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 

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SUMMARY DISPOSITION 

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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 posttrial 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 

2 

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. 
BRISCOE—ARMY 20170302 

3 

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 . . . .” 
BRISCOE—ARMY 20170302 

4 

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. 
BRISCOE—ARMY 20170302 

5 

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 COURT: 

JOHN P. TAITT 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: