Travis v. State

MOYLAN, J. Lack of consent on the part of the victim is an indispensable element of the crime of rape and of the various degrees of sexual offense. Proof of lack of consent will routinely consist of a negative response, either explicit or implicit, on the part of the victim. The key issue on this appeal arises, however, from the fact that the lack of consent may, under certain circumstances, be proved simply by showing a non-response. The negative response and the non-response may have the same effect but they are proved in very different ways.

It is that difference in proof that gives rise to this appeal. The appellant, James Lee Travis, was convicted in the Circuit Court for Worcester County by Judge Thomas C. Groton, III, sitting without a jury, of second-degree rape, a second-degree sexual offense, a third-degree sexual offense, ⁴¹⁶ and second-degree assault. For the second-degree rape, the appellant was sentenced to a term of imprisonment of 20 years with all but 10 years suspended to be followed by two years of probation. For sentencing purposes, the remaining convictions merged into that for second-degree rape.

On appeal, the appellant raises three contentions, claiming 1. that the State’s evidence was not legally sufficient to support his convictions; 2. that the verdicts of guilty were inconsistent with his acquittal on the charge of a fourth-degree sexual offense; and 3. that Judge Groton erroneously found him guilty of a second-degree sexual offense after earlier having announced that his verdict on that charge was “not guilty.” Legal Sufficiency of the Evidence Although there were convictions for other peripheral sexual offenses, it will be convenient narratively to focus primarily on the conviction for rape. Rape was the core issue at the appellant’s trial and it is for rape that he is serving an effective sentence of ten years imprisonment. What began as a convivial social evening among four acquaintances ultimately, after several hours of reasonably heavy drinking, turned criminal. The situs where the evening’s activities both began and concluded was the small efficiency apartment of Kelly Belay in Ocean City.

On the evening of May 23, 2013, the rape victim, a young woman who had been a friend of Ms. Belay since high school, went to her friend’s apartment to celebrate the victim’s birthday. The two young women initially “hung out, sat on the balcony, [and] had a couple beers.” They were joined in the course of the evening by two young men, the appellant and one Kwamaine Fisher, a friend of Ms. Belay. There had been no prior romantic relationship between the victim and the appellant, but she had seen him “socially” “quite a few times.” The foursome sat on the balcony for “45 minutes to an hour.” They then all walked ⁴¹⁷ across the street to a bar called Pit-N-Pub and stayed there for “maybe about an hour and a half.” While at the pub, the victim consumed “one shot and maybe two beers.” The victim could not recall what the appellant had to drink at the pub, but she did remember that all four of them had “a shot” at midnight. All four of them left the Pit-N-Pub at about 1:00 a.m., went across the street to get some food at a 7-Eleven, and then went back to Ms. Belay’s apartment.

The group “sat around” for another hour or more. The victim decided to go to bed at approximately 2:00 or 2:30 a.m. She went to bed before everyone else because she had to be at work the following morning at 8:00 a.m. She went to bed in the interior room of the efficiency apartment, while the other three remained outside on the balcony.

The victim went to sleep on a “Murphy bed,” “a bed that pulls down out of the wall.” She testified that as she was going to bed, she felt tired and “a little bit” intoxicated. She went to bed in her clothes, the same clothes that she had worn to work that day, black pants and a black shirt. Significantly, she went to bed alone and she went to sleep. In her testimony, Ms. Belay added that throughout the course of the evening, the victim and the appellant were not together as a couple.

She confirmed that she did not believe that anything flirtatious was going on between them. She further testified that it was her impression, before she herself fell asleep, that Kwamaine Fisher and the appellant were not intending to spend the night at her apartment. The appellant specifically told Ms. Belay that he was going to drive home because he was not intoxicated. Approximately two hours after she went to sleep, the victim awoke in the process of being raped.

She remembered “waking up and James was having sex with me.” She was on her back in the bed and her pants had been pulled down to her knees. Her shirt was still on. Her testimony was that the appellant was on top of her, “his penis was in [her] vagina,” and he was “thrusting, like if you were having sex.” When she “woke up and realized ... what he was doing,” she “put ⁴¹⁸ [her] hand on his chest to try to push him off.” When he did not stop, she told him either, “No, I can’t do this,” or “No, this can’t happen.” When she spoke those words, the appellant “stopped,” got up, pulled up his pants, and walked out of the apartment without saying a word. She looked at her cell phone and saw that the time was 4:42 a.m.

The victim immediately “got [her] belongings,” tried unsuccessfully to wake Fisher, who was “passed out” on the floor, and left the apartment in her car. At this point, we note that there is no dispute about the occurrence of the act of sexual intercourse per se. The appellant, in his statement to the police which he does not challenge, acknowledged that he had sexual intercourse with the victim. His defense was that the intercourse was consensual.

He now argues, somewhat self-righteously, that he stopped immediately upon being told to stop by the victim. When asked by the police, however, if the victim had been awake when he first penetrated her, “he advised [the police] that he wasn’t sure if she was awake or not at the time because he hadn’t looked at her eyes to see if they were open.” The appellant also told the police that he did not think he had ejaculated when he hurriedly dressed and left the apartment, prompting the police comment, “which I found unusual.” Saving for the moment our discussion of the consent issue on the rape charge, there is no dispute about the proof of the actus reus of second-degree rape or the actus reus of the necessarily lesser included simple assault. It is only with respect to the proof of the second-degree sexual offense and the third-degree sexual offense that we turn to the victim’s testimony about her semi-conscious memory of what occurred before she came fully awake in the process of being raped. Judge Groton expressly found the victim to be completely credible.

He accepted, as was his factfinding prerogative, not only her fully conscious memory but also her hazier quasi-conscious memory. The victim testified: A. I remember falling asleep on my right side, and I don’t remember him getting in bed. I don’t—I remember him pulling on my left shoulder to turn me over. And I ⁴¹⁹ remember him—I remember him kissing me on the mouth.

I remember him putting his hands under my shirt. I remember him—I remember rolling—trying to roll back over. And I remember him pulling my pants down while I was on my right side. He was behind me.

I remember him trying to have anal sex with me. I remember him pulling on my shoulder a few times hard enough where I had a bruise on my shoulder. And when I woke up was when—I mean, I remember—I remember him trying to put his penis in my mouth. Q. Can you describe how that happened?

A. I had rolled over on my left side. So we would have been facing each other. And I remember him like moving towards the top of the bed so he was—he was lying above me. THE COURT: At what point did these things occur?

THE WITNESS: Before—before I woke up and tried to push him off. THE COURT: Immediately before? Some time before? THE WITNESS: I felt like it was right before.

I mean, between when I went to bed at 2:00, around 2:00, and then when I woke up. THE COURT: Okay. THE WITNESS: I don’t—I don’t know the time—the time frame. [PROSECUTOR]: Did you fully wake up during any of this? A. No. Q. Okay.

So— A. I remember—I remember—I remember it happening. I—it’s hard to—it’s hard to explain. It almost felt like a dream. Q. Okay.

A. I think that’s why I kept trying to roll over. Q. Did you realize what was happening? A. No. ⁴²⁰ Q. So when you say you remember him trying to put his penis [in] your mouth, what exactly do you recall happening? You said—you began to describe that he went to—he scooted up the bed.

A. Right. Q. Can you describe what you remember happening? A. I remember him—my mouth was dosed. I remember him trying to force his penis into my mouth.

And I assume it was because I was so tired and I had been drinking, but I didn’t have the strength—all I could do was try and keep my mouth dosed, my teeth closed, so that’s what I did. Q. And at this time, is this when you described that you were face to face? A. Yes. Q. And when you say him trying to put his penis in your mouth, was there any contact between his penis and your mouth?

A. It touched my teeth. Q. And what did you do at that time? A. I remember rolling over. Q. Do you recall if you went back to sleep after that?

A. I don’t recall. I don’t know if I fell back asleep. I don’t know. Q. And the next thing—is the next thing you remember happening after that waking up to him having sex with you?

A. I—I don’t remember the order of how everything happened. When—when he was—the last thing that happened was him on top of me, having sex with me. I don’t remember what happened before that. (Emphasis supplied).

In terms of the legal sufficiency of the proof of a second-degree sexual offense, fellatio qualifies as a “sexual act,” which is the gravamen of the crime. For the appellant to place his penis inside the lips and in contact with the teeth of ⁴²¹ the victim qualifies as oral-genital contact within the contemplation of the term “fellatio.” Thomas v. State, 301 Md. 294, 321-22 , 483 A.2d 6 (1984). The appellant does not claim that the act of fellatio never occurred or that it was consensual. In terms of the legal sufficiency of the proof of a third-degree sexual offense, the required “sexual contact” for that offense is defined as “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.” Just as the rape necessarily included a second-degree or simple assault, so too, of course, did the second-degree sexual offense and so too did the third-degree sexual offense.

The second-degree assault, an act of offensive touching, was proved three times over. Although the appellant seeks to characterize the victim’s failure to report the rape to the police for a week as exculpatory, a fair reading of the victim’s post-rape behavior could just as readily, if not more readily, be deemed strong evidence that the sexual intercourse had, indeed, been non-consensual. To get up suddenly within two hours of having gone to bed and to drive home at 5:00 a.m. is not a routine reaction for one who is comfortably content with the events of the preceding evening. The victim testified that she was reluctant to go to the police because she was not at all sure whether the appellant’s contact with her, because of her having been asleep and because of her antecedent drinking, even constituted a crime.

She was uncomfortably aware that her own behavior may have placed her in a compromised position. She recounted what had happened to her that very day, however, to Kelly Belay. She also promptly reported what had happened to Kwamaine Fisher. Very persuasive evidence of her state of mind, moreover, was what happened five days after the attack.

She was out with friends at a bar when she unexpectedly saw the appellant. He walked by, turned and looked at her, and kept walking. Feeling as if she were going to have a panic attack, she went outside. An employee of the bar, Mike Bowling, ⁴²² noticed the strange interaction between the two.

When he went outside to smoke a cigarette, he saw the victim “completely distraught” and crying. He spoke to her for 20 to 25 minutes and the victim recounted to him what had happened five days earlier. He went back inside and told the appellant to leave the bar. It was Bowling, moreover, who persuaded the victim to report the incident to the police the next day.

She did. The day after her report to the police, the victim was seen by a forensic nurse examiner who conducted an external examination of her based on her complaint of pain in her genital area. The nurse observed redness to the posterior fourchette area of her genitals. Factfinding Is Not Our Job Before turning to the legal issue of what constitutes proof of non-consent, a comment is in order about the pertinence of certain standard defense arguments we invariably receive on the issue of the legal sufficiency of the evidence in cases of this sort.

In arguing legal sufficiency here, the appellant observes: At the conclusion of direct examination [the victim] testified that she did not consent to any of the sexual contact that occurred between herself and Appellant. Her actions, however, tell a different story. (Emphasis supplied). The appellant goes on to put a decidedly puritanical spin on the behavior of the victim, including such misogynistic, if not indeed mid-Victorian, insinuations as the revelation that she was not wearing any underwear and the disapproving observation that she had been drinking all evening.

For shame! Even accepting, arguendo, such characterizations, however, what difference should it make to us that her actions tell a different story? Is the appellant trying to persuade us of facts as if we were the factfinders? Virtually every crime testified to by multiple witnesses could give rise to half a dozen conceivable scenarios or different stories.

That is why ⁴²³ we have factfinders. We, on the other hand, are not concerned with those other possible stories, because we are not factfinders. The factfinding job has already been done by someone else. All that matters at this juncture is that the factfinding judge believed the victim’s story.

Unless clearly eironeous (a rare phenomenon, indeed), Judge Groton’s findings of fact are the only facts in the case as far as we are concerned. There are no other stories. No other facts or factual scenarios even exist and it is pointless, therefore, to bring them up. In assessing legal sufficiency, we are required to take that version of the evidence most favorable to the prevailing party.

What then is the appellant seeking to do by beguiling us with “different stories” which are immaterial to the only legal issue before us? An appraisal of legal sufficiency is not a proper venue for jury argument. Appellate concern is not with what should be believed, but only with what could be believed. The Absence of Consent The appellant’s core argument on the issue of lack of consent is too clever by half.

Maryland Code, Criminal Law Article, § 3-304(a) describes at least three (and perhaps five) modalities by which one might commit the crime of second-degree rape. (a) Prohibited.—A person may not engage in vaginal intercourse with another: (1) by force, or the threat of force, without the consent of the other; (2) if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; or (3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim. ⁴²⁴ Regardless of which particular modality is employed on a particular occasion, second-degree rape is a single crime with a single penalty provision. Notwithstanding the variation in modalities, the critical denominator is the act of engaging in sexual intercourse with a woman without her consent. The modalities simply represent different ways in which that consent may be found to have been lacking.

Consent may, of course, be lacking because it was expressly denied. Consent may also be lacking because it was implicitly denied, the denial being evidenced by either some degree of resistance or by a rational fear of resisting. By way of significant contrast, consent may also be lacking because the victim, for a variety of reasons, may have been incapable of giving any consent at all or incompetent to give legally cognizable consent. All of these absences of consent, however, are simply variations on a common theme.

In this case, the charging document simply alleged, with respect to the rape, a violation of § 3-304(a). It did not particularize which precise modality or combination of modalities the appellant employed. Indeed, until the 1976 and 1977 legislative sessions codifying the various sexual offenses in Maryland, the crime of rape in Maryland was the common law felony of that name. The statutory codification was essentially for the purpose of graduating the possible penalties for different circumstances under which the rape or other sexual offense was committed.

It was well explained by “Rape and Other Sexual Offense Law Reform in Maryland, 1976-1977,” 7 U. Balt. L.Rev. 151, 152 (1977): Prior to the 1976 session of the Maryland Legislature, the Maryland rape statute was primarily a sentencing law, fixing the penalties without actually defining the crime. Therefore, in order to discern what constituted the crime of rape, an examination of the common law was necessary Common law rape was often defined as “the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim.” However, other courts have defined the ⁴²⁵ crime in more general terms as “unlawful carnal knowledge of a woman without her consent.” Other typically required elements for common law rape were force, absence of the victim’s consent, and penetration. (Emphasis supplied).

In Goldberg v. State, 41 Md.App. 58, 64 , 395 A.2d 1213 (1979), this Court spoke to the same effect. Prior to 1976, the Maryland rape statute was primarily a sentencing law, fixing the penalties without actually defining the crime. The common law definition of rape that has been applied in Maryland is: “the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim.” (Emphasis supplied). See also State v. Rusk, 289 Md. 230 , 424 A.2d 720 (1981).

Basically, the underlying crimes, particularly rape, were substantively unchanged by the codification. The new statutes, to be sure, provided some precise definitions, a process which at the earlier common law would have been left to judicial interpretation. Section 3-301, providing a number of definitions, however, did not undertake to define the word “consent” or the phrase “without the consent of the other.” What is pertinent in such a case of non-statutory definition is § 3-302, which provides: In this subtitle an undefined word or phrase that describes an element of common-law rape retains its judicially determined meaning, except to the extent it is expressly or impliedly changed in this subtitle. (Emphasis supplied).

The appellant’s specific contention is that his conviction for rape was necessarily erroneous because of “the trial judge’s erroneous belief that lack of consent was not a required element of these offenses in this case.” That is a bold charge and we do not remotely find any merit in it. It may nonetheless be a profitable exercise to figure out precisely how the appellant could have arrived at such a conclusion. ⁴²⁶ In the course of closing argument in this non jury trial, Judge Groton, in various exchanges with counsel, made it unmistakably clear that his specific finding was that the victim was “physically helpless” by virtue of “being asleep.” “She was asleep when he began.” “I’m basing my decision on the fact that she was asleep.” “[WJhen the sexual intercourse occurred ... when it started, she was asleep.” The judge and both of the lawyers were walking through the reviewing process together, looking at all of the statutory provisions and opining as to which modalities fit the case and which did not. In one exchange, during closing argument, between defense counsel and Judge Groton, the discussion focused in on which of § 3-304’s (the second-degree rape statute) five modalities for establishing non-consent would best fit the facts of this case. Subsection (a)(3) could immediately be eliminated as inapplicable, dealing with a victim “under the age of 14 years.” The first of subsection (a)(2)’s three victim characterizations— that of being a “mentally defective individual”—was also, by definition, eliminated.

Three plausibly eligible modalities remained: [1.] (a)(1) by force, or the threat of force, without the consent of the other; [2.] (a)(2) if the victim is ... a mentally incapacitated individual; [3.] (a)(2) if the victim is ... a physically helpless individual[.] The discussion involved a comparison of those three closely related situations, all producing a functionally similar result, to wit, the absence of consent. We note again that these are not three different crimes. They are simply three different but closely related modalities for committing the same crime. The court was discussing the statutory definition of second-degree rape.

Specifically, the court was contrasting (a)(1) with the special conditions or statuses of a victim dealt with in (a)(2). [Section] 3-304 is rape in the second degree: A person may not engage in vaginal intercourse with another, number ⁴²⁷ one—a, number one, by force, or threat of force, without the consent of the other. Then you go on to number two: If the victim is mental ly—is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is mentally defective, which we don’t have, mentally incapacitated or physically helpless. And what I’m saying is, as to subsection 2, mentally incapacitated or physically helpless, if, in fact—my interpretation is that sleep would cause a person to be mentally incapacitated or physically helpless, and, therefore, he’s in violation of (a)(2), having nothing to do with consent. (Emphasis supplied). “... having nothing to do with consent.” Those are, alas, six unfortunate words—but unfortunate only in the sense that they have generated such perplexing appellate mischief.

There was nothing wrong with the verdict. Judge Groton found, with solid support in the evidence, that the victim was asleep when the appellant engaged in sexual intercourse with her. As will be discussed infra, to be asleep is ipso facto to be “physically helpless.” In assessing sexual intercourse with a physically helpless individual, the absence of consent is automatic, as a matter of law, and does not have to be redundantly proved a second time over. The appellant does not challenge the efficacy of the evidence to support the verdict.

The evidence established that the appellant engaged in sexual intercourse with the victim without her consent. That is what the judge found the appellant guilty of having done. The appellant complains only about the words the judge used in discussing the crime. Due process requires that the element of lack of consent actually be proved.

It is not concerned with how the process of proving it is articulated. The appellant essentially is complaining that the judge did not articulate his reasoning more artfully. When a judge renders a verdict in a bench trial, it is not like taking a guilty plea or taking a waiver of a jury trial. ⁴²⁸ There are no prescribed drills that the judge must perform on the face of the record. On review, we are concerned with what the judge actually did.

We are not obsessed with the words he used to describe what he did. Due process requires that the element of lack of consent actually be proved by legally sufficient evidence. It is not concerned with how the process of proving it is articulated. Even in terms of the words used, moreover, the appellant’s argument collapses once we take a healthy step back and look at the totality of the context in which the words were uttered.

The appellant has grabbed six words out of a larger context and has ignored the context. The context was a discussion between court and counsel that had nothing to do with whether the victim had somehow consented to sexual intercourse with the appellant. The discussion concerned only the academic problem of selecting the most apt of the three possible modalities. Judge Groton specifically was contrasting subsection (a)(1) with subsection (a)(2).

Subsection (a)(1)—“by force, or the threat of force, without consent of the other”—deals with an act of sexual intercourse committed on a victim who is both conscious and competent. Such a victim must make a choice: ‘Tes, I will” or “No, I won’t.” The very reason that the elements of “force” or “threat of force” are a part of (a)(1), but not a part of (a)(2) or (a)(3), is that in the case of a conscious and competent victim, mere passivity on the victim’s part will not establish the absence of consent. The law looks for express negation or implicit negation as evidenced by some degree of physical resistance or an explanation of why the will to resist was overcome by force or fear of harm. That is the lesson of such cases as Hazel v. State, 221 Md. 464 , 157 A.2d 922 (1960), and State v. Rusk, 289 Md. 230 , 424 A.2d 720 (1981).

The entire factual controversy over degree of resistance is something that arises under (a)(1) but that the court does not have to bother with under (a)(2). When (a)(2) or (a)(3) deal with legally incompetent or unconscious victims, on the other hand, the lack of consent ⁴²⁹ does not have to be established independently by showing either resistance or fear of resistance but is automatically established, as a matter of law, by the status of the victim. This is a significant evidentiary difference when the prosecutor sets out to prove a case of rape. Must the lack of consent be proved independently or has it already been proved automatically by virtue of the State’s having proved something else which is the equivalent of lack of consent?

Under (a)(2), in contrast to (a)(1), a victim who is “mentally defective,” “mentally incapacitated,” or “physically helpless” need not establish the lack of consent by resisting. To that not insignificant extent, (a)(2), indeed, has “nothing to do with consent.” The proof of lack of consent has not been obviated; it has rather been finessed. This is all that Judge Groton was talking about with his six-word observation. He was referring to independent proof of lack of consent required under (a)(1) but not required under (a)(2).

Under (a)(2), one does not have to prove the absence of consent independently because it has already been proved automatically. The three classes of victim dealt with in (a)(2) are incapable of consenting. They, therefore, do not have to resist. Under (a)(1) the proof of lack of consent must be factually ad hoc; under (a)(2) it is categorical.

That is a significant difference. The State is relieved from having to prove directly what it has already proved indirectly. Unlike the appellant, we do not look at the six-word phrase he obsesses over in a vacuum. We look at the obvious intendment of those words in full context.

We hold that the Due Process Clause has not been undermined and the convictions need not be reversed because of any failure of proof of the lack of consent. A Reflection As we emerge from what seems to have been more of a Platonic dialogue than a measurement of legal sufficiency, it occurs to us that we have been presiding over a furious battle over nothing but the choice of words. Appellant’s counsel and the trial court at times used the same words, but in different ways, and they ended up talking across each other. The ⁴³⁰ problem was with how they talked about the “lack of consent.” In its simplest conceptualization, it is a binary or dualistic choice between “Yes, I will” or “No, I won’t.” The proof of such a simple choice is subject to the normal vicissitudes of production and persuasion.

The complicating factor, of course, is that the lack of consent embraces not only the obvious negative choice but the more elusive and less obvious failure to choose, in the case of rape, because of the inability or incompetence to choose. This latter aspect of lack of consent is proved in a very different way, automatically by virtue of having proved something else. When the judge said that subsection (a)(2) did not involve the lack of consent, he meant only that proof under (a)(2) did not involve a factual issue of the victim making a binary choice between “Yes, I will” and “No, I won’t.” Lack of consent may mean not only a negative response but also a non-response, and the two are proved in different ways. Under (a)(2) consent does not have to be proved independently because it is implicit in the (a)(2) conditions.

Defense counsel now argues, however, that the judge erroneously ruled that the crime of rape does not have as one of its elements the absence of consent. In reality, the two were simply using the same words to mean different things, one of them referring to the very existence of non-consent while the other was referring only to the method of proving nonconsent. It confirms our long-standing belief that a large percentage of legal problems are simply linguistic problems. Extending the Rationale The appellant has actually raised this contention charging that the trial judge erroneously failed to appreciate the need for a finding of lack of consent and, therefore, erroneously failed to find the lack of consent with respect to the second-degree sexual offense and the third-degree sexual offense as well as with respect to the second-degree rape.

Our answer to the contention in these broader applications, as well as our analysis arriving at our answer, is exactly the same in the cases of a second-degree sexual offense and a third-degree sexual offense as it is in the case of second-degree rape. ⁴³¹ Just as second-degree rape distinguishes between the conscious and competent victim in § 3-304(a)(1), where lack of consent had to be established as a matter of fact, and the unconscious or legally incompetent victim in § 3-304(a)(2), where proof of the very status of the victim establishes lack of consent as a matter of law, a second-degree sexual offense makes the same verbatim distinction as it distinguishes § 3-306(a)(1) from § 3-306(a)(2). The only distinction between the two crimes is the distinction between a “sexual act” and “vaginal intercourse.” Their respective modalities for finding non-consent are the same. In not quite so verbatim terms, a third-degree sexual offense distinguishes between the conscious and competent victim in § 3-307(a)(1) and the unconscious or legally incompetent victim in § 3-307(a)(2). Only in the first case must the lack of consent be directly proved as a matter of fact.

In the second case, lack of consent is once again necessarily implicit in the very status of the victim. It does not have to be proved directly not because it is not required but only because it is implicit in the victim’s condition. A Sleeping Victim Is A Non-Consenting Victim As the best explanation of why a sleeping victim is necessarily a rape victim, Judge Groton settled on § 3-304(a)(2) and, within that subsection, on a “physically helpless individual.” Section 3-301(d) defines such a victim. (d) Physically helpless individual.—“Physically helpless individual” means an individual who: (1) is unconscious; or (2) (i) does not consent to vaginal intercourse, a sexual act, or sexual contact; and (ii) is physically unable to resist, or communicate unwillingness to submit to, vaginal intercourse, a sexual act, or sexual contact.

(Emphasis supplied). The common law of rape has long recognized that engaging in sexual intercourse with a woman who is asleep is a form of ⁴³² rape. In Lewis Hochheimer, Crimes And Criminal Procedures, § 429 “Rape,” p. 456 (2d ed. 1904), it is said: Carnal knowledge of a woman is said to be by force and against her consent, if, to the knowledge of the accused, she was in such an imbecile or idiotic state of mind, or so drunken, or unconscious from sleep, or affected by drugs, as to be unable to assent. (Emphasis supplied).

In 3 Wharton’s Criminal Law, § 289 “Incapacity to Consent,” p. 38 (Charles E. Torcia, ed., 14th ed. 1980), it is similarly stated: A female is obviously incapable of consenting to sexual intercourse when she is unconscious or asleep. (Emphasis supplied). Although dealing with incompetence due to drunkenness rather than to being asleep, this Court did hold in Cranford v. State, 36 Md.App. 393, 400 , 373 A.2d 984 (1977): It is well settled that unlawful sexual intercourse with a female person without her consent constitutes the common-law felony of rape. It is also settled that unlawful sexual intercourse with a woman who is incapable of giving or withholding consent is rape.

(Emphasis supplied). With respect to the absence of consent by a sleeping victim, the national case law is in essential agreement. King v. State, 978 P.2d 1278, 1280 (Alaska App.1999); Harvey v. State, 53 Ark. 425 , 14 S.W. 645, 646 (1890); Davis v. State, 538 So.2d 515, 516 (Fla.App.1989); Brown v. State, 174 Ga.App. 913 , 331 S.E.2d 891, 892 (1985) (“sexual intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from use of drugs or other cause, or sleep, is rape”); Boone v. Commonwealth, 155 S.W.3d 727, 731 (Ky.App.2004) (“Although sleep may not always be a fully unconscious condition, ‘[i]t is axiomatic that sleep is the antithesis of awareness. It is that periodic state of rest in which consciousness is suspended.

Whether induced by drug, or ⁴³³ achieved by normal processes, being in the state of sleep renders one unable to make a conscious choice.’ ”); People v. Perry, 172 Mich.App. 609 , 432 N.W.2d 377, 382 (1988); State v. Welch, 191 Mo. 179 , 89 S.W. 945, 947 (1905); State v. Rush, 278 N.J.Super. 44 , 650 A.2d 373, 375-76 (App.Div.1994) (“[A] person who is actually asleep is incapable of fleeing or communicating unwillingness to act.”); State v. Moorman, 320 N.C. 387 , 358 S.E.2d 502, 505 (1987) (“a sleeping person is a physically helpless person”); In re Childers, 310 P.2d 776, 777 (Okla.Crim.App.1957) (“[A] person who is unconscious by reason of intoxication, drugs, or sleep, is incapable of exercising any judgment in any means whatsoever.”); State v. Puapuaga, 54 Wash.App. 857 , 776 P.2d 170, 172 (1989) (“The state of sleep seems to be universally understood as unconsciousness or physical inability to communicate unwillingness.”). Sleep As A Variety Of Unconsciousness The appellant seeks to parry § 3-301(d)’s definition of a “physically helpless individual” as “an individual who is unconscious” by pointing to an arguably hypertechnical distinction between unconsciousness and sleep. As far as the absence of consent that is implied in the case of a victim who is unable to choose between consenting and not consenting, however, it is a distinction without a difference. Unconsciousness is a broader category than sleep, but it includes sleep.

One might well be unconscious for reasons other than being asleep: a brain tumor, a severe concussion, extreme intoxication, anesthesia, narcolepsy, or a fainting spell. The broader category nonetheless includes the state of being asleep. For the appellant to assert that all who are unconscious are not asleep by no means yields his desired conclusion that all who are asleep are not unconscious. A sleeping victim is not excluded from § 3-301 (d)’s definition of a “physically helpless individual.” In his reply brief, the appellant attempts to draw a critical distinction between unconsciousness and sleep.

The State’s attempt, on appeal, to equate being asleep with being unconscious fails to acknowledge a significant differ ⁴³⁴ ence between the two. A person who is unconscious is unable to respond to stimuli like sound or touch such as being shaken; a person who is asleep will respond to such sensory stimuli. See, e.g., http://nlm.nih.gov/medlineplus/ ency/article/000022.htm (“Being asleep is not the same thing as being unconscious. A sleeping person will respond to loud noises or gentle shaking—an unconscious person will not.”).

A person who is unconscious cannot consent; a person who is asleep can wake up and consent. (Emphasis supplied). Section 3-304(a)(2)’s protection of one who is a “physically helpless individual” by virtue of being “unconscious” applies to all forms of unconsciousness, including sleep. The critical common denominator is that such an individual is unaware of what is then happening or is about to happen sexually.

Such an individual, while in that state of unconsciousness, is unable to make a choice between consenting and not consenting. To draw a meaningless distinction between how difficult or easy it might be to rouse the victim from the state of unconsciousness after the criminal sexual violation had already occurred is beside the point. The critical moment of consent vel non occurs before the victim is awake, not afterward. To say, as the appellant does, that one who is merely asleep, as opposed to one who might be unconscious for other reasons, can more easily “wake up and consent” has no remote pertinence to anything we have been talking about.

What matters is that one cannot consent before waking up. Being asleep qualifies as an instance of being unconscious. Were the Verdicts Inconsistent? In this non jury trial, Judge Groton rendered five verdicts, four of guilty and one of not guilty.

In his second contention, the appellant claims that the mixed verdicts of guilty and not guilty were fatally inconsistent. The appellant was convicted of second-degree rape. In the most simplistic terms, that is an act of vaginal intercourse with a woman without her consent. The appellant was, secondly, ⁴³⁵ convicted of a second-degree sexual offense.

In simplistic terms, that is a sexual act (in this case, fellatio), without the victim’s consent. The appellant was, thirdly, convicted of a third-degree sexual offense. Simplistically, that is sexual contact with another person without that person’s consent. The absence of consent, in various permutations, was a factor in all three of those crimes. 1 The appellant was, by contrast, acquitted of a sexual offense in the fourth degree.

In simplistic terms, that is sexual contact with another without that person’s consent. The appellant contends that the acquittal of the fourth-degree sexual offense necessarily established that the State had failed to prove the absence of consent on the part of the victim and that such a finding by the trial judge was incompatible with the three convictions, in each of which the absence of consent was a necessary element. As we address this claim of verdict inconsistency, some legal background is necessary to establish an intelligible context. A Mere Secondary Contention of Awesome Complexity Although a vexing problem throughout the common law world, inconsistency between verdicts is not a matter of constitutional dimension.

United States v. Powell, 469 U.S. 57, 65 , 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984); Harris v. Rivera, 454 U.S. 339, 344-48 , 102 S.Ct. 460 , 70 L.Ed.2d 530 (1981). At least since 1932, however, the overwhelming majority of American states has followed the lead of the Supreme Court. 2 There is a wide variety of possible inconsistencies. There is the relatively rare problem of an inconsistency between two ⁴³⁶ convictions. There is the far more prevalent problem of an inconsistency between a conviction and an acquittal.

There may be an inconsistency between verdicts on different counts in the same indictment or on different indictments against a single defendant in a single trial. Although a rarer occurrence in the case law, there may be inconsistent verdicts against different co-defendants in a trial against multiple defendants. There is a vast difference between inconsistent verdicts rendered by a judge in a non jury trial and inconsistent verdicts rendered by a jury. There is also the little explored rarity of inconsistency between one verdict rendered by a jury and another verdict rendered by a judge in a mixed judge/jury trial.

See, for instance, Galloway v. State, 371 Md. 379, 401 , 809 A.2d 653 (2002). There is a significant difference (not touched on in this opinion) between inconsistent verdicts in civil trials and inconsistent verdicts in criminal trials. There is also a difference enjoying more recent attention between what, in Maryland at least, is referred to as legal inconsistency and what is referred to as factual inconsistency. In short, inconsistency between verdicts is by no means a simple or one-dimensional problem.

It is a collection of what can be very different problems. “An Ounce of Prevention ...” When the State unexpectedly loses a hard earned victory at the eleventh hour, the most wasteful and the most unnecessary cause is that of inconsistency between the verdicts. In the flush of apparent success at the end of a trial, it is all too easy to allow impatience and untidiness to compromise the mopping up operation. Although lesser charges may seem to be little more than superfluous clutter, every “i” must carefully be dotted and every “t” must carefully be crossed before the victory celebration is permitted to begin. Following a conviction for a greater inclusive offense, e.g., not guilty verdicts should never be rendered on lesser included offenses simply to clear the deck.

If, as Emerson tells us, “a foolish consistency is the hobgoblin of little minds,” a careless inconsistency is the hobgoblin of impatient minds. ⁴³⁷ A Common Law Provenance The legal rules and precepts for handling inconsistent verdicts in Maryland, as well as nationally, are of common law origin. There are neither statutes nor rules of court governing the subject. It is all a matter of slowly evolving case law. In Price v. State, 405 Md. 10, 18 , 949 A.2d 619 (2008), Judge Eldridge discussed the source of Maryland’s inconsistent verdict law: In Maryland, the principles concerning inconsistent verdicts have judicially developed over time as part of this State’s common law.

Unlike several other jurisdictions, there are no Maryland statutes or promulgated procedural rules which relate to inconsistent verdicts generally or relate to specific types of inconsistent verdicts. Moreover, the Maryland common law principles governing inconsistent verdicts are themselves confusing and somewhat inconsistent. (Emphasis supplied). Over the years, however, Maryland did to a significant extent follow the lead of the Supreme Court as inconsistent verdict law has been evolving.

Inconsistent Verdicts of Conviction As this Court noted in Tate v. State, 176 Md.App. 365, 382 , 933 A.2d 447 (2007) (“Tate I ”), remanded for reconsideration in light of Price v. State, 405 Md. 10 , 949 A.2d 619 (2008), but reaffirmed by Tate v. State, 182 Md.App. 114 , 957 A.2d 640 , cert. denied, 406 Md. 747 , 962 A.2d 373 (2008) (“Tate II ”), “Traditionally, a distinction has always been made between 1) two inconsistent convictions and 2) a conviction and an inconsistent acquittal.” The relatively rare problem of inconsistent convictions, whether emanating from a jury alone or from a judge alone or from a combination of the two, is a self-contained phenomenon that may here be quickly noted and conveniently set to one side. Even to discuss inconsistency between convictions when dealing with the very different problem of an inconsistency between a conviction and an ⁴³⁸ acquittal is to compare apples with oranges, a practice sedulously to be avoided. Inconsistency between convictions has always been recognized as an error that calls for some sort of correction. In now fashionable Maryland terms, moreover, it is a legal inconsistency rather than a less virulent factual inconsistency.

It occurs when, in a single trial, one of the convictions necessarily establishes an element which is incompatible with an element necessary to the other conviction. The two contradictory elements cannot coexist. A classic example of inconsistent convictions is the early Maryland case of Heinze v. State, 184 Md. 613 , 42 A.2d 128 (1945). Each of two defendants was charged with both the larceny of $20 and receiving $20 of stolen goods.

Notwithstanding an ultimately unsuccessful effort by the clerk of the court to correct the jury’s verdict, the actual verdict rendered by the jury foreman was that each defendant was guilty on both counts. In the days before Maryland’s 1978 Consolidated Theft Law, however, a defendant could not for the same act be both a thief and a receiver of stolen goods. Although ultimately finding that the defendants, under the special circumstances of the case, had suffered no prejudice, the statement of the Court of Appeals was clear as to the legal incompatibility of the two such guilty verdicts. 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 thief, and hence the defendant could not be guilty on both counts. 184 Md. at 617 , 42 A.2d 128 (emphasis supplied). See also Shell v. State, 307 Md. 46, 55 , 512 A.2d 358 (1986); Mack v. State, 300 Md. 583, 601 , 479 A.2d 1344 (1984); Henry v. State, 273 Md. 131, 137-38 , 328 A.2d 293 (1974); Johnson v. State, ⁴³⁹ 238 Md. 528, 541 , 209 A.2d 765 (1965); 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); Leet v. State, 203 Md. 285, 293 , 100 A.2d 789 (1953); Tate I, 176 Md.App. at 382 , 933 A.2d 447 ; Jenkins v. State, 59 Md.App. 612, 618 , 477 A.2d 791 (1984). Unlike an inconsistency between a conviction and an acquittal, an inconsistency between convictions does not automatically call for a reversal. In Tate I, 176 Md.App. at 383 , 933 A.2d 447 , this Court explained the possibly non-fatal consequences of such an inconsistency.

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)[; Jenkins v. State, 59 Md.App. 612, 621-22 , 477 A.2d 791 (1984) ]. (Emphasis supplied).

At this point in our larger analysis we have paused to look at inconsistent convictions in order to make the point that verdict inconsistency is a variegated subject and not an undifferentiated whole. Caution should be employed, therefore, not to draw glib or inapt analogies between phenomena that are not analogous. Inconsistency between convictions is a subject unto itself. As was pointed out by Tate I, 176 Md.App. at 384-85 , 933 A.2d 447 : ⁴⁴⁰ 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 in the first context can be treacherous if uncritically misapplied in the second.

Such a doctrinal transplant does not always take. (Emphasis supplied). Inconsistency Between A Conviction And An Acquittal It is the inconsistency between a verdict of conviction and, on another count or indictment against the same defendant, a verdict of acquittal that has commanded the lion’s share of attention. It is in this area that we draw a distinction between the sources of the inconsistent verdicts.

Was the source a jury? Was the source a judge in a non jury trial? Or was the source a combination of the two in a mixed trial scenario? That third possibility we can dispose of briefly.

A Mixed Verdict By Judge and Jury The law has traditionally been far more tolerant of inconsistent verdicts handed down by a jury than of similar inconsis ⁴⁴¹ tency at the hands of a judge alone. For all intents and purposes, inconsistent verdicts rendered by the combination of judge and jury are held to the same rigorous standard as that regulating inconsistent verdicts rendered by the judge alone. Just as the judge is required to make his verdicts logically consistent with each other, the judge is similarly required, in a mixed trial scenario, to make his verdict conform to whatever verdict the jury has rendered. The obligation to be consistent is a one-way street.

The 4-3 decision of the Court of Appeals in Galloway v. State, 371 Md. 379 , 809 A.2d 653 (2002), is a case in point. It also illustrates why a mixed trial modality is sometimes necessary, or at least desirable. Galloway was charged in a nine-count indictment. Counts one through seven charged a number of substantive offenses.

Counts eight and nine charged the possession of a firearm after having been convicted previously of a crime. Galloway expressed concern over the possible prejudicial impact on the jury of his prior criminal record, a necessary element of counts eight and nine, on the remaining seven charges. With the acquiescence of Galloway, the trial judge determined that the jury would hear evidence on and would consider only the first seven counts. The trial judge, out of the presence of the jury, would hear the evidence about the prior criminal record and would then render her own verdict on counts eight and nine.

The surprise came at verdict time as the jury returned verdicts of not guilty on counts one through seven even as the judge found Galloway guilty on counts eight and nine. Galloway appealed those convictions on the ground that his convictions by the judge for possessing a firearm while having a criminal record were inconsistent with his acquittal by the jury on count seven on the charge of carrying a handgun. There was no question that the firearm at issue in counts eight and nine was a handgun. Judge Cathell’s opinion for the Court of Appeals had no difficulty in finding an inconsistency. [Tjhere is no dispute as to whether the verdicts were inconsistent.

They are dearly inconsistent. At a given ⁴⁴² point in time, the jury held that appellant did not possess the handgun. The trial court necessarily held that, at the same given point in time, appellant, a felon, was in possession of the same handgun. 371 Md. at 400 , 809 A.2d 653 (emphasis supplied). The holding of the Court of Appeals was clear.

It makes no difference in criminal cases what the procedure is that results in the mingling of court and jury verdicts; inconsistent verdicts based on identical facts, are not permitted unless the inconsistency is solely a jury inconsistency. 371 Md. at 401 , 809 A.2d 653 (emphasis supplied). Where the court is involved in any way, either in verdicts rendered by the court alone or in the combined verdicts of court and jury, inconsistent verdicts will not be permitted. Maryland’s appellate courts have disapproved inconsistent verdicts in criminal cases where the inconsistency involved court action. 371 Md. at 400 , 809 A.2d 653 (emphasis supplied). With inconsistent verdicts by a judge and jury combined being subsumed into inconsistent verdicts rendered by a judge alone, the total picture becomes a bit less cluttered.

We are dealing with either 1) inconsistency by a jury or 2) inconsistency charged to a judge. Inconsistent Verdicts Of Guilty And Not Guilty By A Jury The developing law with respect to inconsistency between verdicts has been predominantly, indeed almost exclusively, concerned with a conviction and an inconsistent acquittal at the hands of a jury. 3 The starting point was a generally recognized common law principle that inconsistent verdicts ⁴⁴³ would not be permitted. The entire subject of inconsistent verdicts first achieved national prominence in 1925 as federal courts, soon followed by state courts, carved out a massive exception to the former prohibition for an inconsistency between a conviction and an acquittal both rendered by a jury. Instead of being strictly forbidden, inconsistency at the hands of a jury became almost universally tolerated.

Contrary to popular understanding, the pioneering opinion was not that of Justice Holmes in Dunn v. United States, 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932) in 1932, but that of Judge Learned Hand 4 for the Second Circuit Court of Appeals in Steckler v. United States, 7 F.2d 59 (2d Cir.1925), in 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. 7 F.2d at 60 (emphasis supplied).

Judge Hand recognized, moreover, that the court was plowing new ground. 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. (emphasis supplied).

Judge Hand explained that the pertinent question in cases in which inconsistent verdicts of guilty and not guilty are ⁴⁴⁴ 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 jury unanimity, the not guilty verdicts do not cast sufficient doubt upon the jury’s return of the guilty verdict to justify