THERMOPOLIS -- Natrona County District Court Judge Daniel Forgey went over the instructions he will read to the jury when it reconvenes later Tuesday morning to hear the closing arguments in the third-degree sexual assault trial of Casper businessman Tony Cercy.

The Natrona County District Attorney had a few minor recommendations, but otherwise had no objections to the 15 separate instructions.

However, Cercy's defense attorney Pamela Mackey again objected to a specific instruction about the definition of third-degree sexual assault, which includes sexual contact.

Cercy was acquitted in a trial in Natrona County District Court in February of first-degree (rape) sexual assault and second-degree sexual assault, but the jury deadlocked on the one count of third-degree sexual assault of a then 20-year-old woman at his former house at Alcova Lake early morning June 25, 2017.

Forgey declared a mistrial. The alleged victim asked and Blonigen agreed to refile the charge. Forgey moved the trial to Hot Springs County Court.

Mackey and the other defense attorneys have argued that the third-degree sexual assault count includes oral sex, of which Cercy was in effect found not guilty in the first- and second-degree sexual assault counts.

She submitted an alternate jury instruction to the one written by Forgey. She wanted this instruction to exclude oral sex as part of the crime.

"Mr. Cercy cannot be tried on acquitted conduct," Mackey said.

That would violate his constitutional right to not be tried twice for the same crime, known as double jeopardy, she said.

Forgey repeatedly has rejected this claim by the defense, including twice on Monday when defense attorney Jeffrey Pagliuca unsuccessfully twice asked that Cercy be acquitted and the case dismissed.

Blonigen responded that Wyoming law requires to jury instructions to state what the crime is, not what it is not.

He also said no one can infer what the jury was thinking regarding oral sex when it acquitted Cercy in February, that the definition of third-degree sexual assault is different than that of first- and second-degree sexual assault, and the objection about double jeopardy was noted on the first day of this trial and it has nothing to do with what the jury will decide.

Forgey responded that he's already decided on the double jeopardy issue, but he will note Mackey's objection for the record.

Mackey also wanted the jury to write the specifics of what it means about oral sex if it does find Cercy guilty.

Blonigen objected, saying the Wyoming Supreme Court recently ruled that a jury should not do that.  In that case of aggravated assault, the defense wanted the jury to write what specific weapon was used.

But the high court rejected that, saying such a request deals with elements of a crime and not the facts, Blonigen said.


We will be updating this story after the prosecution and defense present their closing arguments and the case goes to the jury.

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