Search Warrant: Tony Cercy Used Cell Phone Night Of Alleged Assault
A new forensic examination of Casper businessman Tony Cercy's cell phone refutes his testimony during his trial in February that he was asleep when he was accused of sexually assaulting a then 20-year-old woman at his home at Alcova, according to an affidavit recently filed in Natrona County Circuit Court.
"The timeline created identified several mobile cell phone artifacts that indicated that Tony Cercy's cellular phone ... was accessed and used during the specified timeframes including when the victim alleged the sexual assault occurred and the timeframe of events immediately following the assault," according to the affidavit written by Sheriff''s Investigator David Hulshizer that accompanies a request for a new search warrant.
That search warrant, which was recorded in Circuit Court on July 2, was for a more thorough investigation of the cell phone.
Cercy's attorney, Pamela Mackey, did not return a phone call seeking comment.
Cercy was acquitted on Feb. 22 of first-degree sexual assault (rape) and second-degree sexual assault of the woman at the end of an eight-day trial.
However, the jury could not reach a verdict on the count of third-degree sexual assault, and Natrona County District Court Judge Daniel Forgey declared a mistrial. Third-degree sexual assault is punishable by up to 15 years of imprisonment.
District Attorney Mike Blonigen filed to retry the third-degree sexual assault count, and Forgey and the Wyoming Supreme Court rejected Cercy's requests to dismiss them.
Last month, Forgey granted Cercy's attorneys' request to move the trial to Hot Springs County. The trial is scheduled for November.
The case began in June 2017, when court records say 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 and spend the next day at the lake. She was drinking heavily and passed out on the rear deck of a boat at Sandy Beach.
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 and passed out on the couch in the middle of the living room.
She woke up, looked down and saw Cercy performing oral sex. She pushed him away and asked what he was doing, and he responded he was trying to "'get some action'" from her for the last hour with his "'tongue and "d---,'" according to the affidavit.
Nearly all of her clothing had been removed and Cercy was naked from the waist down, according to the affidavit.
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.
During the trial, Tony and Carol Cercy volunteered to testify.
Carol Cercy said she and a friend, Tawni Moore, went to bed about 2:30 a.m.
Tony Cercy said he went to bed in another room about 2 a.m. and woke up about 8 a.m., and had his cell phone with him. He used it on June 28, when he called Hezekiah White, the son of his best friend, when he tried to get the alleged victim's cell phone number. That call sparked the investigation that led to the indictment and trial.
The Sheriff's Office seized Cercy cell phone on June 28, 2017, and has been in custody without any alteration to its data, according to the affidavit.
Before the trial, investigators conducted some forensic analysis of Tony Cercy's cell phone. During the trial, Blonigen called Wyoming Division of Criminal Investigation agent Ryan Hieb to testify about four photos taken on Cercy's cell phone while he was allegedly was asleep.
Under cross-examination by defense attorney Jeffrey Pagliuca, Hieb said he didn't know what might have caused the images to be taken.
But a new forensic analysis by Hieb of Cercy's cell phone use from June 24-28 revealed a lot of activities, especially on the night and morning of the alleged assault.
Some activities correlated with other evidence such as when the Cercy's went to the Alcova Boat Club and the health tracking data shows Tony Cercy was walking Saturday evening.
But the activities during the time he said he was asleep included two video files, four picture files, Apple iMessage, health tracking applications including data of him walking, according to the affidavit.
"Investigator Hushizer further noted the time frame in which Tony Cercy's cellular phone health applications activated was during the same time in which (the alleged victim) was using her cellular phone frantically trying to reach her friends due to the sexual assault," according to the affidavit.
The videos were taken at 3:46:08 a.m., and at 3:46:12 a.m. Two of the photographs were taken at 3:46:10 a.m., and later accessed at 3:53:01 a.m. The last two photographs were taken at 3:46:10 a.m. and last accessed at 3:53:47 a.m.
The alleged victim testified during the trial that she did not use her phone from 3:30 a.m. to 3:45 a.m. because she was in Cercy's side-by-side all terrain vehicle when he drove her to a friends' trailer.
That, Hulshizer wrote, "is within the same time frame Tony Cercy's cellular phone was activated by walking on two separate occasions and was recorded in cellular phones health application data storage location."
There was evidence that Cercy used a messaging function to contact someone (the name was redacted). Those messages were marked deleted, but they were found on the storage locations of the phone.