A judge has denied a request to exclude the testimony of a psychologist who is expected to testify on behalf of a man who is scheduled to be tried for third-degree sexual assault in Thermopolis, Wyoming.

The Alleged Assault

In June 2017, a 20-year old woman claimed that she was assaulted at Tony Cercy’s home at Alcova Lake. The woman claimed that she woke around 3 a.m. on June 25, 2017 to find Cercy performing oral sex on her. The woman testified that she immediately pushed him away and that Cercy told her that he had been trying to wake her by performing sexual acts on her. The woman said that she fell asleep fully clothed but awoke with only a bra on and found Cercy naked from the waist down. The woman told authorities that Cercy threatened to kill her if she told anyone about the incident.

Cercy denied having any sexual contact with the woman. He claimed that he went to sleep at 2 a.m. and did not wake until 8 a.m. the next morning and the alleged victim had left his house at some point during the night. However, data from a cell phone health app indicates that Cercy took 21 steps ending at 3:36 a.m. and another 41 steps ending at 3:41 a.m.  Cercy’s phone also contains two videos and four photographs taken at 3:46 a.m. on the morning of the alleged assault.

First Jury Trial

In February, Cercy went to trial for one count of first-degree sexual assault, one count of second-degree sexual assault, and one count of third-degree sexual assault. The jury acquitted Cercy of the first-degree and second-degree assault charges but could not reach a verdict on the one count of third-degree sexual assault, or sexual contact without penetration. Natrona County District Court Judge Daniel Forgey declared a mistrial.

Natrona County District Attorney Mike Blonigen filed a motion to retry that count. Judge Forgey granted that motion, but also granted Cercy’s motion to move the trial to Hot Springs County.

Second Trial

For Cercy’s second trial, his defense team retained Dr. William O’Donohue to testify in his defense. Dr. O’Donohue is an expert on sexual assault and the director of a clinic for treating sexual abuse victims at the University of Nevada-Reno.

The defense team wanted Dr. O’Donohue to rebut Dr. Sherri Vanino’s testimony about the relationship between alcohol and sexual assault reporting, the effects of trauma on recounting experiences of sexual assault, and fabricating a serious allegation like rape.

District Attorney Blonigan objected to Dr. Donohue’s testimony, saying that his proposed testimony “during the upcoming trial would speak directly to and illegally to this specific case; that the proposed testimony would amount to profiling, that ‘certain people do certain things’; and that he would essentially determine the truth or falsehood of witnesses, which is the job of the jury.” The prosecutor’s argument might just as easily apply to the testimony of its own expert witness.

Judge Forgey decided to allow O’Donohue’s testimony. He said that “O’Donohue is properly qualified to testify in response to Vanino’s previous testimony about issues such as consistent reporting of alleged sexual assault victims, the role of trauma and fear, and the effects of alcohol.” The judge said that he would deny some of the testimony that O’Donohue and the defense team wanted to enter, including blaming victims, about whether wives of alleged sexual abusers support their husbands, and false allegations.

Update: After nine hours of deliberation, the jury found Cercy guilty of third-degree sexual assault.