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Cercy v. State

Supreme Court of Wyoming

December 27, 2019

TONY SCOTT CERCY, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Natrona County The Honorable Daniel L. Forgey, Judge.

         Representing Appellant:

          H. Michael Bennett, Bennett Law Group, P.C., Cheyenne, Wyoming; Sean Connelly, Connelly Law, LLC, Denver, Colorado. Argument by Mr. Connelly.

         Representing Appellee:

          Bridget Hill, Attorney General; Jenny Craig, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; Benjamin Fischer, Assistant Attorney General. Argument by Mr. Fischer.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          FOX, Justice.

         [¶1] After his first jury trial ended in not-guilty verdicts on two counts and a mistrial on the third count, the jury in a second trial found Tony Cercy guilty of third-degree sexual assault. Mr. Cercy appeals his conviction claiming the second trial violated the constitutional prohibition against double jeopardy. We reverse, though on instructional grounds rather than double jeopardy.


         [¶2] Mr. Cercy raised several issues on appeal which we rephrase as follows:

1. Did the decision to retry Mr. Cercy for third-degree sexual assault violate the prohibition against double jeopardy?
2. Was the jury properly instructed on the law under which it could find Mr. Cercy guilty of third-degree sexual assault?
3. Does evidentiary or double jeopardy law govern evidence of cunnilingus on retrial?


         [¶3] June 24, 2017, started out like many summer days at Alcova reservoir. People breakfasted with friends and family, enjoyed the water, and drank copious amounts of alcohol. That night, two groups of people, one older and one younger, made their way to Tony Cercy's lake house to continue the party. One member of the younger crowd, a young woman, passed out on the Cercys' couch. When the younger group was ready to leave, they asked Tony's wife, Caryl, if the young woman could remain on the sofa, and Mrs. Cercy agreed she could stay. The older crowd continued to party until around 1:00 in the morning. Soon after the older group left, a very intoxicated Mr. Cercy, Mrs. Cercy, and a friend staying with them, got ready for bed. Mr. Cercy went to bed in a guest room, while Mrs. Cercy and her four dogs slept in the master bedroom.

         [¶4] The young woman on the sofa testified she woke up around 3:15 in the morning to find Mr. Cercy, half-naked, performing oral sex on her. She stated that when she woke up and touched his head, Mr. Cercy said, "I've been trying to wake you up with my dick and my tongue." She pushed him away and immediately started contacting people she knew at the lake for help, but got no response. Mr. Cercy gave her a ride to a friend's lake house. As she got out of the vehicle, he said, "If you tell anyone else about this . . . or what you woke up to, I'll make sure that you're killed, if not the both of us."

         [¶5] Over the next three days, the young woman reported parts of the assault to multiple friends. Rumors flew around Casper, eventually making their way to the young woman's father. After the young woman and her father talked, they decided to report the assault to the police.

         [¶6] The State charged Mr. Cercy with: (1) first-degree sexual assault, requiring sexual intrusion, based on the theory that the victim was helpless and could not have consented; (2) second-degree sexual assault, requiring sexual intrusion, on the theory that Mr. Cercy caused submission of the victim by any means that would prevent resistance by a victim of ordinary resolution; and (3) third-degree sexual assault, requiring sexual contact, based on alternative theories of sexual contact under the circumstances of both first- and second-degree sexual assault. Denying any wrongdoing, Mr. Cercy went to trial in February 2018.

         [¶7] At trial, the State presented evidence indicating that a half-naked Mr. Cercy undressed the unconscious young woman, performed oral sex on her, and threatened her with her life. The young woman testified that she made dozens of attempts to contact people in the early morning hours of June 25, 2017. The State also called witnesses to discuss the young woman's demeanor after the alleged assault and the information she gave about what had happened; as well as expert witnesses to explain the lack of DNA evidence, the activation of Mr. Cercy's phone camera during the hour in question, and the myths surrounding sexual assault victims. After twelve hours of deliberation, the jury sent word that it had reached a decision on two counts and was hung on the third. Mr. Cercy objected to hearing any verdict and moved for a mistrial. Instead, the district court decided to hear the two unanimous verdicts. The jury found Mr. Cercy not guilty of first- and second-degree sexual assault and was unable to reach a decision on third-degree sexual assault. The district court declared a mistrial on the hung count.

         [¶8] Shortly thereafter, the State decided to retry Mr. Cercy for third-degree sexual assault. Mr. Cercy argued the retrial violated double jeopardy. The district court ruled that the State could retry Mr. Cercy and, after a change of venue to Thermopolis, the second trial began in November 2018. The evidence, witnesses, and story were almost identical to those presented during the first trial.

         [¶9] During the second trial, Mr. Cercy asked the district court to prohibit the State from presenting evidence of cunnilingus; to give a limiting instruction whenever the State introduced evidence of cunnilingus; to give several jury instructions aimed at ensuring the jury did not convict based on acquitted conduct; and to use a particularized verdict form that required the jury to explain the factual basis for conviction. The district court denied all requests. The jury returned a guilty verdict, and the district court sentenced Mr. Cercy to 6 to 8 years in prison. This appeal followed.


         [¶10] Mr. Cercy urges us to decide this case on double jeopardy grounds. We first address the threshold issue of whether the existence of a second trial violated the prohibition against double jeopardy.

         I. Mr. Cercy's second trial for third-degree sexual assault did not violate the prohibition against double jeopardy

         A. Double Jeopardy

         [¶11] The Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits any person from being "twice put in jeopardy of life or limb" for the same offense. U.S. Const. amend. V; Currier v. Virginia, ___ U.S. ___, ___, 138 S.Ct. 2144, 2149, 201 L.Ed.2d 650 (2018). In Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970), the Supreme Court held that the rule of collateral estoppel "is embodied in the Fifth Amendment guarantee against double jeopardy." Mr. Cercy argues this doctrine precluded a second trial in his case.[1]

         [¶12] In Ashe, four masked men robbed six men playing poker. Id. at 438, 90 S.Ct. at 1191. The state charged Mr. Ashe with robbing one of them. Id. At trial, Mr. Ashe argued that he was not one of the masked robbers, and the jury returned a not-guilty verdict. Id. at 439, 90 S.Ct. at 1192. The state then charged him with robbing a different poker player. Id. At the second trial, Mr. Ashe again asserted that he was not one of the robbers. Id. at 440, 90 S.Ct. at 1192. The second jury convicted Mr. Ashe. Id. The Supreme Court reversed, holding that the second trial violated the prohibition against double jeopardy. Id. at 445-47, 90 S.Ct. at 1195-96. The Court reached that conclusion by considering whether, after "taking into account the pleadings, evidence, charge, and other relevant matter [of the prior proceeding], . . . a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Id. at 444, 90 S.Ct. at 1194. The Court found:

The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers. And the jury by its verdict found that he had not. The federal rule of law, therefore, would make a second prosecution for the robbery of [the second poker player] wholly impermissible.

Id. at 445, 90 S.Ct. at 1195.

         [¶13] Mr. Cercy argues Ashe governs his case because his defense at both trials was that he was asleep in another room the entire time and had no contact with the young woman. Thus, under his analysis, retrial for third-degree sexual assault violated double jeopardy because no rational jury could find he was not present for first- or second-degree sexual assault but was for third-degree sexual assault. On its face, this argument has some appeal. However, "a rational jury could have grounded its verdict upon an issue other than that which [Mr. Cercy] seeks to foreclose from consideration." Subsequent cases applying Ashe help to clarify the distinction.

         [¶14] In Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009), the Supreme Court considered the Ashe doctrine's application to hung counts. There, Mr. Yeager was tried for multiple counts of securities fraud and insider trading. Id. at 114, 129 S.Ct. at 2363. The jury returned not guilty verdicts on the fraud charges and hung on the insider trading charges. Id. at 115, 129 S.Ct. at 2364. The government obtained a new indictment, and Mr. Yeager moved to dismiss. Id. Mr. Yeager brought an interlocutory appeal arguing double jeopardy barred his retrial. Id. at 115-16, 129 S.Ct. at 2364-65. On petition for certiorari, the Supreme Court held "the consideration of hung counts has no place in the issue-preclusion analysis. . . . To identify what a jury necessarily determined at trial, courts should scrutinize a jury's decisions, not its failures to decide." Id. at 122, 129 S.Ct. at 2368. Thus, under Yeager, we give no weight to the fact that a jury failed to reach a verdict.

         [¶15] The Supreme Court then looked to the charges and concluded that one element, the possession of insider information, was a critical issue of ultimate fact for both the securities fraud counts and the insider trading counts. Id. at 119-23, 129 S.Ct. at 2366-69. Thus, "if the possession of insider information was a critical issue of ultimate fact in all of the charges . . ., a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element." Id. at. 123, 129 S.Ct. at 2368-69.

         [¶16] Together, Ashe and Yeager instruct that we must determine what the jury "necessarily decided" in the first trial to determine whether double jeopardy precluded a second trial. Ashe, 397 U.S. at 443, 90 S.Ct. at 1194; Yeager, 557 U.S. at 119, 129 S.Ct. at 2366. Yeager and cases applying it look to the facts and elements necessary to prove each charge. Yeager, 557 U.S. at 119-23, 129 S.Ct. at 2366-69; United States v. Hoeffner, 626 F.3d 857 (5th Cir. 2010) (holding functional acquittal of honest services fraud did not decide a critical issue of ultimate fact in the remaining charge of property fraud); Jones v. State, 797 S.E.2d 461 (Ga. 2017) (holding a jury verdict finding the defendant did not intend to kill the victim in one trial did not preclude a finding that he intended to cause the victim physical pain and, thus, double jeopardy did not prohibit retrial for cruelty to children and felony murder); Commonwealth v. Leonard, 805 S.E.2d 245 (Va. 2017) (holding collateral estoppel inapplicable where defendant was trying to bind the Commonwealth to a prior evidentiary ruling, not seeking to preclude it from relitigating a factual finding made by a prior court); State ex rel. Taylor v. Janes, 693 S.E.2d 82 ( W.Va. 2010) (retrial not precluded where the jury acquitted defendant of conspiracy to commit first-degree murder and hung on first-degree murder because the conspiracy acquittal did not necessarily decide whether the defendant killed the victim). Finally, as the Supreme Court recently cautioned, the Ashe double jeopardy bar is a high one.

Ashe's suggestion that the relitigation of an issue can sometimes amount to the impermissible relitigation of an offense represented a significant innovation in our jurisprudence. Some have argued that it sits uneasily with this Court's double jeopardy precedent and the Constitution's original meaning. See, e.g., Ashe, supra, at 460-461, 90 S.Ct. 1189 (Burger, C.J., dissenting); Yeager, supra at 127-128, 129 S.Ct. 2360 (Scalia, J., dissenting). But whatever else may be said about Ashe, we have emphasized that its test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant's favor in the first trial. See Yeager, supra, at 119-120, 129 S.Ct. 2360; id., at 127, 129 S.Ct. 2360 (Kennedy, J., concurring in part and concurring in judgment); id., at 133-134, 129 S.Ct. 2360 (Alito, J., dissenting).

Currier, ___ U.S. at ___, 138 S.Ct. at 2149-50.

         [¶17] The Tenth Circuit's analysis in United States v. Wittig, 575 F.3d 1085 (10th Cir. 2009), is instructive. There, the defendants were charged with various counts of wire fraud, laundering the proceeds of wire fraud, circumvention of internal controls, and conspiracy to commit wire fraud. Id. at 1092-93. The first trial resulted in a hung jury. Id. at 1093. The second trial resulted in convictions which the defendants appealed. Id. On appeal from the second trial, the Tenth Circuit found that the government had failed to present any evidence on one of the elements of wire fraud and reversed the wire fraud and laundering the proceeds of wire fraud convictions. Id. at 1094. The court also reversed the remaining convictions because the jury was not properly instructed. Id. The government proceeded to a third trial on the counts reversed for instructional error and defendants objected based on double jeopardy. Id. at 1095. The court denied the defendants' motion and an interlocutory appeal followed. Id.

         [¶18] The Tenth Circuit, applying the double jeopardy doctrine of collateral estoppel, asked two questions: "[f]irst, is the issue the defendants wish to foreclose from trial the actual basis for their prior acquittal? Second, is the same issue necessary to the prosecution's case in this proceeding? If both questions yield affirmative answers, collateral estoppel bars retrial of the issue." Id. at 1098 (internal citation omitted). The court in Wittig answered the first question easily because the first reversal (acting as an acquittal) resulted from the government's failure to prove an element of wire fraud- specifically it failed to show that SEC reports regarding personal use of the company airplane were false. Id. The court moved to the second question and found that the indictment included much broader conduct than the acquitted conduct and that the government could prove the defendants engaged in a conspiracy to commit wire fraud without relitigating whether the SEC reports about the private use of the company plane were false. Id. at 1099. The court noted that "just because the defendants may not have succeeded in either committing wire fraud or money laundering, [does not mean] they did not conspire to do those things. . . . The conspiracy to commit money laundering charge is therefore not barred by the acquittal for wire fraud." Id. at 1104 (emphasis in original).

         [¶19] Mr. Cercy bears the burden of demonstrating that the jury's acquittals on first- and second-degree sexual assault decided a critical issue of ultimate fact in the third-degree count. Bravo-Fernandez v. United States, ___U.S.___, ___, 137 S.Ct. 352, 360, 196 L.Ed.2d 242 (2016). In his first trial, the State charged Mr. Cercy with one count each of first-, second-, and third-degree sexual assault.[2] The jury acquitted Mr. Cercy of first- and second-degree sexual assault. Double jeopardy only bars Mr. Cercy's retrial for third-degree sexual assault if these acquittals necessarily decided an issue critical to the third-degree charge in Mr. Cercy's favor. Thus, we examine the sexual assault statutes to determine whether the jury could find Mr. Cercy guilty of third-degree sexual assault on an issue not resolved in his favor in the first trial.

         1. Statutory Interpretation of Wyoming Sexual Assault Statutory Scheme

         [¶20] "Statutory interpretation is a question of law, which we consider de novo." Bear Cloud v. State, 2013 WY 18, ¶ 14, 294 P.3d 36, 40 (Wyo. 2013). In Wyoming, first- and second-degree sexual assault occur when an actor inflicts sexual intrusion on a victim. Wyo. Stat. Ann. § 6-2-302(a), Wyo. Stat. Ann. § 6-2-303(a) (LexisNexis 2019).[3] In contrast, third-degree sexual assault specifically excludes sexual intrusion:

(a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:
(iii) The actor subjects a victim to sexual contact[[4] under any of the circumstances of [first-degree sexual assault] or [second-degree sexual assault] without inflicting sexual intrusion on the victim and ...

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