Wyoming AG Defends Tony Cercy Conviction, Sentence
The state district court properly conducted the sexual assault trial of former Casper businessman Tony Cercy, according to the Wyoming Attorney General's document filed with the Wyoming Supreme Court on Friday.
The Attorney General's Office is defending the Hot Springs and Natrona County district courts -- both presided over by Judge Daniel Forgey -- in their actions during Cercy's trial in November on one count of third-degree sexual assault of a 20-year-old woman at his former home at Alcova in 2017.
Cercy was tried first in in Natrona County District Court in Casper in February 2018 on counts of first- (rape), second- and third-degree sexual assault.
The jury acquitted him of the first two counts, but deadlocked on the third-degree count. Cercy moved for a mistrial and tried to limit issues at retrial, but Forgey denied those requests, according to the Wyoming Attorney General's filing.
Forgey then declared a mistrial.
In the second trial in Hot Springs County, the jury found him guilty of the third-degree count. Forgey sentenced him in February to a six- to eight-year prison term.
Cercy, in his appeal to the Supreme Court argued the acquittals in the first trial automatically meant that he did not commit the third-degree count involving cunnilingus, so the retrial violated his Fifth Amendment's right to not be tried twice for the same crime, known as double jeopardy.
Cercy, through his attorneys, also argued that the victim described an act of oral sex that as a matter of law could never be third-degree sexual assault.
Finally, he asked the high court to determine whether the state district court properly refused to instruct the jury that third-degree sexual assault excludes cunnilingus: that the second jury could not convict Cercy for conduct that was acquitted in the first trial; and that the jurors had to be required to unanimously agree about the specific sexual act.
However, the Wyoming Attorney General responded that Cercy himself consented to be tried again when he moved for a mistrial in the first trial in February 2018. "This Court may summarily dismiss Cercy's issue-preclusion double jeopardy argument because he voluntarily surrendered his rights."
Regarding Cercy's argument about the nature of the sexual assault, the Attorney General responded that the prosecution presented sufficient evidence to show that Cercy did have sexual contact with the victim -- who was helpless because she was passed out -- either by removing her clothes, touching her with his penis, or touching her genitalia with his face.
Finally, the Attorney General supported the district court's refusal to give the jury three specific instructions because they "would have misstated the law or seriously confused the issues."
The court was right to not require the jury to unanimously agree on the act of sexual contact because it could "multiple theories or facts that could satisfy an element of a crime," according to the Attorney General.
"For the foregoing reasons, the State of Wyoming respectfully requests that Cercy's conviction and sentence be affirmed in all respects."