CASPER, Wyo. — The Wyoming Supreme Court has overturned the conviction during the second trial against former Casper businessman Tony Scott Cercy.
According to an opinion published by the Wyoming Supreme Court Friday, December 27th, the decision was overturned on “instructional grounds.”
Natrona County District Attorney Dan Itzen says that they will have to decide if they’ll pursue the charge a third time. The conviction, given in a Hot Springs County courthouse in November of 2018, was the second trial for Cercy, from the same incident.
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Cercy was convicted of third-degree sexual assault in November of 2018. The conviction comes from an incident that occurred during the summer of 2017.
Cercy had been sentenced to 6-8 years for Third-Degree Sexual Assault in the case.
The victim in the case testified that after a day of drinking with friends at the lake in June 2017, she attended a party at the Cercy home near Alcova Reservoir. The woman told the jury that she passed out at the party and awoke in the early morning hours, of the following day, to find Cercy performing oral sex on her.
Cercy was originally found “not guilty” on one count of first-degree sexual assault and one count of second-degree sexual assault, during a trial in February of 2018 in Natrona County. The jury could not reach a unanimous verdict on a charge of third-degree sexual assault.
It was the third-degree sexual assault charge that Cercy was convicted of, in the facilities of the Hot Springs County District Court, in November. The Wyoming Supreme Court opinion overturns that conviction.
Questions had been raised by Cercy’s team regarding if the conviction at the second trial constituted double jeopardy. The Wyoming Supreme Court said that the conviction was not overturned because of double jeopardy, or being tried for a crime that one has already been tried and found innocent for, but on “instructional grounds.”
“[…]This Court cannot fairly evaluate whether retrial violated double
jeopardy based on the evidence admitted because the jury was not properly instructed,” read the opinion, published by Wyoming Supreme Court. “The district court determined evidence of cunnilingus was intrinsic to the third-degree sexual assault charged in the second trial, and allowed the State to present evidence about the alleged cunnilingus. Nearly every prosecution witness discussed the victim’s claim that she awoke to Mr. Cercy performing cunnilingus on her without her consent. No instruction limited the purpose for which the jury could consider the evidence of cunnilingus, despite Mr. Cercy’s requests for such an instruction.”
The full opinion can be read here, via the Wyoming Supreme Court Website.