Natrona County Judge Rejects Cercy Assault Re-enactment Video About Barking Dogs
A judge rejected a request by the attorneys for Casper businessman Tony Cercy to introduce at trial a video re-enactment of the circumstances -- specifically whether dogs barked -- during the alleged sexual assault they said didn't happen last June.
"The video depiction is not complete, fair or an accurate presentation," Natrona County District Court Judge Daniel Forgey said during an all-day motions hearing Tuesday.
Whatever evidence the video may offer to a jury is far outweighed by the prejudice it would cause, Forgey said. "I find the video depiction is not admissible."
Cercy is charged with one count of first-degree sexual assault (rape), one count of second-degree sexual assault (intrusion), and one count of sexual contact "without inflicting sexual intrusion and without causing serious bodily injury."
If convicted on all counts, Cercy faces between seven and 85 years of imprisonment.
According to court records, the alleged 20-year-old victim went into Cercy's residence at Alcova Lake and passed out on the couch in the middle of the living room on the night of June 24.
She woke up, looked down and saw a drunk Cercy performing oral sex. She pushed him away and asked what he was doing, and he responded he was trying to "'get some action'" from her for the last hour with his "'tongue and "d---,'" according to the affidavit.
Nearly all of her clothing had been removed and Cercy was naked from the waist down.
Lead defense attorney Pamela Mackey said there were four people in the house at the time of the alleged assault: the alleged victim, Cercy, his wife Caryl Cercy, and Tawni Moore. Caryl Cercy and Moore were in a bedroom with four dogs.
Tuesday, Mackey told the court earlier that the video was an experiment with experts to determine whether events described by the alleged victim would have made enough noise -- she allegedly yelled -- to get a response from the dogs. "The dogs would have clearly (alerted) if something happened."
The defense attorneys hired an expert in remote sensing and an expert in dog behavior. They also hired two experts in sound and video recording who designed a script and choreography based on the alleged victim's statements who then taught actors when they re-enacted the events, according to Mackey.
The alleged victim gave several versions of what happened when she was interviewed by law enforcement. The video uses her statements, and does not use statements she did not make, Mackey said.
The experts will not give opinions about what happened during the alleged assault, which Mackey stressed did not happen.
Neither what the alleged victim nor Cercy wore was relevant, she said. "We didn't think it would be appropriate to have naked people running around; it's about dogs."
In response, Natrona County District Attorney Mike Blonigen said the video should not be introduced because it is misleading and will give jurors a visual image instead of allowing them to determine for themselves the credibility of the alleged victim and defendant.
"Why do we need four highly paid experts to say whether dogs barked," Blonigen said.
The alleged victim had no idea if anyone was in the house, and she was not asked about any dogs, he said.
Only Moore mentioned the dogs in an interview with law enforcement, and she gave a demonstrably false statement that the alleged victim was still at the house at 6:30 a.m., Blonigen said.
The video also does not show the alleged victim making 40 communications with other people about what allegedly happened, Blonigen said.
Finally, the alleged victim said she was covered with a blanket and wearing nothing except a bra during the alleged assault, The woman in the video is wearing a T-shirt and panties, no blanket is present, and she is not shown being undressed, Blonigen said.
And the male actor portraying Cercy doesn't resemble him, he said. "We have a nice-looking man instead of a 55-year-old drunk guy."