CASPER (AP) — Lawyers for former Casper businessman Tony Cercy, whose sexual assault conviction was overturned by the Wyoming Supreme Court last week, asked a judge on Monday to immediately release him from prison.
Cercy’s lawyers made the request in an emergency motion filed in Natrona County District Court. It included an email they sent to prosecutors saying they believe it would be “virtually impossible” for prosecutors to take the case to trial for a third time, the Casper Star-Tribune reported.
The justices on Friday ruled that jurors were not properly instructed on state law regarding the third-degree sexual assault charge that Cercy, 57, was convicted of during his second trial in Hot Springs County Court in November 2018.
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.”
He was accused of sexually assaulting a 20-year-old woman who passed out on a sofa at his Alcova lake house in June 2017.
In July 2017, Cercy was charged with first-, second-, and third-degree sexual assault.
While prosecutors presented evidence of oral sexual assault, the court found that kind of assault does not meet the state law’s standard to show third-degree sexual assault. It found that it is applicable to the first- and second-degree crimes Cercy was acquitted of during his first trial in February 2018.
The court said that if prosecutors try Cercy again on third-degree assault charges, they should provide other evidence of sexual contact.
Cercy is serving a six- to eight-year prison sentence in a Newcastle prison camp, according to Wyoming Department of Corrections records.