A judge ruled Tuesday that jurors at Tony Cercy’s sexual assault trial should not hear allegations the Casper businessman assaulted a stripper and paid her so she wouldn’t go to the police.
However, the judge will allow the prosecution to present evidence that Cercy and a friend had an altercation with the alleged sexual assault victim’s then-boyfriend at a Casper bar this spring. The judge also barred prosecutors from presenting allegations that Cercy sexually harassed one woman and acted inappropriately toward another.
Cercy is slated to stand trial on three felony charges next month. Prosecutors argued the new evidence would show Cercy had motive and intent to sexually assault a woman on a couch in his Alcova house early on the morning of June 25. The woman told investigators she woke to him performing oral sex on her.
Cercy has pleaded not guilty.
In a Natrona County District Court hearing that spanned five hours, Forgey ruled on a long list of motions in anticipation of the upcoming trial. In addition to ruling on evidence of past acts, Forgey decided to keep from jurors a video created by the defense that purported to recreate the woman’s version of events.
The video showed dogs barking, which was not mentioned in the woman’s testimony, but which defense attorneys intend to show would have happened. Blonigen had opposed the presentation of video, saying it misrepresented the woman’s testimony and was improper use of expert witnesses.
Forgey said the defense team could attempt to enter into evidence an audio recording from the re-creation.
Defense attorneys also contested the seizure of Cercy’s cellphone, arguing that it was not alleged to have been used in the commission of a crime and the warrant used to seize it was overly broad.
Forgey did not make a decision on those arguments Tuesday.
Attorneys argue over allegations
District Attorney Michael Blonigen said the incident involving the stripper allegedly occurred in 2010 at Cowboys strip club west of Casper. However, Judge Daniel Forgey said the proposed evidence “would tempt the jury to decide the case on an improper basis.”
Jeffrey S. Pagliuca, one of three attorneys representing Cercy at Tuesday’s hearing, said the incident was a “complete fabrication.” He said one of the men who claimed knowledge of the incident was a convicted felon who is not credible.
Cercy was also represented by Pamela Mackey, who practices in the same Denver firm as Pagliuca, and local attorney Ian Sandefer.
Blonigen successfully argued for the inclusion of evidence related to an altercation that he said involved Cercy, his friend and the then boyfriend of the alleged victim. According to the prosecutor, the incident apparently began after Cercy and the other man put their hands on the woman in what the prosecutor characterized as a flirtatious manner. That allegation, which Blonigen said took place about a month before the alleged assault, did not rise to the level of criminal conduct.
Although Cercy’s defense team argued that the prosecutor mischaracterized the incident, Forgey decided to allow that evidence at trial, saying it would show evidence of the nature of interactions between Cercy and the alleged victim.
Blonigen also referenced an alleged alcohol-fueled sexual harassment incident involving Cercy and another woman that dates back 15 years. Blonigen said the incident took place sometime between 2000 and 2003. After the woman objected to his advances, Cercy told her that he “can make life pretty rough for her,” Blonigen said.
“At the very least it’s oafish behavior,” Blonigen said. “At the very most it’s civil sexual harassment.”
In another incident, which allegedly took place at a local bar this year, Blonigen said Cercy put his arm around a woman and “(decided) that she (belonged) to him.” The woman is reluctant to speak about the incident, Blonigen said, but she was subpoenaed to appear at Cercy’s trial.
Neither of the latter two incidents were criminal in nature, Blonigen said.
Neither will be allowed in court, either, as Forgey ruled that the two allegations were not closely enough related to the criminal charges in the case. The judge specifically cited the long time span since the sexual harassment incident is alleged to have occurred and the reluctance of the other woman to appear in court, characterizing the prosecution’s evidence in that incident as “hearsay.”
Documents sealed, hearing opened
Because the accusations are considered allegations of prior bad actions, prosecutors were required to ask the court for permission to introduce them at trial.
Defense attorneys argued that the allegations should not be discussed in open court on Tuesday morning, asking Forgey to close the portions of the hearing that included the four allegations. Cercy is not standing trial for those allegations.
Filings related to prior bad acts evidence were placed under seal by the judge last month and thus not available for the Star-Tribune to review.
Blonigen did not oppose the defense’s motion to close the hearing, but Forgey decided to keep the proceedings open to the public. The judge said that he did not view Cercy’s trial as being significantly different from other sexual assault trials heard in his courtroom.
Forgey then referenced another case, which is set to go to trial in two weeks, and recently had prior bad acts evidence presented in open court despite opposition from the defense.
Forgey did not specify which case he meant, but he appeared to be referencing Paul Harnetty’s sexual assault case, in which the former Casper OB-GYN faces nine sexual assault charges. That trial is slated to begin later this month.
A pre-trial conference in Cercy’s case is scheduled for Feb. 7.