Day 6 — UPDATE – Casper Businessman Tony Cercy Says He Slept The Night Of Alleged Assault
UPDATE: 3:30PM - There were two surprise developments in the afternoon session of the trial of Casper businessman Tony Cercy in Natrona County District Court on Tuesday.
First, Tony Cercy said he would testify as a witness on his own behalf.
The other was a revelation from a cell phone forensics expert from the Wyoming Department of Criminal Investigation.
During a recess of the jury, District Court Judge Daniel Forgey asked Cercy if he understood he has the right to remain silent, not testify, and the jury cannot infer from his silence that he is guilty.
Likewise, Forgey said if he does testify, he can be cross-examined and that he cannot change his mind later.
Cercy said he understood, adding he would testify.
Under questioning by lead defense attorney Pamela Mackey, Cercy flatly denied he sexually assaulted the alleged victim.
He recounted his life story, saying he came to Casper at age 13 in 1974, graduated from Natrona County High School, attended colleges in South Dakota and Texas, and went to work for Power Service, Inc., in 1983. He rose through the ranks, bought out his partners, and sold the company in 2016.
He and his wife, Caryl, have three children who live in Casper.
Cercy recounted the events of June 24, when he and Caryl drove their boats to Alcova Lake and opened their lake house for the summer.
He corroborated the account of the young people invited to the house that night, and testified that he knew the alleged victim since she played on a volleyball team his company sponsored when she was in junior high school.
Cercy said the atmosphere at the house was conversational and loud, he was sitting on the hearth of the fireplace, and he had been drinking.
When Mackey referred to a 10-second video of the alleged victim sleeping on a couch, he said he was embarrassed by his yelling, "'hottie, hottie.'"
At one point, a dog belonging to his daughter licked the alleged victim on the face, she sat up briefly, brushed it away, rolled over and went back to sleep.
Caryl asked the younger crowd to leave. Somebody who was with the group of older couples said it was late and they left between 1:30 a.m. and 2 a.m., Cercy said.
At that time, Caryl and guest Tawni Moore went to bed in the master bedroom with their four dogs, and he went to bed in a spare bedroom because he was allergic to the dogs.
He woke up at 8 a.m., had coffee on his deck, repaired an ice machine, and later went out on his boat. The alleged victim was not there, he said.
Then Mackey again asked him point blank if he assaulted the alleged victim. He replied, ‘No, I did not.”'
During cross-examination, Blonigen asked Cercy what he was wearing when he went to sleep, to which Cercy responded shorts and a sweatshirt.
During the next few questions, Mackey and the other defense attorney Jeffrey Pagliuca made frequent objections, resulting in numerous private conferences with Forgey,
Blonigen asked Cercy if he accessed his cell phone, to which Cercy responded he didn't know.
The alleged victim, Cercy added, wasn't moving when he went to bed.
He also asked about the phone call to the alleged victim on the morning of June 28, during which, according to her, he said, "'I want to clarify what happened the other night.'"
Cercy told Blonigen, “I did not say that."
At that point, Mackey said the defense rested its case.
Blonigen then called -- after another attorney conference with the judge -- a friend of the alleged victim's now ex-boyfriend, who was at Cercy's lake house on Saturday night, June 24, returned to Casper with the ex-boyfriend that night, and woke up early the next day to return to Alcova Lake.
The friend said he and the ex-boyfriend met with the alleged victim at her cabin by the lake, and described her emotional state as "a wreck."
Under cross-examination by Pagliuca, the friend admitted that when he was interviewed by law enforcement that he didn't remember the month of the alleged assault and that he was hung over.
UPDATE: 2:30 p.m. -- The trial continued after lunch, and defense attorney Pamela Mackey put Cercy's wife, Caryl, on the stand.
She began by adamantly insisting that nothing happened the night a young woman accused her husband of sexual assault.
She said the day of June 24th began with her and her husband going to Alcova Lake to open up their house for the summer, getting their boats ready and grocery shopping. After putting the groceries away, she said they went to the Casper Boat Club for dinner, inviting a friend, Tawni Moore, to join them. Moore had been looking after the Cercys' daughter’s dog.
After dinner, she said they went to the lake house, and a friend, Hezekiah White (son of Thad White of White’s Marine) asked to come over. She said they told him he could, and he and several friends, including the alleged victim, arrived about 10:30 p.m. The alleged victim promptly fell asleep on the couch. Caryl Cercy said she was not really happy with such a large crowd. About 11 p.m., another group of couples closer to the Cercy’s age, began arriving.
Caryl Cercy was asked about the video taken of the young woman on the couch, and she admitted she was not proud of her behavior, having shouted “'Hey, (girl’s name), shut the f*** up!'”
She described how her daughter's dog jumped on the young woman, licked her face, and the young woman rolled over and went back to sleep. She said she ultimately told everyone to go, and after everyone was gone, took the dogs out for a walk. She said she asked Tony where he wanted to sleep, and he said in the other bedroom since he didn’t like sleeping with the dogs.
She said she got up at around 6 a.m. Sunday.
She and Moore walked the dogs again, and watched TV until they fell asleep again.
Caryl said she did not hear an argument in the living room where the alleged assault occurred or their 4x4 vehicle on the driveway as described by the alleged victim.
Blonigan asked if Tony Cercy was drunk, and she answered, “I’ve seen him worse.” She said she went to bed the night before around 1:30 a.m. and was asleep by 2 a.m. She said Moore was already asleep.
She said she had only one drink that night.
Caryl Cercy testified that two days later, on the 27th, she, and Moore and one other person went to the lake house to clean it.
On the 28th, there were a series of calls with Tony.
It culminated with a voice mail from him that said, “'There’s a sh**-storm brewing and you need to call (the alleged victim’s father) or myself,'" Caryl Cercy said. He said it had to do with the alleged victim’s father who said that Tony may have done something and he may have mentioned sexual assault.
She said that was the first she heard of the charges, and so going to clean the cabin would not have been connected to the alleged crime.
Earlier Tuesday, Forgey denied the request to dismiss the sexual assault case against Cercy during a motion hearing after he dismissed the jury.
Pagliuca then moved to dismiss the case.
"The state has failed to prove any of the charges of counts one through three," Pagliuca said.
Cercy is charged with:
- One count of first-degree sexual assault (rape), when the perpetrator "knew or reasonably should have known that the victim was physically helpless and that the victim had not consented," which is punishable by between five and 50 years of imprisonment.
- One count of second-degree sexual assault (intrusion) "by means that prevent resistance by a victim," which is punishable by between two years to 20 years of imprisonment.
- One count of sexual contact "without inflicting sexual intrusion and without causing serious bodily injury," which is punishable by up to 15 years of imprisonment.
Before Pagliuca spoke, Blonigen said the state rested its case Tuesday morning after calling its final witness.
It's not uncommon for the defense to present such a motion towards the end of a trial out of sight of the jury.
Pagliuca criticized the charging document itself, saying the second count is contrary to and duplicitous of the the first count, and that count three is a "catch-all" for the other charges.
Blonigen responded that the law says a jury can find a defendant guilty of second-degree sexual assault if it cannot find him guilty of first-degree sexual assault.
The state, he said, has offered evidence of those counts, as well as the third court.
The alleged victim woke up reported Cercy telling her "'had been trying to wake you up for hours with my d--k and my tongue,'" Blonigen said.
That statement was corroborated by other witnesses, he added.
Pagliuca had no further comment on his motion.
In making his decision to deny the motion, Forgey said he considers the evidence presented in the most favorable light to the state.
"The state has met its burden to all three counts such that we should proceed on," he said. "The counts should be considered by the jury."
However, Forgey added that some issues may arise during jury instructions after the defense rests.
The trial resumes in district court at the Townsend Justice Center at 1 p.m. today.