Casper Businessman Tony Cercy Asks Court To Dismiss Sexual Assault Case
The defense team for Casper businessman Tony Cercy contends that his upcoming trial on one count of third-degree sexual assault violates his constitutional right to not be tried twice -- double jeopardy -- for the same crime, specifically oral sex, according to a motion to dismiss the case filed Friday.
"Double jeopardy bars the State's attempt to re-prosecute Mr. Cercy for conduct on which the jury has already found in his favor," according to his attorneys Pamela Mackey of Denver and Ian Sandefer of Casper.
Natrona County District Attorney Mike Blonigen said his office soon will be filing a response to the motion to dismiss.
At the end of an eight-day trial in February, a jury acquitted Cercy of one count of first-degree sexual assault (rape) and one count of second-degree sexual assault of a then 20-year-old woman at his house at Alcova lake on June 25, 2017.
However, the jury could not reach a verdict on the one count of third-degree sexual assault -- sexual contact without penetration, although that definition is contended -- so Forgey declared a mistrial.
Natrona County District Attorney Mike Blonigen filed a motion to retry Cercy on that count, and Forgey and the Wyoming Supreme Court rejected motions by Cercy to dismiss the count.
In June, Forgey granted Cercy's request to change of venue to Thermopolis in Hot Springs County Court because of the media coverage from his arrest leading to the trial in February, during the trial and afterwards. The trial is scheduled to start on Nov. 9.
The court has heard and decided on other motions about what may be admitted at trial, but the motion to dismiss if granted would end it.
Cercy's attorneys wrote the new trial hinges on whether he performed oral sex on the alleged victim, which was the argument the prosecution made in trying to persuade the jury to convict him on the first- and second-degree counts.
Blonigen has argued that he can prove Cercy performed oral sex on the alleged victim.
But because the jury rejected that argument in its verdicts on those counts, the prosecution cannot use that argument for the third count, Mackey and Sandefer wrote.
If the court does not dismiss the case, the attorneys are asking the court exclude any reference to oral sex during the trial because discussing it would prejudice the jury more than just referring to "sexual contact," it would confuse the issues, and it would waste the jury's time in hearing the details about cunnilingus.
"The single charge in this case is third degree sexual assault and the jury will therefore have to decide whether 'sexual contact' occurred,' Mackey and Sandefer wrote. ""Cunnilingus is not 'sexual contact', it is 'sexual intrusion.'"