The jury in the trial of Casper businessman Tony Cercy came close to finding him guilty on a felony count of third-degree sexual assault last month, according to a court document filed in Natrona County District Court late last week.

Last week, District Attorney Mike Blonigen announced he would retry Cercy on that count because of the weight of the evidence and speaking with some of the jurors in the first case.

Third-degree sexual assault is a felony punishable by up to 15 years of imprisonment.

At the end of an eight-day trial on Feb. 22, a jury found Cercy not guilty of first-degree sexual assault (rape) and second-degree sexual assault of a then 20-year-old woman at his residence at Alcova Lake in June. The jury hung on the third-degree count, resulting in a mistrial.

Cercy's defense team, led by Pamela Mackey of Denver, immediately responded to Blonigen's decision and asked the court to acquit him because of the not guilty verdicts on the first two counts.

Blonigen immediately responded to that, saying the three original counts contain different elements, specifically about sexual contact compared to sexual intrusion, as well as different types of intent.

Courts grant judgments of acquittal only under rare circumstances, he added.

Cercy's attorneys also ignore Wyoming law about inconsistent verdicts, and don't recognize that "sexual contact" and "sexual intrusion" can overlap, Blonigen wrote.

Cercy's attorneys claim the jury found the alleged victim's testimony not credible, but they don't support that claim, he wrote.

"The jury's decision could have been based on compromise, lack of understanding of the instructions or simple mistake," Blonigen wrote.

"In fact, post-trial information suggests the jury was strongly in favor of conviction," he wrote.

Neither Cercy nor his attorneys can presume from the mistrial that the prosecution has no case for a retrial, Blonigen wrote.

"The evidence could be found to be stronger for contact or the jury may simply have felt compromise was appropriate," he wrote. "What is clear is that sufficient evidence exists upon which the jury could easily have found sufficient evidence of sexual contact, even if they did not believe intrusion was proven beyond a reasonable doubt."

The case began last summer when the alleged victim told a Natrona County Sheriff's investigator she, her boyfriend, friends and acquaintances arrived at Alcova Lake on the evening of June 23 and spend the next day at the lake. She was drinking heavily and passed out on the rear deck of a boat at Sandy Beach.

On Saturday evening, they went to another location and about 9:45 p.m. went to a residence on Cedar Drive North owned by Cercy.

She said she went into the residence, passed out on the couch in the middle of the living room, and woke up to find Cercy performing oral sex.

Nearly all of her clothing had been removed and Cercy was naked from the waist down, according to court records.

The alleged victim said he gave her a ride to a friend's place at the Alcova Trailer Park and threatened to kill her and himself, according to court records.

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