District Attorney: Casper Businessman’s Change of Venue Request Is Baseless
The Natrona County District Attorney says Casper businessman Tony Cercy has no grounds for changing the location of a trial on one count of third-degree sexual assault scheduled for November.
Cercy, who was acquitted of first-degree sexual assault (rape) and second-degree sexual assault in February, wanted a change of venue in that trial, too, because of purportedly adverse publicity that may have prejudiced the jury, Mike Blonigen wrote in his response filed Friday in district court.
Blonigen can't figure out what Cercy's problem was then, or now.
"The jury selected seriously considered the evidence and, on the whole, did not convict the Defendant," he wrote. "If the jury panel was deeply prejudiced against the Defendant, how did that occur? Nothing in the pleadings suggest that the frequency or nature of the coverage has changed since that time. In fact, it is readily apparent that news coverage has diminished."
Cercy asked for the change of venue for the retrial on a count of third-degree sexual assault because of negative publicity before, during and after the trial, according to a motion filed in District Court. "Media coverage of the allegations against Mr. Cercy has been pervasive and inflammatory at every stage of this proceeding."
Their change of venue motion was 299 pages, most of which were reprints from K2 Radio and other local media sources.
Blonigen responded that the volume of coverage isn't important, but rather the effect of it. Likewise, after the initial articles about the verdict, relatively few articles have been published.
He also responded to Cercy's attorneys' allegations that he falsely stated in a previous filing that most of the jurors in the first trial favored conviction on the first-degree and second-degree sexual assault counts.
"This is true," Blonigen wrote. "Information provided by several jurors confirmed this."
Blonigen also cited a 1983 Wyoming Supreme Court decision that said a request for a change of venue because of adverse publicity needs to consider the nature and extent of the publicity and the prejudice it causes among potential jurors during jury selection.
Cercy has asked the court to apply a "presumed prejudice standard," but the state has never found a case where that standard applied.
Instead, Wyoming has adopted an "actual prejudice standard," in which the court first examines the nature and extent of the publicity and whether it prejudiced jurors during jury selection.
In other words, the determination must be made at the end of the jury selection and not before, Blonigen wrote. The defendant has the burden of proof to show the court that the publicity was prejudicial and that the jurors cannot set aside their biases.
Cercy and his attorneys have failed to do that, so the court should dismiss the change or venue request.
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.
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. Nearly all of her clothing had been removed, she claimed, 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 threatened to kill her and himself, according to court records.
Cercy also owned a cabin on Pelican Ridge near the lake. He sold the cabin in April.