## UNITED STATES ARMY COUR T 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, J r., Military Judges
Colonel Roseanne M. Bennett, Staff Judge Advocate

For Appellant: Colonel Elizabet h G. Marotta, JA; Major Julie L . Borchers, JA (on brief); Colonel Elizabeth G. Mar otta, JA; Lieutenant Colonel Ti ffany D. Pond, JA; Major Julie L. Borchers, JA (on reply brief).

For Appellee: Colonel Steven P. H aight, 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 a nd that he should receive relie f due to dilatory posttrial processing by the government . While we find neither alle gation of error warrants relief, we take this opp ortunity to briefly address ap pellant’s improvidence
claim.

A military judge sitti ng as a general court-martial convicted a ppellant, in accordance with his pl eas, of once specific ation each of violat ing an order from a superior commissioned officer, f leeing apprehens ion, and sexual assault, in violation of Articles 92, 95 a nd 120, Uniform Code of Military Justice, 1 0 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 circumstan ces surrounding the Article 92, UCMJ, or Article 95, UCMJ, charges as we find appellant’s pleas of gu ilty to these offenses provident.BRISCOE—ARMY 20170302

2 discharge and confinement for tw enty-four months , a sentence la ter approv ed by the convening authority. This case is before us for review pursuan t to Article 66,

UCMJ.

BACKGROUND

On 9 September 2016, appe llant, Airman First C lass (A1C) MW, an d Private First Class (PFC) PM went to ano ther Soldier’s home to watch fo otball. The attendees drank and pla yed games into the evening. Airman Firs t Class MW, PFC PM, and appellant stay ed overnight. They resumed drinking the next morning, and

at around 2200 hour s, A1C MW passed out i n a bathroom after con suming roughly

ten to fifteen beers. Private F irst Class PM, her then-boyfrie nd, put A1C MW to bed

on an air mattress in a n upstairs bedroom a nd returned to the g athering downstairs.

After PFC PM returned, appellant went upstairs to use the restr oom. On his way, he entered the bedroom where A1C MW was sleeping, closed t he door, and laid

down next to A1C MW. A ppellant kissed A1C M W on the mouth, pul led down her shorts and underwear, and then pe netrated her vulva with his to ngue. After hearing a noise, appella nt left the room and w ent to the restroom.

The government charged appellant under three theories of sexual assault under Article 120, UCMJ. Pursuant to a pretrial agr eement, appellant pleaded guilty to violating Article 120(b)(2), UC MJ, by committing a sexual act o n A1C MW when appellant knew or re asonably shoul d have known she was unaware that the sexual

act was occurr ing due to her intoxication. 2

Appellant asserts the government used a novel theory under Arti cle 120(b)(2), UCMJ, which caused confusion am ong the trial par ticipants, thus rendering his guilty plea improvident. Specifi cally, appellant argues that b y alleging A1C MW
was “unaware” of the sexual act due to her intoxication, the go vernment appeared to
blend the theories o f liability under Artic le 120(b)(2), UCMJ, with Article 120(b)(3), which invo lves 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 ac t was occurring. We disagree o n both poin ts, as discussed
below.

2 The other two specifi cations alleged, resp ectively, that appel lant committed a sexual act on A1C MW by causing her bodily harm ( Article 120(b) (1)(B)), and committing a sexual ac t on A1C MW when she w as asleep (Article 120(b)(2)). After the plea inquiry but b efore entry of findi ngs, the military jud ge dismissed these specifications wit h prejudice.BRISCOE—ARMY 20170302

3 LAW AND DISCUSSION

We review a military judge’s acceptance of a guilty plea for a n abuse of discretion and questi ons of law arising fro m 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 ab use of discretion occurs when a military judge fails to obtain from an acc used an adequate factual basis to support th e plea or
has an erroneous view of the law. Inabinette , 66 M.J. at 322 (cita tions omitted). We will not disturb a gu ilty plea unless appellant demonstrates a substantial ba sis in law or fact for questio ning the plea. Id. (citation omitted).

As an initial matter, we acknowledge that Article 120(b)(3), UC MJ, may have been an appropriate charge in th is case, based up on A1C MW’s in ability to consent
due to intoxicati on. However, that does n ot mean appe llant cou ld 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 anoth er person when the person knows or reaso nably should know that the other person is asleep, unconscio us, or otherwise unaw are that the sexual act is occurring” is guilt y of sexual assault. Our superior Court has recognized this provision presents three discrete theories of criminal liabilit y, one of which requires
that the accused knew or reasonably should h ave known the victi m 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 unco nscious are not examp les 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 vict im who is unaware tha t the sexual contact is taking place for

reasons different than the victim being asle ep 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 b y alcohol th at renders
a victim unaware of her surrou ndings may, under t he circumstanc es, be different than being aslee p or unconscious. Appella nt’s providence inqui ry adequately
establishes such circumstances in this case.

Although the char ging decision ma de the providenc e inquiry dif ficult to follow at times, we do not find it caused enough confusion to r ender appellant’s plea improvident. At the outset, the military judge provided appell ant the elements and definitions for Article 120(b)(2). See Dep’t of Army Pam. 27-9, Legal Services: Military Judges’ Benc hbook, para. 3-45-15 (10 Sept. 2014) [Benc hbook]. While
consent was not an ele ment of this offense , the military judge also provided appellant with a definition of c onsent, explainin g that a sleep ing or unconscious person is unable to consent, an d, later, “[a] person is incapab le of consenting when they lack the cognitive ability to appreciate the sexual conduc t 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 appell ant, although appe llant acknowl edged she made “no
verbal indication of being fully aware at the time.” Appellant explained he kissed MW on the cheek, and she then rol led away from appellant. Appe llant then pulled down A1C MW’s pants and perfor med oral sex on her. He said he believed she was
awake because of t he eye contact.

During this exchange, t he military judge as ked appellant if A1C MW was able to consent. Appella nt acknowledged she was not capable due to her intoxi cation. Appellant also acknow ledged that eve n though he thought A1C MW had awakened,
she was unaware of what he was doing. Later, the following exc hange occurred:

MJ: So even though she—earlie r you stated th at you think she woke up but do you bel ieve she was unaware?

A: Yes, your honor.

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

A: No, Your Hono r, I do not.

Appellant further expl ained that after he kissed A1C MW on the cheek, before performing oral sex o n her, she rolled away f rom him. Appellan t stated that A1C MW started moving when he performed o ral sex on her , which coul d have been her reacting to the “sensation of pleasure.”

Not long after this e xchange, the military judge expressed some concern that the government was alleging a h ybrid of two different theories in the charge, those being that appellant knew or s hould have known A 1C MW was unawa re of the sexual contact and that A1C MW was incapable of consent. Trial counsel responded that the specification covered the first theory and that alcoho l intoxication was the mechanism by which A1C MW was un aware. The milit ary judge then expressed his concern whether appellant actua lly believed, or knew or should have known, A1C
MW was unaware of t he sexual act.

Following a rece ss, the military judge again instructed appella nt on consent, noting that a sleepin g, unconscious, o r incompetent person cann ot consent to a sexual act. Given appellant’s a dmitted intoxicati on during the incident, the military judge also instructed him on th e defense of mis take of fact. A ppellant acknowledged that he believed or should h ave believed A1C MW wa s unaware of the sexual act and, further, that s he did not know w hat was going o n.BRISCOE—ARMY 20170302

5 In a guilty plea case, a military judge must resolve inconsiste ncies and possible defenses in order to accept a plea. United States v. Outhier , 45 M.J. 326, 331 (C.A.A.F. 1996) (citation omitt ed). “Mere conclusions of l aw recited by an accused are insufficient to provide a factual basis for a guilt y plea.” Id. Here, we do not find appellant was merel y reciting legal c onclusions to the military judge. On the contrary, appellant state d or acknowledged no fewer than se ven times that he
knew or should have know n A1C MW was unaware or did not know wh at was going
on at the time of the assault. The facts elicited during the p rovidence in quiry (e.g., no prior relationship between appell ant and A1C MW, both partie s intoxicated, A1C MW’s eye contact at ti mes) support appellan t’s admissions that she was unaware the sex act was occurring. We do not find a substant ial basis in l aw 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: