from the District Court of Natrona County The Honorable
Daniel L. Forgey, Judge.
Michael Bennett, Bennett Law Group, P.C., Cheyenne, Wyoming;
Sean Connelly, Connelly Law, LLC, Denver, Colorado. Argument
by Mr. Connelly.
Bridget Hill, Attorney General; Jenny Craig, Deputy Attorney
General; Christyne Martens, Senior Assistant Attorney
General; Benjamin Fischer, Assistant Attorney General.
Argument by Mr. Fischer.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
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.
Mr. Cercy raised several issues on appeal which we rephrase
1. Did the decision to retry Mr. Cercy for third-degree
sexual assault violate the prohibition against double
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?
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.
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."
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.
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.
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.
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.
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
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
Mr. Cercy's second trial for third-degree sexual assault
did not violate the prohibition against double jeopardy
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
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]
Id. at 445, 90 S.Ct. at 1195.
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.
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.
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.
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
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.
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.
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
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. 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
Statutory Interpretation of Wyoming Sexual Assault Statutory
"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). 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[ under any of the circumstances of
[first-degree sexual assault] or [second-degree sexual
assault] without inflicting sexual intrusion on the
victim and ...