UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           BURTON, HAGLER, and FLEMING
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                 Private First Class DARRELL K. BRISCOE JR.
                          United States Army, Appellant

                                  ARMY 20170302

                     Headquarters, United States Army Alaska
              Kenneth Shahan and Lanny J. Acosta, Jr., Military Judges
                Colonel Roseanne M. Bennett, Staff Judge Advocate


For Appellant: Colonel Elizabeth G. Marotta, JA; Major Julie L. Borchers, JA (on
brief); Colonel Elizabeth G. Marotta, JA; Lieutenant Colonel Tiffany D. Pond, JA;
Major Julie L. Borchers, JA (on reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Catharine M. Parnell, JA; Captain Allison L. Rowley, JA (on brief).

                                      9 July 2019

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

        In this appeal we address appellant’s assertions that his plea of guilty to
sexual assault was improvident and that he should receive relief due to dilatory post-
trial processing by the government. While we find neither allegation of error
warrants relief, we take this opportunity to briefly address appellant’s improvidence
claim.

       A military judge sitting as a general court-martial convicted appellant, in
accordance with his pleas, of once specification each of violating an order from a
superior commissioned officer, fleeing apprehension, and sexual assault, in violation
of Articles 92, 95 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 895,
920 (2012) [UCMJ]. 1 The military judge sentenced appellant to a dishonorable

1
 We do not discuss the facts and circumstances surrounding the Article 92, UCMJ,
or Article 95, UCMJ, charges as we find appellant’s pleas of guilty to these offenses
provident.
BRISCOE—ARMY 20170302

discharge and confinement for twenty-four months, a sentence later approved by the
convening authority. This case is before us for review pursuant to Article 66,
UCMJ.

                                 BACKGROUND

       On 9 September 2016, appellant, Airman First Class (A1C) MW, and Private
First Class (PFC) PM went to another Soldier’s home to watch football. The
attendees drank and played games into the evening. Airman First Class MW, PFC
PM, and appellant stayed overnight. They resumed drinking the next morning, and
at around 2200 hours, A1C MW passed out in a bathroom after consuming roughly
ten to fifteen beers. Private First Class PM, her then-boyfriend, put A1C MW to bed
on an air mattress in an upstairs bedroom and returned to the gathering downstairs.

       After PFC PM returned, appellant went upstairs to use the restroom. On his
way, he entered the bedroom where A1C MW was sleeping, closed the door, and laid
down next to A1C MW. Appellant kissed A1C MW on the mouth, pulled down her
shorts and underwear, and then penetrated her vulva with his tongue. After hearing
a noise, appellant left the room and went to the restroom.

       The government charged appellant under three theories of sexual assault under
Article 120, UCMJ. Pursuant to a pretrial agreement, appellant pleaded guilty to
violating Article 120(b)(2), UCMJ, by committing a sexual act on A1C MW when
appellant knew or reasonably should have known she was unaware that the sexual
act was occurring due to her intoxication. 2

       Appellant asserts the government used a novel theory under Article 120(b)(2),
UCMJ, which caused confusion among the trial participants, thus rendering his
guilty plea improvident. Specifically, appellant argues that by alleging A1C MW
was “unaware” of the sexual act due to her intoxication, the government appeared to
blend the theories of liability under Article 120(b)(2), UCMJ, with Article
120(b)(3), which involves a victim incapable of consent due to intoxication.
Appellant further asserts he did not admit facts sufficient to establish A1C MW was
unaware the sexual act was occurring. We disagree on both points, as discussed
below.




2
  The other two specifications alleged, respectively, that appellant committed a
sexual act on A1C MW by causing her bodily harm (Article 120(b)(1)(B)), and
committing a sexual act on A1C MW when she was asleep (Article 120(b)(2)). After
the plea inquiry but before entry of findings, the military judge dismissed these
specifications with prejudice.


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BRISCOE—ARMY 20170302

                             LAW AND DISCUSSION

       We review a military judge’s acceptance of a guilty plea for an abuse of
discretion and questions of law arising from the plea de novo. United States v.
Murphy, 74 M.J. 302, 305 (C.A.A.F. 2015) (citing United States v. Inabinette, 66
M.J. 320, 322 (C.A.A.F. 2008)). An abuse of discretion occurs when a military
judge fails to obtain from an accused an adequate factual basis to support the plea or
has an erroneous view of the law. Inabinette, 66 M.J. at 322 (citations omitted). We
will not disturb a guilty plea unless appellant demonstrates a substantial basis in law
or fact for questioning the plea. Id. (citation omitted).

       As an initial matter, we acknowledge that Article 120(b)(3), UCMJ, may have
been an appropriate charge in this case, based upon A1C MW’s inability to consent
due to intoxication. However, that does not mean appellant could not plead guilty to
a violation of Article 120(b)(2), UCMJ.

       Article 120(b)(2), UCMJ, provides, in relevant part, any person who “commits
a sexual act upon another person when the person knows or reasonably should know
that the other person is asleep, unconscious, or otherwise unaware that the sexual act
is occurring” is guilty of sexual assault. Our superior Court has recognized this
provision presents three discrete theories of criminal liability, one of which requires
that the accused knew or reasonably should have known the victim was unaware of
the sexual act. See United States v. Sager, 76 M.J. 158, 162 (C.A.A.F. 2017). Thus,
being asleep or unconscious are not examples of how an alleged victim may be
unaware for purposes of this provision. Id. As our court has put it, “‘[O]therwise
unaware’ means a victim who is unaware that the sexual contact is taking place for
reasons different than the victim being asleep or unconscious.” United States v.
Brantley, ARMY 20150199, 2017 CCA LEXIS 742, *7 (Army Ct. Crim. App. 30
Nov. 2017) (emphasis in original). In our view, intoxication by alcohol that renders
a victim unaware of her surroundings may, under the circumstances, be different
than being asleep or unconscious. Appellant’s providence inquiry adequately
establishes such circumstances in this case.

       Although the charging decision made the providence inquiry difficult to
follow at times, we do not find it caused enough confusion to render appellant’s plea
improvident. At the outset, the military judge provided appellant the elements and
definitions for Article 120(b)(2). See Dep’t of Army Pam. 27-9, Legal Services:
Military Judges’ Benchbook, para. 3-45-15 (10 Sept. 2014) [Benchbook]. While
consent was not an element of this offense, the military judge also provided
appellant with a definition of consent, explaining that a sleeping or unconscious
person is unable to consent, and, later, “[a] person is incapable of consenting when
they lack the cognitive ability to appreciate the sexual conduct in question . . . .”




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BRISCOE—ARMY 20170302

       Appellant explained that after entering the room, he attempted to wake up
A1C MW. Appellant initially told the military judge A1C MW was awake because
she made eye contact with appellant, although appellant acknowledged she made “no
verbal indication of being fully aware at the time.” Appellant explained he kissed
MW on the cheek, and she then rolled away from appellant. Appellant then pulled
down A1C MW’s pants and performed oral sex on her. He said he believed she was
awake because of the eye contact.

      During this exchange, the military judge asked appellant if A1C MW was able
to consent. Appellant acknowledged she was not capable due to her intoxication.
Appellant also acknowledged that even though he thought A1C MW had awakened,
she was unaware of what he was doing. Later, the following exchange occurred:

             MJ: So even though she—earlier you stated that you think
             she woke up but do you believe she was unaware?

             A: Yes, your honor.

             MJ: So, you don’t think that she knew what was going on
             at the time that you committed the sexual act upon her?

             A: No, Your Honor, I do not.

Appellant further explained that after he kissed A1C MW on the cheek, before
performing oral sex on her, she rolled away from him. Appellant stated that A1C
MW started moving when he performed oral sex on her, which could have been her
reacting to the “sensation of pleasure.”

       Not long after this exchange, the military judge expressed some concern that
the government was alleging a hybrid of two different theories in the charge, those
being that appellant knew or should have known A1C MW was unaware of the
sexual contact and that A1C MW was incapable of consent. Trial counsel responded
that the specification covered the first theory and that alcohol intoxication was the
mechanism by which A1C MW was unaware. The military judge then expressed his
concern whether appellant actually believed, or knew or should have known, A1C
MW was unaware of the sexual act.

      Following a recess, the military judge again instructed appellant on consent,
noting that a sleeping, unconscious, or incompetent person cannot consent to a
sexual act. Given appellant’s admitted intoxication during the incident, the military
judge also instructed him on the defense of mistake of fact. Appellant
acknowledged that he believed or should have believed A1C MW was unaware of the
sexual act and, further, that she did not know what was going on.




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BRISCOE—ARMY 20170302

       In a guilty plea case, a military judge must resolve inconsistencies and
possible defenses in order to accept a plea. United States v. Outhier, 45 M.J. 326,
331 (C.A.A.F. 1996) (citation omitted). “Mere conclusions of law recited by an
accused are insufficient to provide a factual basis for a guilty plea.” Id. Here, we
do not find appellant was merely reciting legal conclusions to the military judge. On
the contrary, appellant stated or acknowledged no fewer than seven times that he
knew or should have known A1C MW was unaware or did not know what was going
on at the time of the assault. The facts elicited during the providence inquiry (e.g.,
no prior relationship between appellant and A1C MW, both parties intoxicated, A1C
MW’s eye contact at times) support appellant’s admissions that she was unaware the
sex act was occurring. We do not find a substantial basis in law or fact to upset
appellant’s plea.

                                  CONCLUSION

      The findings and sentence are AFFIRMED.

                                           FOR THE
                                           FOR THECOURT:
                                                   COURT:



                                           JOHN P. TAITT
                                           Chief
                                           JOHNDeputy Clerk of Court
                                                 P. TAITT




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