UPDATE: Supreme Court Rejects Cercy Petition to Dismiss Case
UPDATE: The Wyoming Supreme Court has turned down a petition from the attorneys for Casper Businessman Tony Cercy to dismiss the case against him for 3rd degree sexual assault based on the prohibition against double jeopardy. Jury selection for the trial in Thermopolis begins Friday. This means the case will proceed.
Casper businessman Tony Cercy has asked the Wyoming Supreme Court to delay his trial set to start Friday, if not dismiss the case, on a sexual assault charge because it would violate his constitutional right to not be tried twice for the same crime.
As of late Wednesday morning, it appears the eight-day trial scheduled to begin Friday in Thermopolis will not happen because the court docket states the prosecution's deadline to respond is Nov. 21, and the hearing on the petition is scheduled for Dec. 17.
Cercy and his attorneys filed the petition against with the State of Wyoming as the defendant after Natrona County District Court Judge Daniel Forgey last week denied their request to dismiss the case.
District Attorney Mike Blonigen, whom is represented by the Wyoming Attorney General's Office, did not immediately return a phone call seeking comment.
In February, a jury acquitted Cercy on counts of first- and second-degree sexual assault of a 20-year-old woman at his former home at Alcova lake in June 2017, but deadlocked on a count of third-degree sexual assault.
Forgey declared a mistrial and Blonigen refiled the charge of third-degree sexual assault.
Cercy's defense team then asked the court to dismiss the case, writing the jury believed he performed oral sex on the alleged victim. They also argued that if the trial is not dismissed, the prosecution should be barred (in limine) from presenting any evidence about oral sex.
Blonigen responded that the jury instructions in February were unclear about the definition of oral sex, and that Cercy's attorneys can't infer what the jury was deciding -- sexual contact or sexual intrusion -- when it acquitted him on the other counts.
But Cercy's attorneys Ian Sandefer and Pamela Mackey responded Thursday, saying the upcoming trial really is about retrying him on the same accusations of which he was acquitted in the first trial, and that violates Cercy's constitutional right to not be tried twice for the same crime, known as double jeopardy.
Also Thursday, Forgey wrote an email to Blonigen and the defense attorneys stating, "I intend to deny the defendant's Motion To Dismiss Or, In The Alternative, Motion In Limine For Violation Of The Double Jeopardy Clause. A Formal order will be entered at some point prior to the commencement of trial."
Cercy's defense attorneys won't wait for that, adding that the petition to the Wyoming Supreme Court is not just a tactic to delay the start of the trial.
"Denial of a motion to dismiss asserting a double jeopardy violation is immediately appealable," Sandefer and attorney Tim Newcomb wrote.
The new charge filed after the first trial did not specify the sex act at issue, and the state responded with only language of the lat and did not include any specifics, they wrote.
In a hearing Sept. 27, they wrote Blonigen, "for the first time -- expressly stated his intent to prosecute Mr. Cercy for third degree sexual assault based on alleged cunnilingus."
That, Sandefer and Newcomb wrote, meant retrying Cercy on the crimes of which he was committed, thereby violating his Fifth Amendment right to not be twice put in jeopardy.
"Mr. Cercy therefore asks this court to stay proceedings in the District Court, including the upcoming trial, until his appeal of the District Court's denial of his Motion to Dismiss on double jeopardy grounds can be properly briefed and heard."