The availability of expert witnesses for the prosecution’s case against Tony Scott Cercy led to an early recess for the weekend on November 16th, in Hot Springs County.
The final witness was not available on Friday afternoon, and the defense team said that taking the witness out of turn would be a violation of Cercy’s constitutional rights. As a result, Natrona County District Court Judge Daniel Forgey recessed the proceedings to begin again on Monday morning, when the prosecution’s final witness is available.
Cercy was found not guilty on one count of first degree sexual assault and one count of second degree sexual assault in February, in Natrona County after a jury could not reach a unanimous verdict on a charge of third degree sexual assault.
It is that charge of third degree sexual assault that Cercy faces in the facilities of the Hot Springs County District Court presided over by the Natrona County District Court.
The alleged victim in the case claims that after a day of drinking with friends at the lake in June of 2017, she attended a party at the Cercy home near Alcova Reservoir. The woman claims to have passed out at the party and awoke in the early morning hours the following day to find Cercy performing oral sex on her.
Before the court recessed, the jury heard from two expert witnesses regarding forensic evidence being presented, by the prosecution in the case.
Shortly after 9:30 am, Friday, the jury heard testimony from a retired choir teacher and former audio instructor from Casper College, who said that he had experience teaching recording technologies, studios, and equipment and had a specific interest in restoring audio.
The witness testified that he had been given two short video files, that were automatically generated by an iPhone in live picture mode. The witness said that in live picture mode, a photo taken will also result in a short video and audio file being created, that records .75 seconds before and after a photo is taken with the stock iPhone photo application.
The witness had been given the files from a phone, that has been identified in court as belonging to Cercy. The files are alleged to have been taken during a period of time in question, when the alleged assault is to have taken place. Cercy has denied the accusations against him, and said that he was asleep during the time of the alleged assault.
Natrona County District Attorney Michael Blonigen asked questions of the witness, walking through the process of extracting audio data from the short video clips, and how background sounds were diminished and other sounds were boosted on the two files, to make them easier to be heard.
Sounds on the files were not expertly identified, but the witness was asked to give his lay opinion on a few of the sounds audible on the analyzed files. The witness said that they sounded like bird song, from multiple birds. The Witness further said that his data showed that the phone was likely in direct line of sight of the sounds, and the microphone was not otherwise encumbered.
Denver-based defense attorney Pamela Mackey clarified with the witness, on cross-examination, that the two clips were created four seconds apart, and that a span of time passed between the beginning of the first clip, and the end of the second clip, of 7 total seconds, with the time in the middle being unrecorded.
The defense attorney then asked if the witness had detected any discernible sound of either a loud motor or human conversation in either of the two files. The witness confirmed that he had not detected any such sound, louder than the background noise, which had been eliminated from both files during the analysis.
Both sound files were played for the jury, as the raw audio collected from the phone, and through various stages of analysis.
The day concluded with expert testimony from a DNA Analyst from the Wyoming State Crime Laboratory. Blonigen again asked about the collection and storage of potential forensic evidence, including how DNA can transfer.
Ultimately discussed were samples taken from the accuser’s body, her underwear, and samples taken from the couch where the accuser alleges that the assault took place.
Swabs taken from the accuser’s cervical area and from her underwear were said to have tested positive for seminal fluid, with a DNA match to the accuser’s boyfriend at the time. It has been testified that the accuser had consensual sex with her then-boyfriend, two days prior to the alleged assault. The tests were also said to have excluded Cercy.
Those tests were also discussed in the original trial, and were conducted in 2017.
Other tests, conducted in 2018, were also discussed. This included the testing of couch cushion covers for seminal fluid, saliva, and other DNA.
Samples from two of the cushion covers on the couch were said to have tested positive for DNA mixtures.
On the center couch cushion, the witness testified that a mixture of three DNA profiles were discovered. The accuser’s then-boyfriend was excluded by the test. The test did show results that were inclusive of both the accuser and Cercy. The test was also inclusive of a third, unknown DNA profile.
Another cushion cover at the foot of the couch was also tested, showing a DNA mixture of four profiles. In this case, the results were inclusive of the accuser, and three unknown profiles. Comparisons to the accuser’s then-boyfriend and Cercy were inconclusive, or not able to be shown as included or excluded.
Blonigen asked the witness to discuss the statistical analyses arrived at, and the witness explained that the center couch cushion was 52.6 sextillion times more likely to be a DNA mixture of the accuser, Cercy, and a third unknown profile, than to be just from Cercy and two unknown profiles.
Further, she explained that the results showed that it was 5.62 million times more likely that the DNA mixture contained the DNA of the accuser, Cercy, and an unknown profile, than a mixture of the accuser and two unknown profiles.
The witness also added that the results of the analysis on the cover that had been located at the foot of the couch was 10.5 billion times more likely to be from the accuser and three unknown profiles, than to be from four totally unknown profiles.
On cross-examination, Mackey confirmed with the witness that the Wyoming State Crime lab only conducts tests for Law Enforcement or other government entities and that private lawyers would not be able to ask for such testing. Further that law enforcement sends the items to the lab that they want tested.
She further confirmed that the testing of samples collected from the accuser’s cervical area had shown positive for seminal fluid, and the DNA profile was inclusive for the accuser’s then-boyfriend, but excluded Cercy.
Swabs of the accuser’s labia minora tested positive for male DNA, that was inclusive of the accuser’s then-boyfriend, and excluded Cercy. Further, that tests of the underwear worn by the accuser also showed inclusive results for her then-boyfriend, and also excluded Cercy.
Mackey also confirmed with the witness that Cercy was the owner of the couch that was tested, and that the witness would be “not surprised” to find the DNA of an owner, on their own couch.
The prosecution announced that they would have one more witness before resting, who will take the stand on Monday morning. After that the defense will begin their case.
The case was moved to Hot Springs County county in June of 2018, after members of the Cercy defense team asked Natrona County District Court for a change-of-venue, citing media coverage of the events surrounding the February trial.