Travis v. State, 218 Md. App. 410

Appellant James Lee Travis was tried non-jury in the Worcester County Circuit Court and convicted of second-degree rape, a second-degree sexual offense, a third-degree sexual offense, and second-degree assault.
The core issue centered on lack of consent, specifically whether the victim’s asleep state automatically proves lack of consent under § 3-304(a)(2).
The verdict included a acquittal on a fourth-degree sexual offense, creating potential inconsistency with the three convictions that required absence of consent.
The trial court relied on the victim’s sleeping state to establish ‘physically helpless’ status, thereby automatic lack of consent for the three convictions but not for the fourth-degree offense.
The Court of Special Appeals affirmed the convictions, holding that sleeping (physically helpless) vitiates consent under the relevant modalities and that inconsistency rules did not mandate reversal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether lack of consent was proved under the statutes	Travis argues lack of consent must be proven by resistance for all mods.	State argued sleep/physical helplessness automatically proves lack of consent under § 3-304(a)(2).	Yes; sleep/physical helplessness automatically proves lack of consent under (a)(2).
Whether verdicts were legally/factually inconsistent	Acquittal on the fourth-degree offense conflicts with concurrent convictions.	Inconsistencies may be factually or legally permissible depending on the framework.	No fatal inconsistency; the convictions and acquittal are not legally inconsistent under current Maryland law.
Whether the trial judge’s articulation affected due process	Judge’s statements that ‘lack of consent’ did not apply to (a)(2) eroded due process.	Context shows the judge discussed modalities; due process requires proof of lack of consent, not articulation.	Due process satisfied; the state’s proof supported lack of consent under (a)(2).
Whether the inconsistency issue was preserved for review	Defense preserved error by timely objection to inconsistency.	No timely objection was raised; Price/McNeal/Tate line governs preservation.	Non-preserved; appellate review limited to preserved issues.

Price v. State, 405 Md. 10 (Md. 2008) (rejects jury-consistency tolerance for legally inconsistent verdicts)
McNeal v. State, 426 Md. 455 (Md. 2012) (adopts Price concurrence distinction; preserves non-preservation rule)
Teixeira v. State, 213 Md. App. 664 (Md. Ct. Spec. App. 2013) (clarifies timely objection standard; distinguishes legal vs factual inconsistency)
Dunn v. United States, 284 U.S. 390 (U.S. 1932) (jury inconsistency allowed when not legally inconsistent)
Steckler v. United States, 7 F.2d 59 (2d Cir. 1925) (early tolerance of jury-conviction vs acquittal inconsistencies)
U.S. v. Powell, 469 U.S. 57 (U.S. 1984) (reiterates Dunn principle on inconsistent verdicts)
Leet v. State, 203 Md. 285 (Md. 1953) (longstanding Maryland stance on inconsistent verdicts by judge)