Wyoming Supreme Court Won’t Hear Tony Cercy Petition About Verdict
The Wyoming Supreme Court, without comment, denied a petition from Casper businessman Tony Cercy to either acquit him, or limit evidence at a retrial, of a charge of third-degree sexual assault.
"After a careful review of the petition, the materials attached thereto, the 'State's Response to Cercy's Petition for Writ of Review,' and the file, the Court finds the petition should be denied," wrote Chief Justice E. James Burke, who signed the order Monday.
Cercy filed the petition on March 30.
He was acquitted after an eight-day jury trial in Natrona County District Court in February of charges of first- and second-degree sexual assault of a then 20-year-old woman at Alcova Lake last June.
However, the jury could not reach a verdict in the charge of third-degree sexual assault, so the judge declared a mistrial.
Last month, Natrona County District Attorney Mike Blonigen said he intended to retry Cercy on that count.
Cercy responded, and asked District Court Judge Daniel Forgey either to acquit him on the third-degree sexual assault, or if the case would be retried, to limit the jury to consider only evidence whether sexual contact was made between the alleged victim and his penis, according to court records.
On March 15, Forgey denied Cercy's request.
So Cercy filed the petition with the Wyoming Supreme Court to ask for an acquittal or to limit issues at retrial. The State of Wyoming was named as the defendant.
Cercy, through his attorney Tim Newcomb of Laramie, made the same arguments in the petition as his former defense team of Ian Sandefer of Casper, and Pamela Mackey and Jeffrey Pagliuca of Denver made in their motions in District Court.
The jury in district court rejected the alleged victim's claims of sexual assault by oral sex when it acquitted Cercy of first- and second-degree sexual assault, according to court records.
For that and other reasons, a retrial on the third-degree count also will result in an acquittal. That is not fair to Cercy, Newcomb wrote.
Wyoming Assistant Attorney General Benjamin Fischer responded that granting a writ of review is limited to rare and unusual cases "'if no other plain, speedy and adequate remedy exists...'"
Fischer added Cercy presented no question for review that rises to a "constitutional magnitude." Courts nationwide have held a trial judge may discharge a deadlocked jury and require the defendant to submit to a second trial, he wrote.
Likewise, inconsistent verdicts on the first-, second- and third-degree sexual assault charges do not justify his acquittal, Fischer wrote.
Finally, Cercy has other other "'plain, speedy, and adequate'" remedies for review of his issues and to protect his rights, such as filing a motion to dismiss the case after the state re-files the charges, Fischer wrote.
The case began last summer when the alleged victim told a Natrona County Sheriff's investigator she, her boyfriend, friends and acquaintances arrived at Alcova Lake on the evening of June 23 and spend the next day at the lake. She was drinking heavily and passed out on the rear deck of a boat at Sandy Beach.
On Saturday evening, they went to another location and about 9:45 p.m. went to a residence on Cedar Drive North owned by Cercy.
She said she went into the residence, passed out on the couch in the middle of the living room, and woke up to find Cercy performing oral sex. Cercy made comments to the effect that he had raped her, according to court records.
Nearly all of her clothing had been removed and Cercy was naked from the waist down, according to court records.
The alleged victim said he gave her a ride to a friend's place at the Alcova Trailer Park, and Cercy threatened to kill her and himself, according to court records.