The Wyoming Supreme Court unanimously ruled Friday that a judge improperly instructed the jury about oral sex during the second trial of former Casper businessman Tony Cercy on third-degree sexual assault of a woman in June 2017, and ordered the case be reconsidered.
Natrona County District Attorney Dan Itzen said the court’s decision overturns the conviction.
“We’ll be looking at another trial,” Itzen said. “We need to meet with the victim and her family before we make any decisions.”
Cercy, who is serving a six- to eight-year prison term, will be released at some point, and the prosecution and defense will need to address bond and other issues when the case formally returns to Natrona County District Court, he said.
That will happen probably in 30 to 45 days, Itzen said.
If the case is retried, the judge will need to make a decision whether to retry it in Natrona County, as was the case in the first trial, or change the venue like it was for the second trial when it moved to Hot Springs County, he said.
Itzen declined to comment on the court’s ruling because it’s still a pending case. “I’m just going to allow the opinion to speak for itself.”
In the 20-page opinion written by Justice Kate Fox, the court recounted the facts of the case, starting with the alleged victim and her friends partying at Alcova Lake on June 24, with her eventually passing out on a couch at Cercy’s former home there. She testified she woke up about 3 a.m. the next day half-naked with Cercy performing oral sex on her. He gave her a ride to a friend’s lake house and hold her he would kill her if she told anyone.”
Cercy was charged with first- (rape), second- and third-degree sexual assault. He was acquitted of the first two counts in a trial in Natrona County District Court in February 2018, but the jury deadlocked on the third-degree sexual assault count. Cercy asked for a mistrial. Forgey declared a mistrial. Former District Attorney Mike Blonigen refiled the third-degree count. Forgey changed the venue to Hot Springs County where a jury found Cercy guilty.
District Court Judge Daniel Forgey sentenced him in February to a six- to eight-year prison term.
Cercy appealed his case to the Wyoming Supreme Court in May and raised these issues, according to the court’s opinion:
- “1. Did the decision to retry Mr. Cercy for third-degree sexual assault violate the prohibition against double jeopardy?
- “2. Was the jury properly instructed on the law under which it could find Mr. Cercy guilty of third-degree sexual assault?
- “3. Does evidentiary or double jeopardy law govern evidence of cunnilingus on retrial?”
The supreme court did not agree with Cercy’s appeal of his conviction in November 2018 that he was tried twice for the same crime, known as double jeopardy, according to the unanimous decision of the five justices.
Instead it focused on how Forgey instructed the jury in Hot Springs County Court before it began deliberations.
No jury instruction limited how jurors could consider the evidence of oral sex, despite Cercy’s requests for such an instruction, according to the opinion.
Because the court did not give the jury that instruction, including the language of the third-degree sexual assault, the jury could not have known that the Legislature specifically excluded sexual intrusion from the crime. The definitions in the jury instructions never explained the difference between “sexual intrusion” and “sexual contact,” according to the opinion.
None of these instructions was necessarily incorrect, but they left doubt as to the circumstances under which the jury could convict Cercy of third-degree sexual assault.
“The district court abused its discretion in failing to adequately instruct the jury, and we reverse on that basis,” according to the opinion.
“The jury in the first trial necessarily decided that Mr. Cercy did not commit cunnilingus,” the court said in its conclusion.
“Cunnilingus cannot satisfy the ‘sexual contact’ element of third-degree sexual assault. Therefore, the decision to retry Mr. Cercy for third-degree sexual assault did not violate double jeopardy,” the court wrote.
“However, on retrial, the district court inadequately instructed the jury, leaving doubt about the circumstances under which it could convict Mr. Cercy of third-degree sexual assault. We reverse and remand for proceedings consistent with this opinion.”