            REPORTED

IN THE COURT OF SPECIAL APPEALS

          OF MARYLAND


              No. 2100


       September Term, 2012




      BRANDON WALLACE

                 v.

     STATE OF MARYLAND




    Wright,
    Nazarian,
    Davis, Arrie. W.
      (Retired, Specially Assigned),

                         JJ.


       Opinion by Nazarian, J.


      Filed: August 27, 2014
       Matthew Womack was beaten and robbed by two men in the early morning hours of

November 4, 2011. Minutes before, he had engaged in a brief discussion with Brandon

Bernard Wallace. Shortly after the robbery, Mr. Wallace was seen at two convenience stores

where Mr. Womack’s stolen credit card was used. After Mr. Womack identified Mr.

Wallace as one of his assailants from a photo array, Mr. Wallace was arrested, charged, and

convicted in the Circuit Court for Prince George’s County of robbery and related crimes, but

was ultimately acquitted of second-degree assault. Mr. Wallace appeals his conviction,

contending that insufficient evidence supported the robbery conviction and that the circuit

court erred by failing to suppress an impermissibly suggestive extrajudicial identification, by

allowing an improper prosecutorial comment, and by accepting inconsistent jury verdicts.

We find no merit in his first three contentions and affirm his convictions for theft under

$1,000 and credit card theft. Because we conclude that the circuit court erred by accepting

legally inconsistent jury verdicts, however, we vacate Mr. Wallace’s robbery conviction and

remand for further proceedings consistent with this opinion, and in the process fill a gap in

the evolving jurisprudence of legally inconsistent verdicts.

                                    I. BACKGROUND

       Mr. Womack caught a bus from work at 11:30 p.m. on November 3, 2011, and arrived

at the Oxon Hill Road bus stop in Prince George’s County between midnight and 1:00 a.m.

on November 4. Upon his arrival, he was approached by Mr. Wallace. This was not,

however, their first meeting—they had met and spoken two weeks before at that same bus

stop, after Mr. Wallace tried to sell Mr. Womack a head set for three dollars.
       Their discussion on November 4 lasted only a few minutes. While they spoke, two

of Mr. Wallace’s friends approached, and Mr. Womack became uneasy when one friend

“made a look towards” him. He decided it was best that he leave, and as he left, Mr. Wallace

inquired about the direction he was headed. Mr. Womack told him he was going north on

Livingston Road, but instead went south, toward his home.

       The lighting on Livingston Road dwindled as Mr. Womack traveled toward Stratwood

Avenue, so he attempted to cross the street to a better-lit area. But as he looked for

oncoming cars, two men came up behind him, each wearing dark hooded sweatshirts and ski

masks that covered their mouths and noses but left their eyes exposed.1 The two assailants

first hit Mr. Womack from behind, then punched him in the face and knocked him to the

ground. Then they flashed what appeared to be a shotgun and demanded Mr. Womack’s

money and possessions in urgently vulgar terms. In all, they took his cell phone and charger,

security license, an ATM card, an ID holder, a pair of gloves, and a Baltimore Ravens jacket.

       Mr. Womack phoned the police and accompanied them to the police station to provide

an initial statement. Upon returning home, he contacted his bank to cancel his card, but was

told that somebody used it that morning at several locations.

       On November 22, 2011, Mr. Womack was contacted by Detective Jeffrey Konya, who

requested a meeting to show Mr. Womack a photo array prepared by Detective Paul

Schweinsburg. The two detectives visited Mr. Womack’s home later that day and, before


       1
        At trial, Mr. Womack described one of the assailants as six foot and approximately
165 to 200 pounds, and the other as six feet two inches and between 175 and 200 pounds.

                                             2
showing him the array, informed him that they had found the culprit. Mr. Womack covered

the lower halves of the faces to see the men as if they were wearing the half-mask his

assailants wore and selected picture number five—the photo of Mr. Wallace. When asked

why he selected this photo, he explained:

              Because when I was getting off the Metro bus, I was stopped
              and . . . the guy starting talking to me for at least five minutes.
              Then I walked away. Dude asked me which way I was going to
              go home. So I remember that. I had some type of feeling that
              something was going to happen to me that night because why
              would somebody ask you which way you was going to go home.
              And I felt some type of way about it. Then five minutes later,
              bam, I get robbed. And I remember that conversation I had with
              him a couple weeks ago when he had said something to me prior
              to that.

       The State obtained Mr. Womack’s bank records, which showed that his stolen card

was used multiple times shortly after the robbery. The bank records showed that the card was

used first for a $30.98 purchase at 5:01 a.m. at an Exxon on Old Branch Avenue in Camp

Springs, but a corresponding receipt indicated that his card had been used there to make a

$30.98 purchase at 1:01 a.m. The records also showed that the card was used at 5:09 a.m.

at the 7-Eleven adjacent to the Exxon, but no receipt was produced. Surveillance stills

produced by the State showed Mr. Wallace at the 7-Eleven that morning from 1:07 through

1:10 a.m., however. These stills, along with stills from the Exxon,2 showed Mr. Wallace




       2
        The timestamp on the Exxon surveillance stills showed the man inside the store from
12:20 through 12:23 a.m.

                                              3
wearing a dark hooded sweatshirt at each establishment in the early morning hours of

November 4.3

       Before trial, Mr. Wallace moved to suppress the extrajudicial identification provided

by Mr. Womack. The circuit court held a suppression hearing on April 13, 2012, and denied

the motion. Following a jury trial on August 23 and 27, 2012, Mr. Wallace was convicted

of robbery, theft under $1,000, and credit card theft. The jury acquitted him of robbery with

a deadly weapon and second-degree assault. The trial court sentenced Mr. Wallace on the

robbery charge to fifteen years, with all but eight years suspended, to be followed by five

years of supervised probation. The remaining offenses were merged for sentencing purposes.

                                    II. DISCUSSION

       Mr. Wallace’s brief lists five questions that we have revised to four: 4

               1.    Did the suppression hearing court err by denying [Mr.
                     Wallace’s] motion to suppress evidence of an out-of-
                     court identification of him from a photo array?

               2.    Did the trial court err by denying a motion for mistrial
                     made during the prosecutor’s rebuttal closing argument?

               3.    Did the trial court err by accepting an inconsistent jury
                     verdict?



       3
         Detective Michael Arnett recognized the man in the surveillance stills as Mr.
Wallace and informed Detective Schweinsburg of the man’s identity. Soon after, the police
executed a search warrant on Mr. Wallace’s residence and recovered a black and gray zip-up
hoodie, like the one worn by the man in the stills.
       4
       Mr. Wallace’s third and fourth questions both addressed whether the trial court erred
by accepting an inconsistent verdict.

                                              4
              [4].      Is the evidence legally insufficient to sustain [Mr.
                        Wallace’s] convictions?

We hold that sufficient evidence supported Mr. Wallace’s convictions and that the circuit

court properly denied his motion to suppress. We hold as well, though, that the circuit court

erred in accepting inconsistent jury verdicts, and we vacate the robbery conviction and

remand.5

       A.     The Circuit Court Did Not Err In Denying Mr. Wallace’s Motion
              To Suppress.

       Mr. Wallace argues first that the circuit court erred in denying his motion to suppress

Mr. Womack’s testimony identifying him from a photo array. Mr. Wallace argues that Mr.

Womack’s extrajudicial identification was impermissibly suggested when Detective Konya,

before displaying the photo array, informed Mr. Womack that the police had “found the

person that did it,” and that this “made him believe that the photo array contained an image

of the suspect.” The State counters that the extrajudicial identification procedure was not

impermissibly suggestive because the detectives did not indicate who should be chosen. We

agree with the State.

       In reviewing the circuit court’s disposition of Mr. Wallace’s motion to suppress, “‘we

look only to the record of the suppression hearing and do not consider the evidence admitted



       5
         Because our inconsistent jury verdict determination is dispositive, we need not
consider the propriety of the prosecutor’s comment in his closing argument that, “[t]he victim
met with the defendant. The defense doesn’t deny that.” We do, however, caution the
prosecution to avoid such references, particularly where the only defense witness who could
deny that fact is Mr. Wallace himself.

                                              5
at trial.’” James v. State, 191 Md. App. 233, 251 (2010) (quoting Massey v. State, 173 Md.

App. 94, 100 (2007)). We accept the findings of fact and credibility determinations of the

circuit court unless they are clearly erroneous, and we examine the evidence and inferences

reasonably drawn from the evidence in the light most favorable to the party prevailing before

the circuit court, in this case the State. McFarlin v. State, 409 Md. 391, 403 (2009). We

review the trial court’s conclusions of law de novo and make our own independent

assessment by applying the law to the facts of the case. Id.; see also Gatewood v. State, 158

Md. App. 458, 475-76 (2004), aff’d, 388 Md. 526 (2005).

       Extrajudicial identifications obtained through impermissibly suggestive procedures

are not admissible. James, 191 Md. App. at 251-52. We look at the circumstances of Mr.

Womack’s identification of Mr. Wallace through a two-step process:

              The first is whether the identification procedure was
              impermissibly suggestive. If the answer is “no,” the inquiry
              ends and both the extra-judicial identification and the in-court
              identification are admissible at trial. If, on the other hand, the
              procedure was impermissibly suggestive, the second step is
              triggered, and the court must determine whether, under the
              totality of the circumstances, the identification was reliable.

Jones v. State, 395 Md. 97, 109 (2006) (citations omitted). “The defendant bears the burden

of proof in the first stage of the inquiry, and, if the defendant meets this burden, then the

prosecution has the burden in the second stage of the analysis.” Upshur v. State, 208 Md.

App. 383, 400-01 (2012) (citing In re Matthew S., 199 Md. App. 436, 447-48 (2011)), cert.

denied, 430 Md. 646 (2013); see also James, 191 Md. App. at 252 (“Although the reliability



                                              6
of the identification is the linchpin question, if the identification procedure is not unduly

suggestive, then our inquiry is at an end.” (Internal citation and quotation marks omitted.)).

       The circuit court decided that Mr. Wallace had failed to carry his burden of

establishing that the identification process was impermissibly suggestive, so it never reached

the second step of the analysis. In looking at whether the identification was tainted by

suggestiveness, we look in essence at whether the officers prompted Mr. Womack to identify

Mr. Wallace:

               “To do something impermissibly suggestive is not to pressure or
               browbeat a witness to make an identification but only to feed the
               witness clues as to which identification to make. THE SIN IS
               TO CONTAMINATE THE TEST BY SLIPPING THE
               ANSWER TO THE TESTEE. All other improprieties are
               beside the point.”

Jenkins v. State, 146 Md. App. 83, 126 (2002) (emphasis in original) (quoting Conyers v.

State, 115 Md. App. 114, 121 (1997)) (observing that “the scope of identification procedures

constituting ‘impermissible suggestiveness’ is extremely narrow”), rev’d on other grounds,

375 Md. 284 (2003); see also Matthew S., 199 Md. App. at 448.

       We agree with the circuit court that Mr. Wallace failed to meet his initial burden to

prove impermissible suggestiveness.       At the motions hearing, the circuit court heard

testimony from Mr. Womack and Detectives Schwiensburg and Konya. Mr. Womack

testified that prior to being shown the photo array, the detectives informed him that “they had




                                              7
the person.”6 He also testified, however, that the detectives “did not tell [him] how they

found the person,” nor did they give any kind of hint as to which photo he should choose

from among those in the array. Mr. Womack testified that he selected Mr. Wallace’s photo

believing that the array contained the person who robbed him, but not that the detectives told

him so:

              To my knowledge I would have figured that if they said they
              believed to have found the person for what I had provided to
              them, I was to believe that they had the person in the photo line
              up and that’s when I had made my decision this is the guy that
              did it.

       We were presented with a comparable circumstance in Gatewood, 158 Md. App. 458.

In that case, an arresting officer was to serve as a witness in the prosecution of a defendant

charged with various drug crimes. Id. at 471-72. But before being presented with a photo

array, the detective who prepared the array indicated to the arresting officer that “[he] knew

who [the suspect] was,” id. at 472, implicitly “suggesting that [the] person’s photograph was

in the array.” Id. at 476. When presented with the array, the arresting officer ultimately

selected the suspect referred to by the detective. In determining whether the detective’s

statements were impermissibly suggestive, we recognized that although “‘[t]he chance of

misidentification is . . . heightened if the police indicate to the witness that they have other

evidence that one of the persons pictured committed the crime,’” id. (quoting Simmons v.



       6
        Detective Schweinsburg denied ever making such a statement to Mr. Womack, and
Detective Konya was never questioned on the subject. But because such a statement does
not amount to impermissible suggestiveness anyway, we assume that it was made.

                                               8
United States, 390 U.S. 377, 383 (1968)), each case must “nevertheless be judged on its own

facts.” Id. Considering that the detective “left it to [the witness] to select the photograph of

the person who had [committed the crime at issue],” and that “the circuit court was entitled

to consider that [the witness] could reasonably expect that the array shown to him would

have contained a suspect,” we held that the extrajudicial identification procedure was not

impermissibly suggestive. Id.7

       We reach the same conclusion here. The detectives did not “‘contaminate the test by

slipping the answer to [Mr. Womack],’” Jenkins, 146 Md. App. at 126 (quoting Conyers,

115 Md. App. at 121); they left it to him to select the photograph of the person who robbed

him.   And because the detective “did not in any way suggest which photograph or

photographs were of the suspect or give any indication why the person in the photograph was




       7
         We also cited United States v. Gambrill, 449 F.2d 1148 (D.C. Cir. 1971), in which
the court acknowledged the reality that witnesses likely assume that the suspect is among the
people in a lineup:

              Law enforcement personnel should avoid telling a witness that
              a definite suspect is in a lineup but it is not absolutely
              impermissible. . . . It must be recognized, however, that any
              witness to a crime who is called upon to view a police lineup
              must realize that he would not be asked to view the lineup if
              there were not some person there whom the authorities
              suspected.

Gatewood, 158 Md. App. at 476 n.6 (quoting Gambrill, 449 F.2d at 1151 n.3). And although
we recognized that “the lineup procedure is less likely than a photo array to suffer from this
tactic,” we considered the court’s observation in Gambrill relevant to photo arrays as well.
Id.

                                               9
suspected of having committed the robbery,” State v. Bolden, 243 N.W.2d 162, 164 (Neb.

1976) (cited by Gatewood, 158 Md. App. at 477 n.6), Mr. Wallace’s arguments do not

support a finding of impermissible suggestiveness. The circuit court did not err in ruling that

Mr. Wallace failed to sustain his burden of showing that the identification procedure used

by the police was unduly suggestive, and on that basis denying his motion to suppress Mr.

Womack’s extrajudicial identification. That ends the inquiry. See James, 191 Md. App. at

252; Jones, 395 Md. at 109.

       B.     Sufficient Evidence Existed To Support The Jury’s Finding That
              Mr. Wallace Committed The Robbery.

       Mr. Wallace argues next that insufficient evidence existed to support the jury’s finding

that he committed the offense of robbery.8 Mr. Wallace acknowledges that “there is [no]

doubt that Matthew Womack was the victim of a robbery,” but he argues that the prosecution

failed to produce sufficient evidence to establish that he was one of the robbers. We disagree.

       In reviewing a sufficiency challenge, we must “determine ‘whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’” Taylor v. State, 346

Md. 452, 457 (1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is not our

role to measure the weight of the evidence; instead, we consider “only whether the verdict



       8
          Robbery is “‘the felonious taking and carrying away of the personal property of
another, from his person or in his presence, by violence or putting in fear, or, more
succinctly, as larceny from the person, accompanied by violence or putting in fear.’” Ball
v. State, 347 Md. 156, 184 (1997) (quoting West v. State, 312 Md. 197, 202 (1988)).

                                              10
was supported by sufficient evidence, direct or circumstantial, which could fairly convince

a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.”

Id. (citing State v. Albrecht, 336 Md. 475, 478-79 (1994)). “We defer to any possible

reasonable inferences the jury could have drawn from the admitted evidence and need not

decide whether the jury could have drawn other inferences from the evidence, refused to

draw inferences, or whether we would have drawn different inferences from the evidence.”

State v. Mayers, 417 Md. 449, 466 (2010).

       Because Mr. Wallace concedes that a robbery did, in fact, occur, one fact inferred by

the jury is of crucial importance here: that Mr. Wallace was, in fact, one of two men who

robbed Mr. Womack. We focus, then, while reviewing the evidence in a light most favorable

to the State, on whether any rational jury could have drawn this same inference.

       The jury’s inference relied primarily upon circumstantial evidence produced by the

State regarding Mr. Wallace’s whereabouts between the time he spoke with Mr. Womack at

the bus stop and when surveillance cameras captured him making purchases at the same time

and at the same stores at which Mr. Womack’s stolen credit card was used. “A conviction

can rest on circumstantial evidence alone,” but such a conviction “cannot be sustained on

proof amounting only to strong suspicion or mere probability.” Taylor, 346 Md. at 458

(citing Wilson v. State, 319 Md. 530, 535-36 (1990)). The circumstantial evidence may “not

require the trier of fact to resort to speculation or conjecture,” and if this is the case, and there

is “no solid factual foundation, there can be no conviction.” Id. Put differently, “when the



                                                 11
evidence equally supports two versions of events, and a finding of guilt requires speculation

as to which of the two versions is correct, a conviction cannot be sustained.” Id. (citing

Hebron v. State, 331 Md. 219, 234 (1993)).

       Indeed, the parties propose two alternative versions of the events in the time between

the meeting at the bus stop and Mr. Wallace’s visits to Exxon and 7-Eleven: the State argued

that Mr. Wallace committed the robbery in that intervening time, while Mr. Wallace

contended that the connection was mere coincidence. A review of the record in the light

most favorable to the prosecution demonstrates a solid factual foundation upon which a

rational factfinder could agree with the State:

       •      Mr. Wallace and Mr. Womack had met twice at the bus stop
              prior to the robbery: once two weeks prior and again shortly
              before the robbery. In total, the two spoke for between twelve
              and eighteen minutes.

       •      Shortly after the second meeting, during which Mr. Wallace
              asked Mr. Womack where he was going, and just down the road
              from their meeting point, Mr. Womack was robbed of his credit
              card, among other items, by two masked men.

       •      Shortly thereafter, Mr. Womack’s card was used at an Exxon
              and a 7-Eleven in the vicinity of the robbery, and Mr. Wallace
              was caught on surveillance purchasing items from those same
              stores in the hours following the robbery.

       •      The assailants wore dark hooded sweatshirts, Mr. Wallace was
              wearing a black and gray sweatshirt in the surveillance stills,
              and that same sweatshirt was found in his room months later.

The connection between these pre- and post-robbery circumstances was strengthened further

by Mr. Womack’s identification of Mr. Wallace at the scene of the crime as a result of his

                                             12
prior interactions with him. Mr. Womack testified that from those prior interactions, he

recognized the eyes and voice of one of his assailants as those of Mr. Wallace.

       The circumstantial evidence produced by the State, coupled with Mr. Womack’s

identification, could readily have allowed the jury to infer that Mr. Wallace was one of the

men who robbed Mr. Womack. The evidence on the record tying Mr. Wallace to the robbery

(which he admits occurred) supports a finding that the jury’s inference was reasonable. And,

as we noted above, “[w]e defer to any possible reasonable inferences the jury could have

drawn from the admitted evidence.” Mayers, 417 Md. at 466. As such, after viewing the

evidence in the light most favorable to the prosecution, we hold that a rational trier of fact

could have found beyond a reasonable doubt that Mr. Wallace committed the crime for which

he was charged.

       C.     The Circuit Court Erred By Accepting An Acquittal On A Lesser-
              Included Offense Of A Crime For Which Mr. Wallace Was
              Convicted When Those Crimes Arose During The Same Criminal
              Transaction.

       Finally, Mr. Wallace challenges the circuit court’s decision to accept what he

characterizes as a legally inconsistent jury verdict. At the conclusion of the trial, the jury

found Mr. Wallace guilty of robbery, among other charges, but not guilty of second-degree

assault. After the verdicts were read, Mr. Wallace’s counsel objected to the alleged verdicts,9




       9
         Mr. Wallace properly raised an inconsistent verdict challenge before the circuit
court, and the State does not argue otherwise. See McNeal v. State, 426 Md. 455, 466 (2012)
(quoting Price v. State, 405 Md. 10, 40-42 (2008) (Harrell, J., concurring)).

                                              13
and counsel for both Mr. Wallace and the State initially requested that the case be sent back

to the jury to resolve the inconsistency. But after a brief recess, the State changed course and

opposed Mr. Wallace’s contention of legal inconsistency. The circuit court agreed and

declined Mr. Wallace’s request.10

       Mr. Wallace argues here that second-degree assault is a lesser-included offense of

robbery, and therefore that the acquittal for second-degree assault was legally inconsistent

with the guilty verdict for robbery. The State counters that the verdicts were not legally

inconsistent because the evidence produced at trial supported two separate and distinct

instances of assault. “We review de novo the question of whether verdicts are legally

inconsistent. This is so because we review the elements of the offense at issue in light of the

jury instructions.” Teixeira v. State, 213 Md. App. 664, 668 (2013).

              1.      Legally inconsistent verdicts generally

       Legally inconsistent jury verdicts in criminal cases are no longer acceptable in

Maryland.11 See McNeal v. State, 426 Md. 455, 458 (2012); Price v. State, 405 Md. 10, 35


       10
          Mr. Wallace also filed a post-judgment motion to strike the inconsistent verdicts,
but this motion was also denied. But as we explain, the error was in declining to send the
case back to the jury for further deliberations. See Price, 405 Md. at 41-42.
       11
         For an in-depth review of the jurisprudential evolution of inconsistent verdicts, see
Travis v. State, __ Md. App. __, No. 1174, Sept. Term 2013, at 25-44 (filed August 26,
2014). Travis sets a useful legal backdrop for our discussion of inconsistent jury verdicts,
but doesn’t fully answer the question before us here. That case involved a challenge to the
consistency of verdicts issued in a bench trial, whereas this case involves purportedly
inconsistent verdicts issued by a jury, and Travis did not turn (as this case does) on the
number of criminal transactions pled and proven. In Travis, we cautioned that “[b]etween
                                                                               (continued...)

                                              14
(2008) (Harrell, J., concurring); Teixeira, 213 Md. App. at 678-79. “A legally inconsistent

verdict is one where the jury acts contrary to the instructions of the trial judge with regard

to the proper application of the law.”12 McNeal, 426 Md. at 458 (citing Price, 405 Md. at

35). More specifically, “[v]erdicts where a defendant is convicted of one charge, but

acquitted of another charge that is an essential element of the first charge, are inconsistent

as a matter of law.”13 Id. (emphasis added).

              The underlying purpose of this rule is to ensure that an
              individual is not convicted of a crime on which the jury has
              actually found that the defendant did not commit an essential
              element, whether it be one element or all. A person cannot be
              convicted of a crime if a jury has necessarily decided that one of
              the essential elements was not proven beyond a reasonable
              doubt.

Teixeira, 213 Md. App. at 680 (internal quotation marks omitted) (quoting People v.

Muhammad, 17 N.Y.3d 532, 539 (2011)).



       11
          (...continued)
jury trials and bench trials, . . . there are more dissimilarities than similarities in handling
their respective inconsistencies,” id. at 53, and advised that courts should “carefully
differentiate between the different types of inconsistency and refrain from trying to squeeze
dissimilar problems under a single umbrella.” Id.
       12
          A legally inconsistent verdict is different than a factually inconsistent verdict.
“Factually inconsistent verdicts are those where the charges have common facts but distinct
legal elements and a jury acquits a defendant of one charge, but convicts him or her on
another charge.” McNeal, 426 Md. at 458 (emphasis added). Factually inconsistent verdicts,
while illogical, are permissible.
       13
          In other words, “legally inconsistent verdicts are those where a defendant is
acquitted of a ‘lesser included’ crime embraced within a conviction for a greater offense.”
McNeal, 426 Md. at 458 n.1.

                                               15
       In Price, McNeal, and Teixeira, the touchstone for determining whether verdicts were

legally inconsistent was whether “[t]he crime for which appellant was acquitted, and the

crime for which he was convicted, each contained elements that the other did not.” 14 McNeal

v. State, 200 Md. App. 510, 517 (2011) (citing Tate v. State, 182 Md. App. 114, 131-32

(2008)), aff’d, 426 Md. 455 (2012). But the parties agree here (as do we) that second-degree

assault, the charge for which Mr. Wallace was acquitted, was a lesser-included offense of

robbery, for which he was convicted,15 so the two crimes indisputably have common

elements.

       Instead, the question here is more one of pleading than of law: whether the two

charges arose from one criminal transaction (as Mr. Wallace argues)—i.e., that the alleged


       14
        In Price, McNeal, and Teixeira, the analysis centered upon whether the crime for
which the defendant was acquitted was a lesser-included offense of the crime for which the
defendant was convicted. See Price, 405 Md. at 37; McNeal, 426 Md. at 472-73; Teixeira,
213 Md. App. at 681-82.
       15
          In determining whether two offenses are the same, we apply the required evidence
test. Snowden v. State, 321 Md. 612, 616 (1991). “‘The required evidence test focuses upon
the elements of each offense; if all of the elements of one offense are included in the other
offense, so that only the latter offense contains a distinct element or distinct elements,’” the
former is a lesser-included offense of the latter. Graham v. State, 117 Md. App. 280, 288
(1997) (quoting Snowden, 321 Md. at 617). Applying the required evidence test, courts of
this State have recognized that

              robbery is a lesser included offense of armed robbery. Simple
              assault is a lesser included offense of both robbery and armed
              robbery. Like a little fish being eaten by a bigger fish which in
              turn is eaten by a yet bigger fish, simple assault is swallowed by
              robbery which then is swallowed by armed robbery.

Gerald v. State, 299 Md. 138, 140-41 (1984).

                                              16
assault was also the force element of the robbery—or two separate and distinct criminal

transactions, each capable of giving rise to separate, and possibly factually inconsistent,

verdicts (as the State contends). If one criminal act gave rise to both charges, the jury’s

verdicts would be legally inconsistent because the jury, by acquitting him of second-degree

assault, negated a necessary element of robbery. If, on the other hand, the jury was presented

with two separate criminal acts, the verdicts would be, at most, factually inconsistent.

       The question of whether the charges arose from one or more than one criminal

transaction asks essentially the same question we ask when we determine whether

convictions merge.16 See Morris v. State, 192 Md. App. 1, 39 (2010) (“To evaluate the

legality of the imposition of separate sentences for the same act, we look first to whether the

charges ‘arose out of the same act or transaction,’ then to whether ‘the crimes charged are

the same offense.’” (quoting Jones v. State, 357 Md. 141, 157 (1999))). The State bears the

“burden of proving distinct acts or transactions for purposes of separate units of



       16
          The appellant in Dansbury v. State, 193 Md. App. 718 (2010), raised the same-
transaction issue before this Court in the inconsistent jury verdict context, but the case was
decided on a separate and dispositive ground, so we declined to reach it there. Id. at 722.

        It is true that at least two of our pre-Price cases have held that merger is not
appropriate when a jury has acquitted the defendant of a lesser-included charge. See Dorsey
v. State, 9 Md. App. 80, 88 (1970) (“We have consistently held that the doctrine of merger,
which may be applied to avoid multiple convictions at the same trial, does not apply where
there is an acquittal of the lesser crime and a conviction of the greater crime at the same trial,
or conversely.”); Tyler v. State, 5 Md. App. 158, 161 (1968). We wonder, in light of Price
and its progeny, whether these cases remain good law at this point. But we need not and do
not decide that question—we simply find the merger analysis a useful analogy for thinking
through whether the assault at issue here is transactionally distinct from the robbery.

                                               17
prosecution,” id. (citing Snowden v. State, 321 Md. 612, 618 (1991)), and argues here that

the testimony offered at trial supports a finding of separate instances of assault. But this

determination “is, given the requisite convictions, foreordained before a word of testimony

is taken.” Thompson v. State, 119 Md. App. 606, 617 (1998). “The pertinent question is not

whether more than one assault was conceivably proved. It is whether more than one assault

was actually charged and, if not, then which of several possible assaults was the only assault

charged.” Id. at 609 (emphasis added).

       We addressed the same-transaction analysis at length in Morris. The defendant in that

case was involved in a robbery and was convicted and sentenced for charges of both assault

and robbery. 192 Md. App. at 7. There, we asked “whether appellant’s first-degree assault

convictions were distinct acts or whether they arose out of the acts of armed robbery against

[the victims],” id. at 40, and thus whether they should have been merged by the sentencing

court. Instead of looking to the evidence, as the State had proposed, id. at 42, we looked to

the indictment and jury instructions to determine whether it had been made clear to the jury

that an act of assault separate from the one explicitly charged underlay the robbery charge.

Id.; see also Snowden, 321 Md. at 619. We observed that “when the indictment or jury’s

verdict reflects ambiguity as to whether the jury based its convictions on distinct acts, the

ambiguity must be resolved in favor of the defendant.” Morris, 192 Md. App. at 39

(emphasis added) (citing Williams v. State, 187 Md. App. 470, 477 (2009)). And because

“neither the [indictment] nor the jury instructions made clear that the charges of assault were



                                              18
based upon separate and distinct acts from those upon which the robbery charges were

based,” we resolved the ambiguity in favor of the defendant, found that the assault and

robbery arose from the same criminal transaction, and held that the sentencing court erred

by failing to merge the assault charge into the robbery charge. Id. at 44.

       We also looked back to our earlier decisions in Gerald v. State, 137 Md. App. 295

(2001), and Williams, 187 Md. App. 470, cases in which the State argued that the evidence

introduced at trial was sufficient to establish that the defendant’s act of assault was an act

distinct from the act of robbery at issue. See Morris, 192 Md. App. at 42-43. In Gerald, we

rejected this argument because, again, it focused on the proof rather than the indictment:

              The court instructed the jury on the elements of each charge, but
              it did not explain how the assault and robbery charges related to
              one another, how they differed, and what the jury needed to find
              to convict under both charges. See Graham v. State, 117 Md.
              App. 280, 289 (1997) (no ambiguity where the court clearly
              explained the difference between the two counts at issue). . . .
              With an ambiguity in the indictment, and non-curative
              instructions, the first degree assault conviction must indeed
              merge into the robbery conviction.

Morris, 192 Md. App. at 42 (emphasis added) (citing Gerald, 137 Md. App. at 312). We

made the same point again in Williams:

              “[Defendant’s] charging document is ambiguous as to the
              particular act for which he was charged with first degree assault
              of [the victim]. See Gerald, 137 Md. App. at 312 (conviction
              for first degree assault merges into a conviction for robbery with
              a dangerous and deadly weapon when the charging document is
              ambiguous as to the particular act alleged to have constituted
              first degree assault). Moreover, the court did not instruct the
              jury as to ‘how the assault and robbery charges related to one

                                             19
                another, how they differed, and what the jury needed to find to
                convict under both charges.’ Id. (citations omitted). In light of
                the court’s failure to give curative instructions, and the
                ambiguity of [defendant’s] charging document, we must resolve
                the question of whether the charges of robbery and assault of
                [the victim] were based upon the same conduct in [defendant’s]
                favor. Id.”

Morris, 192 Md. App. at 43 (emphasis added) (quoting Williams, 187 Md. App. at 477).

Put another way,

                “If the facts could somehow support a finding that there was [an
                assault] in this case unrelated to the robbery . . . the short answer
                is that such an unrelated [assault] was never charged. If a single
                [assault] count could somehow support either of two separate
                [assaults] but not both, then we would have vagueness problems
                and double jeopardy problems that are mind-boggling.”

Thompson, 119 Md. App. at 620 (quoting Snowden v. State, 76 Md. App. 738, 752 (1988),

(Moylan, J., concurring and dissenting), rev’d, 321 Md. 612 (1991)).

       In this case, the State argues that the jury could have inferred from the evidence

introduced at trial that the act underlying Mr. Wallace’s second-degree assault charge was

an act distinct from the robbery of Mr. Womack.17 Simply put, the separate assault was never



      17
           This despite the fact that the State’s own closing argument illustrated the ambiguity:

                       The Judge just instructed you on the offenses the
                defendant is charged with. You have here the verdict sheet in
                front of you. Second degree assault is one of the offenses.
                Second degree assault is causing physical harm or offensive
                physical contact to another.

                       There is your second degree assault right there. Hitting
                                                                                        (continued...)

                                                 20
charged. But the indictment is ambiguous as to the particular act giving rise to the second-

degree assault charge.18 And we see no curative instruction to the jury explaining “how the

       17
            (...continued)
                  him, pushing him down on the grounds, hurting his eye, hurting
                  his knee.

                                              ***

                        And then the robbery. Robbery is the taking of property
                 by force. We know we have the taking of property covered, and
                 the force we know pushing him down to the ground, hitting him,
                 and pointing a gun at him, all the things that create force.
                 (T2.30-33)

(Emphasis added.) Even the State doesn’t argue that the charging documents or jury
instructions identified two separate and distinct acts, however.
       18
            The indictment read as follows:

                 THE GRAND JURORS FOR THE BODY OF PRINCE
                 GEORGE’S COUNTY, ON THEIR OATH DO PRESENT
                 THAT BRANDON BERNARD WALLACE ON OR ABOUT
                 THE 4TH DAY OF NOVEMBER, TWO THOUSAND AND
                 ELEVEN, IN PRINCE GEORGE’S COUNTY, MARYLAND
                 DID FELONIOUSLY ROB MATTHEW LAWRENCE
                 WOMACK OF PERSONAL PROPERTY TO INCLUDE
                 CELLULAR PHONE, TD BANK CARD, JACKET AND
                 BAG, IN VIOLATION OF § 3-402 OF THE CRIMINAL
                 LAW ARTICLE AGAINST THE PEACE, GOVERNMENT
                 AND DIGNITY OF THE STATE. (ROBBERY)

                                              ***

                 THE GRAND JURORS FOR THE BODY OF PRINCE
                 GEORGE’S COUNTY, ON THEIR OATH DO PRESENT
                 THAT BRANDON BERNARD WALLACE ON OR ABOUT
                 THE 4TH DAY OF NOVEMBER, TWO THOUSAND AND
                                                                                   (continued...)

                                               21
assault and robbery charges related to one another, how they differed, and what the jury

needed to find to convict under both charges.”19 Morris, 192 Md. App. at 43 (internal


      18
           (...continued)
                 ELEVEN, IN PRINCE GEORGE’S COUNTY, MARYLAND
                 ASSAULTED MATTHEW LAWRENCE WOMACK IN THE
                 SECOND DEGREE, IN VIOLATION OF § 3-203 OF THE
                 CRIMINAL LAW ARTICLE AGAINST THE PEACE,
                 GOVERNMENT AND DIGNITY OF THE STATE. (2ND
                 DEGREE ASSAULT)


      19
           The jury instructions read as follows:

               MPJI-Cr 4:01: SECOND DEGREE ASSAULT
               The defendant is charged with the crime of assault.
               Assault is causing offensive physical contact and/or physical
               harm to another person. In order to convict the defendant of
               assault, the State must prove:
               (1) that the defendant caused offensive physical contact with
               and/or physical harm to Matthew Lawrence Womack; and
               (2) that the contact was the result of an intentional or reckless
               act of the defendant and was not accidental.

                                              ***

               MPJI-Cr 4:28: ROBBERY
                                                A
                             TAKING AND CARRYING AWAY
               The defendant is charged with the crime of robbery. Robbery is
               the taking and carrying away of property from someone else by
               force or threat of force, with the intent to deprive the victim of
               the property. In order to convict the defendant of robbery, the
               State must prove:
               (1) that the defendant took the property from Matthew Lawrence
               Womack;
               (2) that the defendant took the property by force or threat of
               force; and
                                                                                    (continued...)

                                              22
quotation marks omitted) (quoting Williams, 187 Md. App. at 477); see also Snowden, 321

Md. at 619 (recognizing that had the case before it been a jury trial, it “could have looked to

the judge’s instructions in hope of illuminating the rationale behind the verdicts”);

Thompson, 119 Md. App. at 611 (requiring the separate assault offenses to be “clearly and

distinctly charged as part of the Grand Jury indictment”).

       In accordance with Morris, Gerald, Williams, and Thompson, and in light of the

ambiguities apparent in the indictment and jury instructions, we hold that Mr. Wallace’s

second-degree assault and robbery charges arose from the same criminal transaction. And

because the elements of second-degree assault are included within the greater offense of

robbery, the acquittal on the second-degree assault charge was legally inconsistent with the

guilty robbery verdict, and the circuit court erred in accepting those legally inconsistent

verdicts. The conviction imposed for robbery must be vacated, and we remand for further

proceedings.




       19
            (...continued)
                  (3) that the defendant intended to deprive Matthew Lawrence
                  Womack of the property.
                  Property means anything of value. Deprive means to withhold
                  property of another permanently, for such a period as to
                  appropriate a portion of its value, with the purpose of restoring
                  it only upon payment of a reward or other compensation, or to
                  dispose of the property and use or deal with the property so as
                  to make it unlikely that the owner will recover it.

                                                 23
CONVICTION FOR ROBBERY VACATED
AND REMANDED FOR NEW TRIAL;
JUDGMENTS OF THE CIRCUIT COURT
FO R PRINCE G EO RG E’S CO UNTY
AFFIRMED IN ALL OTHER RESPECTS.
CO STS TO BE DIVIDED EVENLY
BETWEEN APPELLANT AND PRINCE
GEORGE’S COUNTY.




 24
