Casper Businessman Tony Cercy’s Attorneys Again Want His Case Dismissed
The defense attorneys for Casper businessman Tony Cercy, who is scheduled to go to trial next week in Thermopolis on one count of third-degree sexual assault, have doubled down on their motion to dismiss the case, asserting the district attorney is violating Cercy's right to not be tried twice for the same crime.
In February, a jury acquitted Cercy 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, but deadlocked on a count of third-degree sexual assault.
Natrona county District Court Judge Daniel Forgey declared a mistrial and District Attorney Mike Blonigen refiled the charge of third-degree sexual assault.
Two weeks ago, Cercy's defense team asked the court to dismiss the case writing the jury did not believe Cercy performed oral sex on the victim.
Blonigen responded that the jury instructions in February were unclear about the definition of oral sex, and that Cercy's attorneys can't infer what the jury was deciding -- whether sexual contact or sexual intrusion -- when it acquitted him on the other counts.
But Cercy's attorneys Ian Sandefer and Pamela Mackey responded Thursday, saying the upcoming trial really is about retrying him on the same accusations that were acquitted in the first trial, and that violates Cercy's constitutional right to not be tried twice for the same crime, which is known as double jeopardy.
Sandefer and Mackey wrote Blonigen's response misrepresented the court record of what the defense said in the trial in February about oral sex, and that he ignored and misstated the trail testimony about the specifics of the alleged sexual acts that were acquitted.
According to Wyoming law, oral sex is not part of third-degree sexual assault, but rather part of first- and second-degree sexual assault, they wrote.
If Forgey does not dismiss the case entirely, he should exclude any evidence of alleged oral sex because it is irrelevant and would unfairly prejudice the jury.
Finally, Blonigen is changing the interpretation of the law about third-deree sexual assault that is arbiitrary and discriminatory, Sandefer and Mackey wrote.
"Seemingly, the prosecution is no longer bound by its interpretation of the statue during Mr. Cercy's first trial and is now proposing different definitions to fit a new theory that is designed, not to seek justice, but to maximize the possibility of conviction," the attorneys wrote.
As of Friday afternoon, Forgey had not set a time to hear the request to dismiss the case as of Friday afternoon.