It is a collection of very different problems." Travis v. State, 218 Md. App. at 436, 98 A.3d 281. As our analysis proceeds, it is as important to take careful notice of what this case is not about as it is to note what it is about.
In an unreported opinion dated September 22, 2015, the Court of Special Appeals affirmed the circuit court's judgments and held that, by failing to object before the jury hearkened to the verdicts, Givens waived any issue as to the allegedly inconsistent verdicts. The Court of Special Appeals stated that, “[a]lthough only two other members of the Court [of Appeals] joined [the] section of Judge Harrell's concurring opinion[ in Price that involved waiver], this Court has treated that opinion as though it is authoritative on the issue of preservation and waiver” in Tate II, 182 Md.App. 114, 957 A.2d 640, Hicks v. State, 189 Md.App. 112, 984 A.2d 246 (2009), and Travis v. State, 218 Md.App. 410, 98 A.3d 281 (2014). The Court of Special Appeals explained:
Citing Givens, 449 Md. at 447-48, which set forth the requirement for objecting to inconsistent jury verdicts, the State contends that the purpose of the preservation requirement—to provide the trial court the opportunity to correct any errors—applies both to jury trials and bench trials. In addition, the State points to Travis v. State, 218 Md. App. 410, 451-52 (2014), as an example of a bench trial that applied the "iron clad preservation requirement" to an inconsistent verdict in a bench trial. As to D.R.'s contention that the charges are inconsistent, the State agrees with D.R. that the court's finding of not involved in the count of use of a firearm in the commission of a crime of violence was legally inconsistent with the finding of his involvement in the first-degree assault.
According to appellant, these convictions were impermissibly inconsistent. The State, adopting the reasoning of Judge Harrell's concurring opinion in Price v. State, 405 Md. 10, 34-44 (2008), which we adopted in Travis v. State, 218 Md. App. 410, 450 (2014), contends that this issue is not preserved for appellate review. As mentioned earlier, the jury acquitted appellant of two handgun related counts (i.e., wearing, carrying or transporting a handgun and use of a firearm in the commission of a crime of violence).
When second-degree rape or third-degree sexual offense involving a legally incompetent victim is charged pursuant to Crim. Law §§ 3–304(a)(2) or 3–307(a)(2), "lack of consent 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." SeeTravis v. State , 218 Md.App. 410, 428–29, 98 A.3d 281, 291–92 (2014). The three classes of individuals in Crim. Law §§ 3–304(a)(2) and 3–307(a)(2) —mentally defective individuals, mentally incapacitated individuals, and physically helpless individuals—"are incapable of consenting[,]" and thus, "[t]he State is relieved from having to prove directly what it has already proved indirectly."
Gomez contends that, due to those disparate elements, the two offenses do not meet the required evidence test. In support, Gomez relies almost exclusively on Travis v. State, 218 Md.App. 410 (2014), a case in which this Court held that a defendant's acquittal on a charge of fourth-degree sexual offense was not inconsistent with his convictions of second-degree rape and second-degree sexual offense. Id. at 464-66
"Appellate concern is not with what should be believed, but only with what could be believed." Travis v. State, 218 Md.App. 410, 423 (2014).
Preservation Initially, we note that, in Travis v. State, 218 Md.App. 410 (2014), as an alternative holding, we concluded that the contemporaneous objection rule applied to a claim of inconsistent verdicts, even in a bench trial. Id. at 468-72; see Givens v. State, 449 Md. 433, 463 (2016) (observing that, in Travis, we held "that a defendant waived an issue as to allegedly inconsistent verdicts by failing to timely object after a trial court stated the verdicts at the conclusion of a bench trial").
McNeal v. State, 426 Md. 455, 458 (2012). However, there is a requirement to preserve the issue of legal inconsistency in the trial court, before the jury is discharged. Givens v. State, 449 Md. 433, 472-73 (2016); Travis v. State, 218 Md. App. 410, 452 (2014). The reason to enforce a preservation requirement in this context is because the jury "may render a legally inconsistent verdict to show lenity to the defendant."
When second-degree rape involving a legally incompetent victim is charged pursuant to CR §3-304(a)(2), "lack of consent 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." Travis v. State, 218 Md. App. 410, 428-29 (2014). Third-degree sexual offense is proscribed by CR §3-307: