Owens v. Trammell, — F.3d —-, 2015 WL 4081123 (10th Cir. July 7, 2015)

In a trial for felony murder, a jury returned a verdict with the box for felony murder marked as guilty, but the box for the predicate robbery charge marked as not guilty. The state appeals court reversed and remanded for a new trial, but on retrial he was convicted again of felony murder. He then argued that acquittal of the lesser-included offense precluded retrial of the greater included charge because they were the same charge for the purposes of double jeopardy. Focusing on the apparent inconsistency of the verdicts, the Court observed that a jury may be convinced of guilt but arrive at a logically inconsistent verdict “through mistake, compromise, or lenity[.]” The test for identifying a “truly inconsistent verdict” is whether there is any conceivable path by which to reconcile the verdicts.