               IN THE SUPREME COURT, STATE OF WYOMING

                                       2015 WY 100

                                                            APRIL TERM, A.D. 2015

                                                                  August 4, 2015

KELVIN WAYNE WILLIAMS,

Appellant
(Defendant),

v.                                                   S-14-0233

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                  Appeal from the District Court of Sweetwater County
                       The Honorable Richard L. Lavery, Judge

Representing Appellant:
      Office of the State Public Defender: Diane M. Lozano, State Public Defender;
      Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant
      Appellate Counsel. Argument by Mr. Alden.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C.
      Eames, Assistant Attorney General. Argument by Mr. Eames.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.

[¶1] Kelvin Williams pled guilty to third-degree sexual assault and nolo contendere to
abuse of a vulnerable adult, for entering the home of 68-year-old A.S. and touching her
breast while she lay on her bed, breathing from an oxygen tank. At the plea hearing, the
court read both charges from the Information, advised Mr. Williams of the consequences
of his pleas, inquired whether Mr. Williams understood the charges and was satisfied
with his counsel, and asked questions to establish a factual basis for the pleas. On appeal,
Mr. Williams contends neither plea was informed because the court failed to adequately
explain the charges and establish sufficient factual bases. We affirm.

                                           ISSUES

[¶2]   We restate the issues as follows:

      1. Did the district court adequately explain the nature of Mr. Williams’ third-
degree sexual assault charge and obtain a sufficient factual basis for his guilty plea?

      2. Did the district court adequately explain the nature of Mr. Williams’ abuse of
a vulnerable adult charge and obtain a sufficient factual basis for his nolo contendere
plea?

                                           FACTS

[¶3] The Sweetwater county prosecutor filed a criminal Information against Mr.
Williams, charging him with two counts of third-degree sexual assault, one count of
abuse of a vulnerable adult, and one count of burglary. The Information described the
two sexual assault counts as follows:

                     On or about the 26th day of October, 2012, subject a
              victim, namely: A.S., to sexual contact under any of the
              circumstances of W.S. 6-2-302(a)(i) through (iv) or 6-2-
              303(a)(i) through (vi) without inflicting sexual intrusion on
              the victim and without causing serious bodily injury to the
              victim, contrary to W.S. § 6-2-304(a)(iii) - SEXUAL
              ASSAULT IN THE THIRD DEGREE,

                     a felony punishable by imprisonment for not more than
              fifteen (15) years and the court may also impose a fine that
              shall not be more than ten thousand dollars ($10,000.00),
              W.S. §6-2-306(a)(iii) and W.S. §6-10-102.




                                             1
[¶4] At Mr. Williams’ arraignment, the district court read the charges as listed in the
Information without specifying which of the ten1 statutory provisions referenced in the
sexual assault charges applied to Mr. Williams. Mr. Williams pled not guilty to all four
counts.

[¶5] As the proceedings unfolded, Mr. Williams expressed dissatisfaction with his first
appointed attorney and, after waiving his right to a speedy trial, was provided a second
attorney. The second attorney filed a motion for a bill of particulars seeking clarification
of which subsection of either Wyo. Stat. Ann. §§ 6-2-302 or 6-2-303 Mr. Williams was
alleged to have violated. During a hearing on the motion, the prosecutor explained:
“What the State is going to allege for both of the sexual assaults would be under the
Sexual Assault in the Second Degree subsection 6-2-303 -- 6-2-303 (a) two little (ii)s, the
actor causes submission of the victim by any means that would prevent resistance by a
victim of ordinary resolution.”

[¶6] Pursuant to a plea agreement, Mr. Williams eventually pled guilty to one count of
third-degree sexual assault and nolo contendere to the abuse of a vulnerable adult charge.
Prior to receiving Mr. Williams’ pleas, the district court explained the maximum sentence
and restitution for each of the four charges. The court asked Mr. Williams, “Do you have
any questions about the charges or the possible penalties?” Mr. Williams responded,
“No, sir, I don’t.” The court went on:

               The Court: Mr. Williams, when you were here at your
               arraignment you plead [sic] not guilty and the Court set the
               matter for trial, and as I indicated earlier this matter was set to
               go to trial commencing next Tuesday. I have now been
               notified by the parties that there has been a plea agreement
               reached between you and your attorney and the county
               attorney’s office. Is that your understanding?

               [Mr. Williams]: Yes, your Honor.

                     The Court: Is it your understanding that you will
               change your plea today pursuant to that agreement?

               [Mr. Williams]: Yes, sir.

               The Court: [Defense Counsel], would you put the plea
               agreement on the record.[2]

1
  Ten subsections were included in the Information, although subsection (v) of Wyo. Stat. Ann. § 6-2-
303(a) had been repealed in 2007.
2
  There is no written plea agreement in the appellate record.


                                                 2
[Defense Counsel]: Yes, your Honor, I will.

        Your Honor, [Mr. Williams] will plead guilty to Count
I, third degree sexual assault. The State will dismiss Count II,
third degree sexual assault. He will plead guilty to vulnerable
adult -- violation of a vulnerable adult statute and that will be
a -- excuse me, your Honor, a no contest plea on Count III.
Then Count IV, the Burglary, will be dismissed. [Mr.
Williams] will serve a term of incarceration on Count I and
Count III of five to eight years in the Wyoming State
Penitentiary. Both counts to run concurrent with each other.

The Court: Mr. Williams, is that your understanding?

....

[Mr. Williams]: Yes, sir.

The Court: So, Mr. Williams, do you feel like you understand
the plea agreement and the consequences of that agreement?

[Mr. Williams]: Yes, sir, I do.

The Court: Is it your desire today to go ahead with it?

[Mr. Williams]: Yes, sir.

....

The Court: Is your change of plea today voluntary?

[Mr. Williams]: Yes, sir.

....

The Court: Have you talked to [Defense Counsel] about your
plea and plea agreement?

[Mr. Williams]: Yes, sir.

The Court: Are you satisfied with the work he has done for
you and the advice he has given you?

[Mr. Williams]: Yes, sir.

                                  3
[¶7] The district court then read the charges from the Information, which had not been
amended, and allowed Mr. Williams to enter his guilty plea to third-degree sexual assault
and nolo contendere plea to abuse of a vulnerable adult. The court then inquired of Mr.
Williams to establish a factual basis for his pleas:

             The Court: So, Mr. Williams, you were in Sweetwater County
             back on October 26th, 2012. Is that correct?

             [Mr. Williams]: Yes, sir.

             ....

             The Court: Were you employed at the time?

             [Mr. Williams]: Yes. My wife and I owned a taxi service.

             ....

             The Court: So how was it that you knew [A.S.]?

             [Mr. Williams]: I drove [A.S.] several times to different
             locations here in town.

             ....

             The Court: So tell me what happens on October 26th, 2012.

             [Mr. Williams]: I stopped by [A.S.’s] house. I went in, stood
             there and talked to her. I sat down on the edge of the bed.
             We had [a] conversation and I touched her breast and she
             asked me to stop and I did. I apologized for overstepping my
             bounds and I left.

             The Court: Mr. Williams, when you went there that day what
             was your reason for going there?

             [Mr. Williams]: I received a phone call from her on the day
             before asking me to stop by and see her and talk to her.
             [A.S.] and I were friends more than we were just taxi driver
             and customer.

             ....


                                           4
              The Court: In the course of talking to her, as you indicated
              you overstepped your bounds?

              [Mr. Williams]: Yes, sir. Conversations that we had, I
              thought she was interested in more of an intimate relationship
              and I -- what would you say, I acted up on that. And
              evidently my thinking was different than her thinking. I’m
              not sure quite how to explain that. Once I realized that wasn’t
              what she wanted, I immediately stopped when she asked me
              to.

              The Court: What specifically did you do again?

              [Mr. Williams]: I touched her breast. I massaged one part of
              her chest on the left side above her breast and then I touched
              her breast. She told me to stop and I stopped.

              ....

              The Court: We had a hearing the other day and I understood
              she was on oxygen.

              [Mr. Williams]: She uses it when she lays down.

              The Court: So she was on oxygen?

              [Mr. Williams]: Yes, sir, I believe she had it on.

              The Court: She didn’t ask you to touch her breast?

              [Mr. Williams]: No, sir.

              The Court: You realized when you were doing that you were
              making sexual contact with her?

              [Mr. Williams]: Yes, sir.

The district court asked the prosecutor whether Mr. Williams’ testimony provided a
sufficient factual basis for third-degree sexual assault, to which the prosecutor responded,
“I believe so, Judge.” The State then offered its factual basis to support Mr. Williams’
nolo contendere plea for abuse of a vulnerable adult:



                                             5
             [Prosecutor]: Your Honor, the factual basis with respect to
             Count III would include the facts that were just mentioned,
             together with additional facts that pertain to [A.S.’s] status as
             a vulnerable adult. She has previously been adjudicated to be
             disabled by the Social Security Administration. She was on
             oxygen and [a] variety of medications, approximately 20.
             She had a triple bypass. She had hepatitis with cirrhosis of
             the liver, as well as some kidney issues. On the morning in
             question she was in bed on oxygen. She received assistance
             from relatives, friends, and neighbors in terms of caring for
             herself on a daily basis. And I believe, Judge, those would
             constitute the additional facts that would render her under the
             law a vulnerable adult.

             ....

             The Court: So, Mr. Williams, you heard the recitation of
             some of the facts that the State would have relied upon in
             order to make its case that [A.S.] was a vulnerable adult, and
             by pleading no contest you are telling the Court that you don’t
             contest those things. Is that correct?

             [Mr. Williams]: Yes, sir.

The district court concluded:

             The Court: Well, Mr. Williams, the Court finds that you are
             mentally alert, that you are capable of understanding these
             proceedings and competent to enter your plea of guilty to
             Count I and no contest to Count III.

                   Your plea was made after consultation with competent
             counsel, with whom you are satisfied, without any improper
             inducement or conditions, and with an understanding of the
             charge and the possible consequences.

                    You were advised as required by Rule 11 and you
             certainly understood those advisements.

                    There is a factual basis for your guilty plea to Count I
             and the no contest plea for Count III in accordance with the
             plea agreement.



                                            6
[¶8] On January 28, 2014, Mr. Williams moved to withdraw his plea. He argued that
his original plea was not “knowing and voluntary” because he was misled into believing
A.S. was “in a coma and expected to die on the very week of the scheduled trial[,]” and
that such information “put an inordinate amount of pressure upon [him] to plea[d]
wrongfully to the charge.” The district court denied the motion.

[¶9] Mr. Williams’ Judgment and Sentence was filed June 4, 2014, listing his crimes
as follows: “Count I Sexual Assault in the Third Degree, a felony in violation of W.S.
§6-2-304(a)(iii),[3] and Count III Abuse of a Vulnerable Adult, a felony in violation of
W.S. §6-2-507(a)[.]” He was sentenced to not less than five years and not more than
eight years on both counts, to run concurrently, with credit for 570 days time served.

[¶10] Mr. Williams timely filed this appeal.

                                    STANDARD OF REVIEW

[¶11] In his motion to withdraw his pleas, Mr. Williams argues he is entitled to de novo
review because he raised a constitutional issue of whether his plea was adequately
informed, and therefore knowing and voluntary. Mr. Williams did move to withdraw his
pleas below; however, he did so for a different reason from the one he asserts on appeal.
We therefore apply the plain error standard to our review of Mr. Williams’ challenge to
the knowing and voluntary nature of his guilty plea. Duke v. State, 2009 WY 74, ¶ 22,
209 P.3d 563, 571 (Wyo. 2009). “‘Plain error exists when: 1) the record is clear about
the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule
of law; and 3) the party claiming the error was denied a substantial right which materially
prejudiced him.’” Nguyen v. State, 2013 WY 50, ¶ 10, 299 P.3d 683, 686 (Wyo. 2013)
(quoting Kidwell v. State, 2012 WY 91, ¶ 10, 279 P.3d 540, 543 (Wyo. 2012)); see also
W.R.Cr.P. 11(h) (“Any variance from the procedures required by this rule which does not
affect substantial rights shall be disregarded.”).

                                           DISCUSSION

I.   Did the district court adequately explain the nature of Mr. Williams’ third-degree
     sexual assault charge and obtain a sufficient factual basis for his guilty plea?

[¶12] Mr. Williams argues that he was not adequately informed of the third-degree
sexual assault charge to which he pled guilty and therefore his plea was not entered
knowingly and voluntarily. He claims the statutory language in the Information did not
contain the essential elements of the crime, instead “incorporat[ing] by reference a

3
  Wyo. Stat. Ann. § 6-2-304(a)(iii) (LexisNexis 2015) converts any of the circumstances of Wyo. Stat.
Ann. § 6-2-302(a)(i) through (iv) or Wyo. Stat. Ann. § 6-2-303(a)(i) through (vii) to third-degree sexual
assault where the circumstances involve sexual contact and not intrusion.


                                                   7
laundry list of possible circumstances that would render sexual contact criminal.” He
concedes that during a hearing in response to a motion for a bill of particulars, at which
he was present, the prosecutor stated the she intended to charge him under Wyo. Stat.
Ann. § 6-2-303(a)(ii).4 The charges remained unclear, argues Mr. Williams, because
during his plea hearing the district court merely recited the “laundry list” of possible
charges from the Information, and the elements of the charges were never explained to
him by the court, nor were they connected to the factual basis he provided for the plea.
Mr. Williams further argues that the factual basis he provided at the plea hearing does not
establish that he caused submission of A.S. “by any means that would prevent resistance
by a victim of ordinary resolution[.]” Wyo. Stat. Ann. § 6-2-303(a)(ii) (LexisNexis
2015).

A. Nature of the charge, W.R.Cr.P. 11(b)

 [¶13] A guilty plea is “a grave and solemn act to be accepted only with care and
discernment.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25
L.Ed.2d 747 (1970). Indeed, it “is more than a confession which admits that the accused
did various acts; it is itself a conviction[.]” Boykin v. Alabama, 395 U.S. 238, 242, 89
S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). Upon entering a guilty plea, the defendant
waives his Fifth Amendment right against compulsory self-incrimination and Sixth
Amendment right to a jury trial, Boykin, 395 U.S. at 243, 89 S.Ct. at 1712, and “[w]aivers
of constitutional rights not only must be voluntary but must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and likely consequences.”
Brady, 397 U.S. at 748, 90 S.Ct. at 1469. “Where a defendant pleads guilty to a crime
without having been informed of the crime’s elements, this standard is not met and the
plea is invalid.” Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S.Ct. 2398, 2405, 162
L.Ed.2d 143 (2005).

 [¶14] “[Wyoming Rule of Criminal Procedure] 11 is supposed to act as a guideline for
the courts in determining that a plea by a defendant is intelligent, knowing, and
voluntary, and that the plea has been entered with an understanding of the consequences.”
Ingalls v. State, 2002 WY 75, ¶ 11, 46 P.3d 856, 860 (Wyo. 2002). Under Rule 11(b),
“[p]rior to accepting a guilty plea, the district court must advise the defendant of ‘the
nature of the charge to which the plea is offered.’” Duke, 2009 WY 74, ¶ 23, 209 P.3d at
571 (quoting W.R.Cr.P. 11(b)(1)); see also Bousley v. United States, 523 U.S. 614, 618,
118 S.Ct. 1604, 1609, 140 L.Ed.2d 828 (1998) (“We have long held that a plea does not
qualify as intelligent unless a criminal defendant first receives ‘real notice of the true
nature of the charge against him, the first and most universally recognized requirement of



4
  Wyo. Stat. Ann. § 6-2-303(a)(ii) (LexisNexis 2015) provides: “The actor causes submission of the
victim by any means that would prevent resistance by a victim of ordinary resolution.”


                                                8
due process.’”) (quoting Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574
(1941)).5

[¶15] In McEwan v. State, 2013 WY 158, 314 P.3d 1160 (Wyo. 2013), we explained the
importance of the Rule 11 colloquy and advisements:

               Giving the required advisements and otherwise complying
               with Rule 11 may appear to be a tedious and repetitive
               process for trial judges, and we acknowledge that defendants
               are often inattentive and disinterested in the advisements.
               However, engaging them in dialogue as the rule requires
               creates a record establishing that the right to trial by jury and
               other rights associated with it have been relinquished
               knowingly and voluntarily, and it must be followed.

Id. at ¶ 20, 314 P.3d at 1167; see also Ingalls, 2002 WY 75, ¶ 11, 46 P.3d at 860 (“Strict
compliance with the rule is required to ensure due process of law[.]”).

[¶16] “‘We have no hard and fast rule regarding how much information is necessary to
explain the nature of a charge to a defendant.’” Mehring v. State, 860 P.2d 1101, 1107
(Wyo. 1993) (quoting Stice v. State, 799 P.2d 1204, 1209 (Wyo. 1990)). “In some
circumstances the court may discharge this obligation by simply reading the indictment
or information to the defendant and permitting him the opportunity to ask questions.”
Peper v. State, 768 P.2d 26, 29 (Wyo. 1989) (citing Bryan v. State, 745 P.2d 905, 907-08
(Wyo. 1987)). However, where the circumstances surrounding the plea agreement are
not simple and the elements are not self-explanatory, more explanation is required of the
court. Id. at 29-30. (“[I]t may be necessary to explain the elements of the crime and
define complex legal terms.”). “The actions required of the district court in any particular
case depend largely on whether the elements of the offense are difficult to understand,
considering both their complexity to the average person with no legal training and the
sophistication of the individual defendant.” Id. at 30 (citing Bryan, 745 P.2d at 907-08).

[¶17] In Ingalls, we reversed the defendant’s pleas because of a persistent lack of clarity
of the charges to which the defendant pled, and a lack of any record of the plea hearing.
2002 WY 75, ¶ 13, 46 P.3d at 861. We held that without a record, we were prevented
“from knowing whether the circuit court read or described the charges to Ingalls, whether
the circuit court advised Ingalls as to his rights and as to the consequence of his pleas,
whether the circuit court determined the voluntariness of the pleas, or whether the circuit
court determined the accuracy of the pleas.” Id. at ¶ 14, 46 P.3d at 861. We concluded

5
  Wyoming’s Rule 11 mirrors F.R.Cr.P. 11, and much of the jurisprudence used in interpreting the state
rule originates in federal case law. “[W]hen a federal rule of criminal procedure is similar to our
corresponding rule, we look to federal case law for guidance in interpreting our rule.” Smith v. State,
2008 WY 98, ¶ 9, 190 P.3d 522, 525 (Wyo. 2008).


                                                  9
that the “imprecision [in charging the defendant] carried over into the taking of [the]
pleas, and it is that imprecision that requires reversal of the Judgment and Sentence.” Id.

[¶18] In Peper, we acknowledged that the district court provided “only minimal help” in
explaining the charge of escape from official detention at the plea hearing, instead
eliciting the elements of the charge through the defendant’s own testimony. 768 P.2d at
30. Nevertheless, we concluded that “[v]iewing the arraignment proceeding as a whole,”
the court “sufficiently described the charge to appellant and sufficiently made him aware
of the specific conduct which led to that charge.” Id. Our conclusion rested on the
simplicity of the elements “conceptually and in the manner articulated by the
legislature[,]” and the “appellant had some college level education, and he had something
more than a passing exposure to the courtroom and the plea taking process.” Id.

[¶19] In Mehring, we acknowledged that the court’s failure to provide a complete
description of the elements at the plea hearing was not the best practice, but we also held
that “complete descriptions of the elements are not mandatory in accepting a plea[.]” 860
P.2d at 1108. See also Reyna v. State, 2001 WY 105, ¶¶ 9, 12, 33 P.3d 1129, 1133 (Wyo.
2001) (sufficient for the court to inform the defendant that he was charged with
conspiracy to commit forgery, without reading the statute or listing the elements of either
conspiracy or forgery, stating “change of plea hearing did not take place in a vacuum,”
and the “totality of the circumstances” indicated that the defendant was “an experienced
criminal,” “represented by an experienced public defender who reviewed the evidence
and plea options with him.”).

[¶20] In Mr. Williams’ case, the district court’s advisement of the elements was
certainly not complete. The advisement should have stepped through each element of the
crime, and provided a definition of the more complex elements. However, although the
charge that included ten possible statutory provisions lacked clarity, Mr. Williams was
present at the hearing on his motion for a bill of particulars, at which the State clarified
that it would be charging Mr. Williams under Wyo. Stat. Ann. § 6-2-303(a)(ii).
Furthermore, at the plea hearing, in response to questions from the district court, Mr.
Williams asserted that he had discussed his plea with counsel and that he was satisfied
with the advice his counsel had given him. “Despite the fact that the trial court did not
inquire if the discussions with counsel included descriptions of the elements of [the crime
charged], we may apply the presumption that they did.” Mehring, 860 P.2d at 1108
(citing Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108
(1976)); see also United States v. Weeks, 653 F.3d 1188, 1198 (10th Cir. 2011) (applying
the presumption that defendant’s attorney explained the elements of the charge against
him); Hicks v. Franklin, 546 F.3d 1279, 1284 (10th Cir. 2008) (stating the presumption
that the attorney explained the elements will not be applied unless there is a factual basis
in the record to support it). Considering the totality of the circumstances, including the
fact that Mr. Williams was present at the hearing when the State specified the charge
against him and his statement that counsel had discussed his plea agreement with him, we


                                            10
conclude that Mr. Williams had sufficient information to understand the nature of the
charge against him, and we find no transgression of a clear and unequivocal rule of law.

B. Factual basis for the plea, W.R.Cr.P. 11(f)

[¶21] Mr. Williams next argues that he did not provide a factual basis sufficient to
support his guilty plea. “Notwithstanding the acceptance of the plea of guilty, the court
should not enter a judgment upon such plea without making such inquiry as shall satisfy
it that there is a factual basis for the plea.” W.R.Cr.P. 11(f). “The district court must be
satisfied that the appellant possessed an understanding of the law and its relation to the
facts of his case.” Peper, 768 P.2d at 29. In Nguyen, we explained:

              The intent of the procedural requirement of a factual basis is
              to prevent the individual charged with a crime from being
              misled into a waiver of substantial rights. Sami v. State, 2004
              WY 23, ¶ 9, 85 P.3d 1014, [1017] (Wyo. 2004). A sufficient
              inquiry to obtain a factual basis includes a determination that
              the defendant understood his conduct, in light of the law, to
              be criminal. Id. However, the factual basis for accepting a
              plea may be inferred from circumstances surrounding the
              crime and need not be established only from the defendant’s
              statements. Id. W.R.Cr.P. 11 does not require proof beyond
              a reasonable doubt that a defendant who pleads guilty is
              actually guilty nor does it require complete descriptions of the
              elements.

2013 WY 50, ¶ 11, 299 P.3d at 686 (quoting Maes v. State, 2005 WY 70, ¶ 21, 114 P.3d
708, 714 (Wyo. 2005)). The factual basis inquiry “should protect a defendant who is in
the position of pleading voluntarily with an understanding of the nature of the charge but
without realizing that his conduct does not actually fall within the charge[.]” Van Haele
v. State, 2004 WY 59, ¶ 13, 90 P.3d 708, 712 (Wyo. 2004) (quoting Wayne R. LaFave &
Jerold H. Israel, Criminal Procedure 938 (2d ed. 1992)).

[¶22] In Sami v. State, 2004 WY 23, ¶ 10, 85 P.3d 1014, 1018 (Wyo. 2004), we
articulated the scope of information available to the court for establishing a factual basis
prior to acceptance of a plea:

              A record composed of the defendant’s testimony and
              admissions and/or the state’s presentation of evidence
              discloses a factual basis. The trial judge may properly draw
              inferences from the defendant’s admissions or the evidence
              presented by the state to satisfy all elements of the crime to
              which the defendant is pleading guilty.


                                            11
[¶23] In order to establish a factual basis for Mr. Williams’ guilty plea, the district court
needed to elicit testimony from Mr. Williams or receive evidence from the State to satisfy
the element of “causes submission of the victim by any means that would prevent
resistance by a victim of ordinary resolution.” Wyo. Stat. Ann. § 6-2-303(a)(ii).

[¶24] We addressed this element in Wilson v. State, 655 P.2d 1246 (Wyo. 1982), an
appeal from a jury conviction for second-degree sexual assault under the same subsection
at issue here. At trial, the victim reported that she was forcibly abducted from her yard,
then driven to a park where she was strangled and raped. Id. at 1255. This Court upheld
the conviction, relying on the disparate relationship between the victim and her attackers:

               Even if the victim here were not handicapped by a degree of
               deafness and mental retardation, her odds of putting up any
               effective resistance were practically nil. She was a very small
               woman of childlike proportions. The disparity in her physical
               strength compared to the superior strength of her aggressors
               would create reasonable fear and apprehension and
               discourage resistance by any reasonable person; this is more
               consistent with submission rather than consent.

Id. at 1258.

[¶25] Mr. Williams stated that he had been acquainted with A.S. for over a year; he went
to her residence in response to a phone call inviting him over; Mr. Williams believed A.S.
was interested in “more of an intimate relationship”; A.S. was breathing supplemental
oxygen and in bed, naked under the covers; she lowered the blanket to expose her chest
and breast area so that Mr. Williams could rub her chest; Mr. Williams massaged her
chest above her breast and then touched her breast; she told him to stop and he stopped;
and Mr. Williams apologized for his actions and left. None of these facts support the
element of “causes submission of the victim by any means that would prevent resistance
by a victim of ordinary resolution.” Wyo. Stat. Ann. § 6-2-303(a)(ii). Indeed, Mr.
Williams described a situation where A.S. told him to stop and he immediately withdrew
his contact and offered an apology for overstepping his bounds. Mr. Williams provided
no facts showing that he took any action that would have prevented a victim of ordinary
resolution from resisting. We conclude the district court failed to establish a factual basis
for the third-degree sexual assault charge prior to accepting Mr. Williams’ guilty plea,
and therefore committed a transgression of a clear and unequivocal rule of law.

[¶26] Under our plain error analysis, we must consider whether the district court’s
failure to establish a factual basis under W.R.Cr.P. 11 denied Mr. Williams a substantial
right which materially prejudiced him. To make that determination, we review the entire
record. In Nguyen, we adopted the Tenth Circuit’s scope of record review when


                                             12
determining whether a Rule 11(f) deviation resulted in a denial of a substantive right
materially prejudicing the defendant:

              In [United States v.] Landeros-Lopez, 615 F.3d [1260,] 1263-
              64 [10th Cir. 2010], the Tenth Circuit also ruled that in
              determining whether the factual basis was sufficient to justify
              the district court’s acceptance of the guilty plea, the
              reviewing court may consider only the information in the
              record at the time the plea was accepted. However, in
              deciding whether an error in accepting a guilty plea without a
              sufficient factual basis affected the defendant’s substantial
              rights, the entire record may be considered. Id. The Tenth
              Circuit indicated the district court erred by accepting the
              factual basis, but ruled the defendant was not prejudiced
              because the entire record, particularly the presentence
              investigation report, provided a sufficient factual basis to
              support his guilty plea. Id.

Nguyen, 2013 WY 50, ¶ 19, 299 P.3d at 689; see also United States v. Vonn, 535 U.S. 55,
58-59, 122 S.Ct. 1043, 1046 (2002) (When a defendant is silent regarding a Rule 11
error, he then has the burden of satisfying the “plain-error rule and . . . a reviewing court
may consult the whole record when considering the effect of any error on substantial
rights.”).

[¶27] Here, our review of the record reveals sufficient support for the plea. In
discussing the nolo contendere plea, the prosecutor set forth an extensive description of
A.S.’s infirmities. See supra ¶ 7. At the sentencing hearing, Mr. Williams discussed
numerous corrections he wished to make to the Criminal History in his PSI. Although
the Criminal History described the incident with A.S., stating that Williams touched
A.S.’s breasts, chest, abdomen and vaginal area, and that “she felt scared and ‘kept him
talking’ because she didn’t know what to do[,]” Mr. Williams had no correction to this
description of his actions. The PSI also incorporated the affidavit of probable cause, and
Mr. Williams was provided the opportunity to contest the statements given to the police
by A.S. and her physician referenced therein at his sentencing but failed to do so. See
Deeds v. State, 2014 WY 124, ¶ 26, 335 P.3d 473, 480 (Wyo. 2014) (Defendant’s due
process right was not violated when he had the opportunity to contest information
contained in the PSI but failed to do so.). Those statements indicate that Mr. Williams,
without permission, entered the home of A.S. on October 26, 2012; he got into bed with
her; he used his hands to make contact with A.S.’s breasts and vaginal area; A.S. was
“scared” and stayed on her back the entire time with her oxygen mask on; she did not
want him to hurt her, so she never told him to stop or tried to fight back; and she was
afraid to get up quickly because of her heart condition. Other facts in the affidavit
incorporated into the PSI indicate that A.S. is unstable and has very poor balance; she has


                                             13
no peripheral vision; and she can’t walk anywhere without oxygen and becomes “hypoxic
with exertion.”

[¶28] A.S.’s considerable infirmities created significant physical disparity between her
and Mr. Williams. If a victim similar to A.S. were confronted in bed by an assailant
similar to Mr. Williams, it would not be unreasonable for such confrontation to “create
reasonable fear and apprehension and discourage resistance by any reasonable person[.]”
See Wilson, 655 P.2d at 1258. We therefore conclude that there were sufficient facts in
the record to support the elements of third-degree sexual assault under Wyo. Stat. Ann.
§ 6-2-303(a)(ii). Mr. Williams was not materially prejudiced by the district court’s
failure to establish a sufficient factual basis at the plea hearing. Thus, there was no plain
error, and we affirm his guilty plea to third-degree sexual assault.

II. Did the district court adequately explain the nature of Mr. Williams’ abuse of a
    vulnerable adult charge and obtain a sufficient factual basis for his nolo
    contendere plea?

A. Nature of the charge, W.R.Cr.P. 11(b)

[¶29] Mr. Williams argues that the elements of sexual abuse of a vulnerable adult were
not adequately explained during the Rule 11 colloquy on his plea of nolo contendere. He
claims the district court should have defined the terms “abuse” and “vulnerable adult,”
and without such information he did not understand the nature of the charge. As we
noted in Peper, 768 P.2d at 29, a district court may need to define complex legal terms in
the course of explaining the nature of the charges. Here, we do not find the terms overly
complex. A person of Mr. Williams’ intelligence, represented by counsel, could easily
determine the meaning of those terms without the assistance of the district court. Id. at
30. As discussed, see supra ¶ 20, Mr. Williams stated he had discussed his plea with
counsel, and we apply the presumption that his counsel explained the elements of the
crime to which he was pleading. The district court established that Mr. Williams made
sexual contact with A.S. without her permission, and that she was lying in bed, on
oxygen, and recovering from surgery at the time.

              Viewing the arraignment proceedings as a whole, we hold the
              district court sufficiently described the charge to appellant
              and sufficiently made him aware of the specific conduct
              which led to that charge. By eliciting that he had, without
              permission, terminated his court-ordered residency at the
              community correctional facility and failed to return to that
              facility, the district court assured that appellant was not
              misled as to the nature of the charges against him. The
              elements of the offense are quite simple, both conceptually
              and in the manner articulated by the legislature.


                                             14
Peper, 768 P.2d at 30. We find, as we did in Peper, that the district court elicited the
necessary facts and that Mr. Williams was adequately informed of the charges against
him. Accordingly, there was no transgression of a clear and unequivocal rule of law.

B. Factual basis for “nolo” plea

[¶30] Regarding Mr. Williams’ argument that the district court failed to establish a
factual basis for his nolo plea, we note that a nolo contendere plea is distinct from a
guilty plea in that the defendant entering such a plea neither admits nor disputes the
charges against him. From this premise, we have stated that “a factual basis is
unnecessary upon acceptance of a nolo contendere plea, so long as the charging
document, whether it be an information, indictment, or other charging form, contains an
accurate and complete statement of all the elements of the crime charged.” Van Haele,
2004 WY 59, ¶ 13, 90 P.3d at 712 (citing Peitsmeyer v. State, 2001 WY 38, ¶ 7, 21 P.3d
733, 734 (Wyo. 2001)).

[¶31] Because Mr. Williams pled nolo contendere to the abuse of a vulnerable adult
charge, the district court was only required to ensure that the Information contained an
accurate and complete statement of all the elements of the crime charged. Id. Count III
of the Information states: On or about the 26th day of October, 2012, intentionally abused
a vulnerable adult, namely: A.S., contrary to W.S. §6-2-507(a)            ABUSE OF A
VULNERABLE ADULT[.]” The Information accurately and completely stated that on
October 26, 2012, Mr. Williams intentionally or recklessly abused, neglected, abandoned,
intimidated, or exploited a vulnerable adult, and therefore the district court was not
required to establish a factual basis. 6 We find no plain error.

[¶32] We conclude that the district court adequately described the nature of the abuse of
a vulnerable adult charge, and furthermore, because it accurately and completely recited
the elements of the charge, no factual basis was necessary.

                                          CONCLUSION

[¶33] Mr. Williams was adequately informed of the nature of his third-degree sexual
assault charge prior to entering his guilty plea. While the district court failed to establish
a sufficient factual basis for the guilty plea at the plea hearing, additional evidence in the
record supports a factual basis for third-degree sexual assault, and we therefore affirm
Mr. Williams’ guilty plea. Regarding Mr. Williams’ nolo contendere plea for abuse of a
vulnerable adult, we find the district court adequately explained the nature of the charge,


6
  A factual basis could additionally be found in the affidavit of probable cause and the additional facts
regarding A.S.’s status as a vulnerable adult that were provided by the prosecutor.


                                                   15
and because it accurately and completely recited the elements of the charge, no other
factual basis was necessary prior to accepting the plea.

[¶34] We affirm.




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