Court Summaries, 0420 WYBJ, Vol. 43 No. 2. 44

Position:Vol. 43 2 Pg. 44

Court Summaries

Vol. 43 No. 2 Pg. 44

Wyoming Bar Journal

April, 2020

Tony Scott Cercy v. State of Wyoming

2019 WY 131

S-19-0099

December 27, 2019

In June 2017, after consuming a large amount of alcohol, a young woman attended a party at an Alcova Lake house owned by Tony Cercy. During the party, the young lady fell asleep on the sofa. When the other party goers were ready to leave, they asked Cercy’s wife if the young woman could stay the night on the sofa. Mrs. Cercy agreed.

The young woman testified that she woke up around 3:15 a.m. to find Mr. Cercy, half-naked, performing oral sex on her. She pushed him away and Cercy later gave her a ride to a friend’s lake house.

When police were notified, the state charged Cercy with: (1) first-degree sexual assault, requiring sexual intrusion, based on the theory that the victim was helpless and could not consent; (2) 2nd degree sexual assault, requiring sexual intrusion, on the theory that Cercy caused submission of the victim; and (3) 3rd sexual assault, requiring sexual contact, based on alternative theories of sexual contact under the circumstances of both first- and second-degree sexual assault.

The jury found Cercy not guilty of first and second-degree sexual assault and was unable to reach a decision on the third-degree sexual assault charge.

Tereafter the State decided to retry Cercy for third-degree sexual assault. The State presented evidence indicating that Cercy undressed the unconscious woman, performed oral sex on her, and threatened her with her life. During the second trial, Cercy proposed various instructions telling the jury it could not convict him for third-degree sexual assault based on a finding that he committed cunnilingus on the victim. The district court denied those requests. The jury found him guilty.

On appeal, the Supreme Court reversed and noted that in Wyoming, first and second-degree sexual assault occurs when an actor inflicts sexual intrusion on a victim. Third-degree sexual assault excludes sexual intrusion and only applies if the actor subjects a victim to sexual contact without inflicting sexual intrusion and without causing serious bodily injury to the victim. In other words, third-degree sexual assault cannot include sexual intrusion and cunnilingus is sexual intrusion.

Under the circumstances of this case, where testimony pertaining to cunnilingus pervaded the second trial, the jury instructions left “doubt as to the circumstances under which the crime can be found to have been committed.” The district court erred in refusing to give an instruction that limited the purpose for which the jury could consider the evidence of cunnilingus. Further, the court failed to provide the jury with the requested instruction, including the language of the third-degree sexual assault statute, so the jury could not have known that the legislature specifically excluded sexual intrusion from the crime. Finally, the definitions provided never explained the difference between “sexual intrusion” and “sexual contact.”

As the Supreme Court held that the district court abused its discretion in failing to adequately instruct the jury, the case was reversed and remanded.

Bruce Hayse, M.D. and Paul Cassidy v. Wyo. Bd. of Coroner Standards

2020 WY 4

S-19-0109

January 8, 2020

Paul Cassidy and Dr. Bruce Hayse alleged that Teton County Coroner, Dr. Brent Blue, committed misconduct during a coroner’s inquest into the death of Anthony Birkholz. They also sought to have the Board of Coroner Standards investigate Blue’s alleged misconduct. The Board refused to investigate because it concluded that it did not have statutory authority to do so. The Board asserted that under W.S. § 7-4-211 its “narrow purpose . . . is to develop and promulgate training standards” and “enforce compliance with those standards.” The district court affirmed the Board’s refusal to investigate. Cassidy and Hayse appealed.

On appeal, the Supreme Court affirmed and noted that W.S. § 7-4-211(c) directs the Board to promulgate various standards, nearly all of which relate to education and training. Subsection (c) (vi) directs the Board to provide for the review of complaints regarding a coroner’s compliance “with any provision of W.S. § 7-4-103.” Notably, subsection (c)(vi) authorizes Board investigation for failure to...

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