THERMOPOLIS -- The 11-woman, three-man jury for the third-degree sexual assault trial of Casper businessman Tony Cercy was empaneled Friday afternoon, and was dismissed for the weekend.

The trial at the Hot Springs County Courthouse resumes at 8:30 a.m. Tuesday when the prosecution and defense will present their opening statements.

 

In June, Natrona County District Court Judge Daniel Forgey granted the defense motion to move the trial to here from Casper because of the intense publicity before, during and after the trial in February.

In that trial, Cercy was acquitted of first- and second-degree sexual assault of a 20-year-old woman at his house at Alcova lake on June 25, 2017.

District Court Judge Daniel Forgey declared a mistrial after the jury could not reach a verdict on the third-degree sexual assault.

The woman asked, and Natrona County District Attorney Mike Blonigen agreed, to file that charge again.

In June, Forgey granted Cercy's request for a change of venue to hold the trial in Thermopolis. Cercy's attorneys argued he could not get a fair trial in Natrona County because of the the pervasive media coverage from his arrest in July 2017 leading to the trial in February, during the trial and afterwards.

On Wednesday, the Wyoming Supreme Court denied a last-minute petition from Cercy's defense team, which argued that the charge and retrial on the third-degree sexual assault count would violate his Fifth Amendment right to not be tried twice for the same crime.

After Forgey dismissed the jury, Forgey, Blonigen and defense attorney Jeffrey Pagliuca took care of some pre-trial housekeeping issues, including agreeing that the alleged victim should be sequestered until she testifies Tuesday.

Pagliuca again raised long-running dispute about the nature of the charge of third-degree sexual assault.

When the jury acquitted Cercy of first- and second-degree sexual assault in February, that acquittal included oral sex, specifically intrusion, Pagliuca said.

"Third-degree sexual assault as a matter of law cannot be counted as sexual intrusion," he said.

A detailed discussion of oral sex -- does it mean sexual contact or sexual intrusion -- will confuse the jury, so Pagliuca asked Forgey to not allow any mention of it and if the prosecution does mention it, he and the other defense attorneys will immediately object.

Otherwise, the trial will violate numerous rights of Cercy's including the right to a fair trial, the right to not be tried twice for the same crime (double jeopardy), and a violation of due process, Pagliuca added.

Blonigen responded that there is no legal authority to limit only part of the evidence in a trial, that the third-degree sexual assault count stands alone and is not related to first- or second-degree sexual assault charges, and the defense is ignoring other definitions of oral sex.

Likewise, the defense should not be allowed to talk about the verdict in the first trial, he said.

Forgey steered a course between the two arguments.

He will allow the defense to make a "continuing objection" about the details of third-degree sexual assault instead of defense attorneys objecting every time a witness mentions the subject.

Forgey will make further decisions on the matter by the time the jury has heard the evidence and is about to deliberate, he added.