A former Casper businessman this week appealed his sexual assault conviction to the Wyoming Supreme Court.
Tony Cercy, whom a Hot Springs County jury convicted in November of a single count of third-degree sexual assault, has four times requested that the state’s highest court review his case. The court denied his first three petitions, filed following a partial conviction and mistrial in February 2018, days before his November trial and again in March.
Cercy’s latest request of the appellate court, filed Monday, argues that a second trial violated his constitutional protection against double jeopardy, that prosecutors did not present evidence supporting the third-degree conviction and that the trial judge provided jurors with improper instructions.
“Because the first jury found Defendant not guilty of that singular crime, there should have been no second trial,” the appellate attorneys wrote. “The second jury’s verdict is void.”
The arguments incorporate issues he has previously raised to the court, which it has thus far declined to consider.
In Monday’s 38-page filing — which was accompanied by a 14-page appendix — Cercy argues his partial acquittal in February 2018 meant jurors found prosecutors did not prove he committed the oral sexual assault that the Hot Springs County jury later convicted him of. By trying Cercy again on the third-degree charge, attorneys argue the prosecution violated his double jeopardy protection.
Cercy also contends that Wyoming law does not allow for a third-degree sexual assault conviction on the facts presented by prosecutors, and Judge Daniel Forgey allowed jurors to consider legal theory pertaining to first-degree sexual assault when they convicted Cercy of the third-degree charge.
“On these facts, a jury crediting the prosecution case could properly have convicted only on the first count,” Cercy’s appellate lawyers, Michael Bennett and Sean Connelly, wrote. “In no event could the jury rationally have acquitted on the first and second count yet still convicted on the third.”
The lawyers wrote that because law governing third-degree sexual assault excludes sexual intrusion, and because cunnilingus is considered sexual intrusion, the charge Cercy was convicted of does not correspond to the act presented by prosecutors at trial.
Cercy is serving a six- to eight-year prison sentence and remained in Wyoming Department of Corrections custody on Wednesday. Online records indicate he is being held in the department’s Honor Camp in Newcastle.
Government lawyers will have until June 28 to file a response, according to online court records.