Tony Cercy Declines to Testify; Defense Rests in Sexual Assault Trial
THERMOPOLIS -- Casper businessman Tony Cercy declined to defend himself on the stand in the third-degree sexual assault trial at the Hot Springs County Court House on Monday afternoon.
"I'd like not to testify," Cercy told Natrona County District Court Judge Daniel Forgey after the 11-woman three-man jury was briefly recessed.
Forgey asked Cercy if he was making that decision of his own free will and was not being pressured to do so.
During the first trial in February, Cercy, who heard all the witnesses, testified on his own behalf. Evidence presented in the second trial, such as the use of his cell phone when he said he was asleep, undermined his previous testimony, according to Natrona County District Attorney Mike Blonigen.
Defense attorney Jeffrey Pagliuca again made a motion for acquittal for the same reasons he did at the beginning of the day.
Blonigen responded that he had the same objections to that request as before.
Forgey again denied the motion, but said Pagliuca could revisit the issue after the trial.
The judge and attorneys said they will meet at 8:30 a.m. to work out details of the jury instructions before the prosecution and defense present their closing arguments.
The case started the night of June 24-25, 2017, when the alleged victim was drunk and went to Cercy's former house at Alcove Lake. She passed out on the couch and said she was awakened about 3 a.m. with most of her clothes removed and Cercy was performing oral sex on her. She testified last week that she slapped him, yelled at him, retrieved her clothes and unsuccessfully called and texted friends asking for help. She said she walked outside the house, Cercy drove his side-by-side to her, gave her a ride to near a friend's trailer, and told her he would have her killed if she told anyone.
Cercy has denied the assault happened.
He was charged in July 2017, and a jury in Natrona County District Court acquitted him of first- and second-degree sexual assault during a trial in February.
However the jury deadlocked on one count of third-degree sexual assault, Forgey declared a mistrial, the alleged victim asked Blonigen to retry the case, and Forgey moved the trial to Hot Springs County based on the defense attorneys' claim of intense publicity before, m during and after the first trial.
If Cercy is convicted, he faces up to 15 years in prison.
The judge called the jury back into the courtroom.
Defense attorney Pamela Mackey said the defense rested its case.
Blonigen had no objection.
Forgey told the jury to return to the courthouse at 10 a.m. because of the work he and the attorneys need to do.
Monday morning, the prosecution rested after hearing from Dr. John Simon Buckleton, a forensic scientist from New Zealand who was a creator of the STRmix DNA analysis system.
The defense's first witness was Dr. William O'Donohue, a psychologist who has treated thousands of sexual assault victims, published scores of books and written hundreds of articles.
O'Donohue corroborated much of what prosecution witness and sexual abuse psychologist Dr. Sheri Vanino said last week about the effects of trauma, avoidance of thinking about an assault, and related issues.
However, he said some victims may fill in gaps in their memories about a sexual assault, suggesting the alleged victim in this case did, too.
Other defense witnesses included longtime Cercy family friends Thad and Mickey White, who were among those who communicated with the alleged victim's father on June 28, 2017, three days after the incident; and friend Kera Bullard.
The defense called Dr. Mary Cablk, a remote sensing scientists who conducted an experiment to determine if the assault described by the alleged victim would have awakened the Cercy’s four dogs in the master bedroom, as well as Tony Cercy’s wife Caryl and her friend Tawni Moore who were in the master bedroom.
Cablk, who testified in the first trial, repeated how she conducted the experiment in the Cercy home at Alcova Lake.
To create the script and choreography, she used the court documents, her video interview by the Natrona County Sheriff's Office, and the short cell phone video of the passed-out alleged victim with Tony and Caryl Cercy yelling at her. She said she placed sound monitors in the living room and in the master bedroom.
Cablk hired a male and female actor to recreate the time when the alleged victim awoke about 3 a.m., and slapped and yelled at Cercy, and he reacted by saying that what she saw wasn't what she thought.
Mackey played the audio portion of the video -- Forgey previously forbade showing the video because it would prejudice the jury -- and the dogs began barking with the first slap.
Blonigen attacked Cablk's testimony and Johnni Joyce, a Sheridan College criminal justice instructor who was a consultant about dog behavior.
Blonigen asked why Cablk and Joyce why they didn't use other versions of the alleged victim's story -- a criticism of the alleged victim by Mackey -- and conduct other experiments, such as a simulation of the front and back doors being opened. If the alleged victim had left the house without being sexually assaulted, the opening of the doors would have caused the dogs to bark, too.
Caryl Cercy also testified.
When questioned by Mackey where she lived, Caryl Cercy responded, "It's up in the air; we're in the process of moving to Texas."
She recounted the events of the night of June 24-25, saying she and family friend Tawni Moore went to sleep in the master bedroom about 1:45 a.m., which is about when Tony Cercy retired to a guest bedroom. The alleged victim was still sleeping on the couch in the living room, she said.
She didn't hear any commotion in the living room that night, the dogs never barked, and she and Moore were awakened by the dogs between 5 a.m. and 6 a.m. to go outside. The alleged victim was gone, she said.
The final defense witness was Dr. Phillip Danielson of the University of Denver, who testified about the DNA analysis of the alleged victim's clothing and the cushion cover where DNA samples from Tony Cercy and the alleged victim were found.
Danielson did not disagree with any of the findings of the Crime Lab, and praised it for its quality of work.