CHEYENNE — A former Casper businessman’s argument for overturning his sexual assault conviction would allow people accused of sexual assault to defend themselves by claiming commission of a more serious form of the crime, a government lawyer told Wyoming’s highest court Tuesday.
Assistant Attorney General Benjamin Fischer’s statements came as part of a hearing on Tony Cercy’s appeal of his sexual assault conviction, for which Cercy is now imprisoned. Cercy’s lawyers have asked the Wyoming Supreme Court to acquit him. As is typical, the court did not rule at the hearing. Instead, its decision will come in writing.
The court’s now tasked with determining the latest in a series of appeals that began nearly 17 months ago, shortly after Cercy’s February 2018 acquittal on two counts of sexual assault and a hung jury on a third count. Cercy’s lawyers about a month later asked the court to block prosecutors from trying their client again, but the court declined to consider the issue. The supreme court also did not consider an appeal filed shortly before a jury in November found Cercy guilty of third-degree sexual assault, the final remaining count.
The Wyoming Supreme Court this summer agreed to hear Cercy’s second post-conviction appeal, in which lawyers argue that the case violated Cercy’s constitutional protection against multiple trials for the same conduct, that evidence presented at trial did not meet the elements of third-degree sexual assault and that trial Judge Daniel Forgey presented inappropriate instructions to jurors.
State lawyers in their late-June response argued that acquittals on the first two counts did not preclude prosecutors from trying Cercy again on the third count, that Cercy’s lawyers concluded evidence did not support his conviction only by misreading the law governing the crime and, finally, that jury instructions requested by Cercy’s lawyers are not supported by law.
Lawyers’ arguments had largely been presented in documents filed well before the Tuesday morning Cheyenne hearing. The morning’s courtroom spectators nonetheless dwarfed those present during nearly all of Cercy’s November trial in Casper. By the time justices sat, the crowd numbered nearly 100.
Nearly as soon as Cercy’s Colorado appellate attorney, Sean Connelly, began addressing his written arguments, Justice Lynne Boomgaarden peppered him with a series of questions challenging the applicability of case law Cercy’s appellate team cites in support of its constitutional argument. The precedent, Connelly told the court, supports his argument that jurors could not have rationally acquitted Cercy of the first two counts but found him guilty of the third.
The case had been reduced by trial lawyers to a single issue. The cited cases, Connelly argued, would then require the court to find the jury’s verdict invalid.
“Really this is all one crime,” Connelly said. “Either this happened the way she said it happened or it didn’t happen at all.”
In response to questioning by Justice Keith Kautz, Connelly said the Attorney General’s Office is arguing against its own interests. Cercy’s argument that oral sexual assault should only be charged as first- or second-degree sexual assault is one that would most typically be in the interest of prosecutors. The state’s response, Connelly argued, would create precedent cited only by criminal defendants who think they’ve been overcharged.
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After Connelly concluded his statements, Fischer told the justices that Cercy’s appeals are unusually frequent and bring uncommon arguments. A particular jury instruction that Cercy’s team argues should have been admitted at trial is, “unprecedented, as far as I have seen,” Fischer said.
The state lawyer then returned to Boomgaarden’s area of question. When the justice followed up, Fischer told her that refinement of the prosecution is appropriate and legal. Cercy, Fischer said, did the same by deciding not to testify in the November trial.
The U.S. Supreme Court has chipped away at the case law that underpins Cercy’s double jeopardy argument, Fischer argued.
The defense argument that third-degree sexual assault cannot be proven with evidence of oral assault is absurd, Fischer then said in response to a Kautz question. The language in that law ruling out “intrusion,” which lawyers defined at trial as including oral assaults, only means the state does not have to prove that type of conduct to satisfy the statute. Fischer said under law produced by Cercy’s arguments, a defendant could then argue they committed first- or second-degree sexual assault as a defense to a third-degree count.
“That’s a rather extraordinary reading of a statute,” Fischer said.
Chief Justice Michael Davis noted in response that Cercy was acquitted of the first- and second-degree counts.
During Connelly’s brief rebuttal argument, the lawyer again noted the single issue contested at trial before asking the court to order Cercy’s acquittal.
“(There’s) a trifecta here of error,” Connelly told the five justices.
When the court rules in the case, it will announce its determinations in a written response.
Cercy is serving his six- to eight-year sentence at the Wyoming Medium Correction Institution, according to online Corrections Department records. He’s expected to be eligible for parole in early 2023.