The Wyoming Attorney General’s Office on Monday asked Wyoming’s highest court to deny review of Tony Cercy’s appeal.
Jurors found Cercy not guilty on two charges in February but deadlocked on a count of third-degree sexual assault. Cercy’s lawyers asked the state Supreme Court last month to acquit him on that charge. In the latest filing, state lawyers asked the justices to deny the Casper businessman’s request.
In the March filings, Cercy’s attorneys argued that the non-guilty verdicts on the first- and second-degree charges and the testimony given at trial means “there was insufficient evidence to sustain a third-degree sexual assault conviction.”
In filings submitted to the Supreme Court on Monday afternoon, an attorney for the state argues that Cercy’s appeal was filed inappropriately and is predicated on arguments that are undermined by relevant case law.
An assistant attorney general wrote that instead of appealing to the Supreme Court, Cercy should file for a motion to dismiss the new charge in District Court. Benjamin Fischer also wrote that because the elements of first- second- and third-degree sexual assault are different, the third-degree charge should not be dismissed.
Natrona County District Attorney Mike Blonigen in March requested a new trial on the third-degree charge. A hearing is scheduled for Thursday in Natrona County District Court regarding that request.
Attorney General Peter Michael was not available Monday afternoon for comment.
Timothy Newcomb, who is representing Cercy on appeal, was likewise unavailable for comment.
Cercy stood trial in February based on charges alleging he sexually assaulted a then 20-year-old woman at his Alcova lake house.
The alleged victim told jurors that she woke to Cercy performing oral sex on her on a couch. She testified that after immediately pushing him away, Cercy told her he had been trying to wake her by performing sexual acts on her.
The woman, who was 20 at the time, testified that she fell asleep fully clothed but woke with only a bra on. She said Cercy was naked from the waist down. The woman told authorities that Cercy threatened to kill her if she told anybody about the incident.
Cercy also testified during the trial. He denied having any sexual contact with the woman. He told jurors that he was asleep at the time the woman alleged he’d sexually assaulted her.
Defense attorneys presented evidence suggesting the assault could not have happened because Cercy’s dogs would have woken and barked. The woman’s testimony did not include any mention of barking dogs.
Friends told investigators that the woman contacted them in the early hours of June 25 to report allegations of assault and to ask for help. One friend said they received a text message from the woman at about 3:21 a.m. asking for help. Another said that the woman called them the next morning and said that Cercy had raped her.
Cercy voluntarily went to the Natrona County Sheriff’s Office on June 28 so that investigators could collect a sample of his DNA. He was arrested July 28.
Three days later, Cercy was charged with one count each of first-, second- and third-degree sexual assault.