455 P.3d 678
Wyo.2019Background:
- On June 24–25, 2017, a young woman passed out on a couch at Tony Cercy’s lake house; she later testified she awoke to Cercy performing oral sex (cunnilingus) and that he threatened her life.
- State charged Cercy with first- and second-degree (both require sexual intrusion) and third-degree sexual assault (requires sexual contact and expressly excludes sexual intrusion).
- First jury acquitted Cercy of first- and second-degree counts and was hung on third-degree; the court accepted the acquittals and declared a mistrial on the third count.
- The State retried Cercy on the third-degree count in a different venue; evidence at retrial again heavily featured the alleged cunnilingus.
- The district court refused defense requests for limiting instructions, a specific verdict form, and to bar evidence of cunnilingus; the retrial jury convicted and sentenced Cercy to 6–8 years.
- On appeal, the Wyoming Supreme Court reversed the conviction, holding double jeopardy did not bar retrial but that instructional and evidentiary errors required reversal and remand.
Issues:
| Issue | Plaintiff's Argument (Cercy) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether retrial on third-degree sexual assault violated double jeopardy | Acquittals of first- and second-degree (cunnilingus/intrusion) necessarily preclude relitigation; retrial barred by collateral estoppel (Ashe) | Acquittals did not necessarily decide every issue essential to third-degree charge; third-degree excludes intrusion and indictment alleged broader sexual-contact theories | Retrial did not violate double jeopardy because third-degree statute excludes sexual intrusion and the Bill of Particulars alleged broader contact beyond cunnilingus |
| Whether jury was properly instructed on third-degree elements and limits on considering cunnilingus | Requested limiting and statutory instructions were necessary so jury could not convict based on acquitted cunnilingus | Court’s given instructions and statutory definitions sufficed | Court abused its discretion; instructions left doubt whether jury could convict based on cunnilingus — reversal required; on remand jury must be instructed that cunnilingus cannot support third-degree conviction |
| Whether admission of evidence of cunnilingus on retrial is governed by double jeopardy or evidentiary law | Admission of acquitted conduct re‑litigation risks double jeopardy; evidence should be barred | Evidence of acquitted conduct is governed by Rules of Evidence (404(b)); Dowling and Eatherton permit admission with proper limiting instruction | Evidentiary law governs; admission is subject to a Gleason/404(b) analysis and, upon request, a limiting instruction is required; trial court’s 404(b) ruling was cursory and failed to give required limiting instruction |
| Whether a special verdict form requiring jury to identify specific sexual-contact theory was required | Needed to ensure conviction was not based on acquitted conduct | Precedent (Jordin) forecloses requiring unanimity as to alternative factual theories that satisfy an element | Denial of requested verdict form not an abuse; unanimity not required on alternative factual means of proving an element |
Key Cases Cited
- Ashe v. Swenson, 397 U.S. 436 (1970) (establishes collateral-estoppel double jeopardy test)
- Yeager v. United States, 557 U.S. 110 (2009) (hung counts are irrelevant to what prior jury necessarily decided)
- Currier v. Virginia, 138 S. Ct. 2144 (2018) (Ashe’s issue-preclusion test is demanding)
- Dowling v. United States, 493 U.S. 342 (1990) (admission of acquitted conduct is governed by evidentiary rules, not automatically barred by double jeopardy)
- Eatherton v. State, 810 P.2d 93 (Wyo. 1991) (Wyoming applies Dowling; acquitted conduct may be admissible under evidentiary rules)
- United States v. Wittig, 575 F.3d 1085 (10th Cir. 2009) (analysis of when acquitted conduct bars retrial and when broader indictment permits relitigation)
- Gleason v. State, 57 P.3d 332 (Wyo. 2002) (test for admissibility of similar-act/intrinsic evidence under W.R.E. 404(b), including required limiting instruction)