Judge Allows Most Phone Data To Be Used In Trial Of Casper Businessman Tony Cercy
A judge ruled the prosecution will be able to use most, but not all, of the information downloaded from the cell phone of Casper businessman Tony Cercy, who goes on trial next week on three counts of sexual assault.
During an afternoon-long motions hearing Wednesday, Natrona County District Court Judge Daniel Forgey also allowed an expert witness, a psychologist, to be questioned by the prosecution over the objections of Cercy's attorneys.
At one point, the judge closed the courtroom for a discussion of confidential evidence.
Forgey's oral ruling came four weeks after a Jan. 8 hearing that addressed other motions dealing first with whether the hearing itself should be open to the public, the number of potential jurors that will be called for the trial, a juror questionnaire, and whether a video re-enactment of the alleged crime -- created by the defense -- would be admitted during the trial set for Feb. 12-20.
The judge already had ruled on those issues.
But Forgey wanted more time to look at the motion about the cell phone because it dealt with some issues at the intersection of the law and rapidly advancing technology.
Cercy is charged with one count of first-degree sexual assault (rape), one count of second-degree sexual assault (intrusion), and one count of sexual contact "without inflicting sexual intrusion and without causing serious bodily injury."
If convicted on all counts, Cercy faces between seven and 85 years of imprisonment.
According to court records, the alleged 20-year-old victim went into Cercy's residence at Alcova Lake and passed out on the couch in the middle of the living room on the night of June 24.
She woke up, looked down and saw a drunk Cercy performing oral sex. She pushed him away and asked what he was doing, and he responded he was trying to "'get some action'" from her for the last hour with his "'tongue and "d---,'" according to the affidavit.
Nearly all of her clothing had been removed and Cercy was naked from the waist down.
Four days after the alleged assault, Cercy called the woman when her father was present. The father responded on the cell's speaker phone and told Cercy to not call her again.
After that, investigators obtained a search warrant and seized Cercy's phone, and a Wyoming Division of Criminal Investigation agent helped conduct a search, according to court records.
The search revealed a list of numbers called between June 24 and 28, phone and text messages during that time, and the activation of the phone's video feature early morning of June 25.
Cercy's attorneys argued the affidavit asking a circuit court judge for a search warrant did not have sufficient facts to establish a crime had been committed, and there were no facts showing the June 28 phone call was evidence -- a "nexus" -- of the alleged assault.
The warrant also was too broad and did not limit what the prosecution was seeking, according to the attorneys.
But District Attorney Mike Blonigen responded that this sort of search warrant needs to be broad because the files sought might not be immediately apparent. A nexus existed because Cercy called the alleged victim.
Wednesday, Forgey said he would allow the most of the downloaded information.
However, the judge did not allow one communication to be submitted at the trial, "a voice mail by the defendant's wife that things were 'hitting the fan,' so to speak," he said.