve got a verdict.” Judge Friendly described such compromising as perhaps the necessary price to be paid for the luxury of trial by jury. Ignoring inconsistency in a jury’s disposition of the counts of a criminal indictment may thus be deemed a price for securing the unanimous verdict that the Sixth Amendment requires. Steckler and Dunn thought it not too high a price for “the most transcendent privilege which any subject can enjoy or wish for.” Id. (emphasis supplied).

Once again, however, there is no price that needs to be paid to achieve unanimity in the case of a verdict rendered by a judge alone. There is no need to permit inconsistency in the disposition of various counts so that the judge may reach unanimity with himself; on the contrary, he should be forbidden this easy method for resolving doubts. We do not believe we would enhance respect for law or for the courts by recognizing for a judge the same right to indulge in “vagaries” in the disposition of criminal charges that, for historic reasons, has been granted the jury. Id.

(emphasis supplied). A judge’s verdicts are not permitted to be schizophrenic. Maryland first recognized the United States v. Maybury distinction between a jury’s inconsistency and a judge’s inconsistency in Johnson v. State, 238 Md. 528 , 209 A.2d 765 (1965). Johnson managed to distinguish Maybury because the judge ³⁸⁸ in Johnson had provided a full and rational explanation for what, absent such explanation, might otherwise have appeared to be an inconsistent acquittal of what looked like, but actually was not, a lesser included count.

The Johnson court nonetheless recognized the validity of the distinction between jury trials and court trials, as it quoted liberally from Maybury and placed its imprimatur on Judge Friendly’s opinion as “lucid and scholarly.” 238 Md. at 543 , 209 A.2d 765 . In Shell v. State, 307 Md. 46 , 512 A.2d 358 (1986), the Court of Appeals held squarely that, in a court trial, it was fatally inconsistent to convict a defendant of using a handgun in the commission of a felony or crime of violence while at the same time acquitting him, because of his inability to form the necessary specific intent, of the underlying felony or crime of violence. When the State sought to rely on Ford v. State, 274 Md. 546 , 337 A.2d 81 (1975), which had permitted such an inconsistency in the course of jury verdicts, Judge Eldridge focused on the critical distinction. In the present case, however, the inconsistent verdicts were rendered by a judge, not by a jury.

The Ford holding does not justify inconsistent verdicts from the trial judge. 307 Md. at 55 , 512 A.2d 358 . The Court of Appeals in Shell followed Johnson v. State, supra, and the opinion of the Second Circuit in United States v. Maybury. The inconsistency in the verdicts by the judge was accordingly fatal. The case at bar is not one in which there is only an apparent inconsistency which in substance disappears upon review of the trial court’s explanation.

Unlike the situation in Johnson, the trial court’s findings in this case are not consistent with the challenged guilty verdict. ... In the instant case ... the trial court found that the defendant did not commit the felony or crime of violence which is an element of the handgun charge. If the defendant lacked the required mens rea to have committed the predicate felony ³⁸⁹ or crime of violence, as the court found, then an element or “prerequisite” of the § 36B(d) handgun offense was lacking. 307 Md. at 57-58 , 512 A.2d 358 (emphasis supplied). In Stuckey v. State, 141 Md.App. 143 , 784 A.2d 652 (2001), Judge Davis’s opinion for this Court made it clear that, in a court trial, the conviction of the defendant for involuntary manslaughter of the gross negligence variety and the acquittal of the defendant for negligent driving were fatally inconsistent.

The opinion built upon Shell v. State, Johnson v. State, and United States v. Maybury and concluded: Pursuant to § 388, “grossly negligent” operation of a motor vehicle is clearly an element of the crime of manslaughter by automobile. By its terms, grossly negligent driving involves a higher degree of negligence than does mere negligent driving. Therefore, [if] one [was] convicted of a crime of which grossly negligent driving was an element, he or she would also be guilty of negligent driving. Appellant, acquitted of the charge of negligent driving, was subsequently convicted of manslaughter by automobile.

Appellant’s guilt of manslaughter by automobile was predicated on grossly negligent driving, which rendered him irrefutably guilty of the lesser offense of negligent driving. The verdicts were inconsistent. 141 Md.App. at 159-60 , 784 A.2d 652 (emphasis in original). In the present case, we are not dealing with inconsistent verdicts rendered by a judge. C. Inconsistent Jury Verdicts of Conviction and Acquittal This third species of inconsistent verdicts is involved only 1) when the inconsistency is between a conviction and an acquittal and 2) when both verdicts have been rendered by a jury.

See Galloway v. State, 371 Md. 379, 401 , 809 A.2d 653 (2002) (In a hybrid trial mingling court and jury verdicts, “the reasons why inconsistent jury verdicts are tolerated simply do not apply where a judge is involved in rendering one of the inconsistent verdicts.”). ³⁹⁰ The first meaningful analysis of why inconsistent jury verdicts, when the alleged inconsistency is between a conviction on one charge and an acquittal on a related charge, are generally accepted was the opinion of Judge Learned Hand for the Second Circuit Court of Appeals in Steckler v. United States, 7 F.2d 59 (2d Cir.1925). The Second Circuit was confronted with an undeniable inconsistency in the jury’s verdicts. There is a plain inconsistency in saying that the liquors were kept for sale, and in saying that the shop in which they were was not one in which the same liquors were kept for sale. We cannot, therefore, avoid the question whether this inconsistency invalidated the verdict of guilty on count 2.

Id. at 60 (emphasis supplied). The Court was really plowing new ground, for as Judge Hand observed: No doubt it has generally been assumed that, if the verdict was rationally inconsistent, the conviction ought not to stand, and probably that was the common law, though it is hard to find a case squarely so holding. Id. Judge Hand explained that the pertinent question in cases in which inconsistent verdicts of guilty and not guilty are returned is whether, with respect to the guilty verdict, the jury was truly persuaded of the defendant’s guilt.

Because the acquittal on one charge may well have been based upon a desire to guarantee lenity or upon a compromise to achieve unanimity, the not guilty verdicts do not cast sufficient doubt upon the jury’s return of the guilty verdict to justify overturning it on mere speculation. The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. ³⁹¹ That the conviction may have been the result of some compromise is, of course, possible; but to consider so is to consider too curiously, unless all verdicts are to be upset on speculation. That it represented their deliberate judgment seems to us beyond any reasonable doubt.

Id. (emphasis supplied). If Judge Hand’s decision in Steckler v. United States paved the way, it was Justice Holmes’s opinion for the Supreme Court in Dunn v. United States, 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932), that gave the principle the prominence that it has enjoyed for the last 75 years. A jury had convicted Dunn of maintaining a common nuisance by keeping intoxicating liquor for sale at a specified place.

The same jury, however, had acquitted Dunn of both 1) the unlawful possession of the intoxicating liquor and 2) the unlawful sale of said liquor. Dunn contended that the conviction could not stand in light of the inconsistent acquittals. The defendant says that the evidence did not warrant a conviction and that the verdict on the second and third counts is inconsistent with that upon the first and that for this reason also he is entitled to be discharged. The evidence was the same for all the counts.

Id. at 392 , 52 S.Ct. 189 . Justice Holmes’s opinion was brief but certain: Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res