The Natrona County District Attorney disputed Casper businessman Tony Cercy's claim that the court should dismiss his case on a charge of third-degree sexual assault on the grounds it violates his constitutional right to not be tried twice for the same crime, or double jeopardy.

Cercy's retrial is scheduled to begin Nov. 9 at the Hot Springs County Courthouse in Thermopolis after a jury in February acquitted him 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.

The jury deadlocked on a count of third-degree sexual assault.

District Court Judge Daniel Forgey declared a mistrial, District Attorney Mike Blonigen successfully filed a motion to try Cercy again on the third-degree count, Forgey granted Cercy a request to change the venue, and both sides have been filing pre-trial motions.

Friday, Cercy's defense team filed a motion to dismiss the case because the retrial would mean violating his constitutional right to not be tried twice for the same crime.

"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.

Not quite, Blonigen responded Tuesday.

First, the jury instructions in the first sexual assault trial in February about the definition of oral sex were unclear, Blonigen wrote. "The jury instructions clearly left room for a jury to find sexual contact but remain unsure of sexual intrusion."

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.

But Blonigen responded Cercy's defense attorneys can't infer what the jury was deciding -- sexual contact or sexual intrusion -- when it acquitted him on first-degree sexual assault.

Second, just because the jury acquitted Cercy on the first- and second-degree sexual assault counts doesn't preclude him being tried on the broader third-degree sexual assault count, he wrote.

Finally, the district attorney criticized the defense's alternate suggestion if Forgey decides to not dismiss the case, namely to exclude any mention of oral sex during the trial because that would prejudice the jury.

Blonigen wrote that the defense cannot have it both ways.

"The case is dismissed on Double Jeopardy grounds or it is not," he wrote.

"There is no authority to allow some portions of evidence and not others," Blonigen wrote. "Moreover, it is impossible to separate the actions of the Defendant into separate actions. If the victim is unable to recount the whole event, the jury will be presented with an incomplete picture that can only be viewed as inconsistent with her original reports. It is fundamentally impossible to separate different actions. That is the jury's role, the not trial court's role."

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