Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. (Super. Ct. No. 08CF0060)
The opinion of the court was delivered by: Bedsworth, J.
CERTIFIED FOR PUBLICATION
William Cook Ennis II was convicted of various crimes involving sexual molestation of his daughter, then age 8, and his stepdaughter, then age 14. He was sentenced to prison for an aggregate term of 64 years.*fn1
Ennis' primary contention on appeal is that the evidence adduced at trial was insufficient to support his convictions. He acknowledges there was testimony which, if believed, was sufficient to establish he did commit the crimes of which he was convicted, but argues that testimony was inherently improbable - by which he means full of contradictions, inconsistencies and implausibilities - and thus no rational jury could have relied upon it as a basis to convict. The contention is unpersuasive.
The "inherently improbable" standard for rejecting testimony on appeal is not merely an enhanced version of implausibility, as Ennis seems to be asserting. "Highly implausible" is still an argument reserved for the trier of fact. Inherently improbable, by contrast, means that the challenged evidence is "unbelievable per se," such that "the things testified to would not seem possible." (Lane v. Safeway Stores, Inc. (1939) 33 Cal.App.2d 169, 175.) The determination of inherent improbability must be made without resort to inference or deduction, and thus cannot be established by comparing the challenged testimony to other evidence in the case.
Because Ennis' inherent improbability claim is based entirely on comparisons, contradictions and inferences, it amounts to nothing more than an attack on witness credibility, and cannot be the basis for a reversal of the judgment on appeal.
Ennis also argues the trial court erred by (1) allowing evidence of additional, uncharged sexual offenses to be introduced pursuant to Evidence Code section 1108, (2) excluding his proffered expert testimony about police interrogation of minor child abuse victims, and (3) that the prosecutor committed misconduct in his closing statement. We reject these contentions as well. In the circumstances of this case, in which the uncharged sexual offenses were largely carried out against one of the same victims (but in a different jurisdiction) and were supported by the same witness testimony as the crimes in this case, we conclude the additional evidence was not the sort "which uniquely tends to evoke an emotional bias against the defendant as an individual . . . ." (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Whatever emotional bias might have been invoked against Ennis at trial, would have been fully invoked by the multitude of horrific crimes actually charged in this case. The additional evidence suggesting he may have done more of the same to one of those victims, and perhaps to another family member as well, in Arizona, would not significantly change the jury's perception of him.
As for Ennis' assertion the court refused to allow his proffered expert testimony, we agree with the Attorney General's contention the court made no such ruling. The court merely indicated a tentative decision to disallow the evidence, but then expressly granted Ennis the right to argue the issue further on the next court day, when the expert was scheduled to testify regarding another issue. Ennis apparently elected not to do so, and made no further effort to introduce the testimony. Consequently, the issue was waived.
Finally, Ennis complains of prosecutorial misconduct. But, he concedes, he offered no objection to the prosecutor's challenged remarks at the time they were made in closing argument, and requested no curative instruction to the jury. Moreover, we find no support in the record for Ennis' assertion it would have been "futile" to do so. Accordingly, any objection to the challenged comments was waived.
Ennis' convictions for sexual abuse were based primarily on the statements to police and in-court testimony given by his ex-wife, K., his daughter C. - eight years old at the time of the crimes alleged - and his stepdaughter C.S., who was 14 years old at the time of the alleged crimes.
These witnesses accused Ennis of what can only be described as horrific sexual abuse of both C. and C.S., over a period of several months while the family lived in San Clemente in late 2003. K., who had a drug dependency and mental health issues, was aware of the abuse, and directly witnessed much of it.*fn2 Ennis' alleged acts included vaginal and anal intercourse with C., requiring C. to orally copulate him in front of C.S., requiring C. to orally copulate a friend of his, forcing C.S. to orally copulate him, and forcibly copulating C.S.
In late 2003 or early 2004, Ennis, K. and C. went to live with Ennis' parents in Arizona, while C.S. was sent to live with her father. While living in Arizona, Ennis allegedly committed further acts of sexual abuse against C., and against her younger sister who was disabled with multiple sclerosis.
In April of 2004, Ennis and K. appointed Ennis' parents, Laura and Bill Ennis, to act as legal guardians of their children, including C. and two younger siblings. K. claimed she did so only because Ennis forced her to. Ennis moved out of his parents' house in October of 2004, because his parents felt he and K. were fighting too much in front of the children. After he moved out, Ennis began seeing another woman, and there was evidence K. was angry and jealous about his new relationship.
K. continued to reside in the Ennis home until February of 2005. According to Laura, K. was asked to leave the home after she accused Bill of asking her to have sex with him.
In the first year after C.S. began living with her father in early 2004, she told only one friend about having been sexually molested by him. But in February of 2005, C.S.' stepmother, T., asked her if Ennis had ever done anything to her. C.S. told her he had. She had not confided this information before because she was embarrassed and afraid people would think her "weird."
Police were called, and Detective Larry Matthews of the Mohave County Sheriff's Office, interviewed C. on February 17, 2005. The interview was both audio and videotaped. C. told him that both Ennis and K. had orally copulated her while they were living in Ennis' parents' home. She also related other incidents of sexual abuse in Arizona, including some involving her disabled younger sister, and others which took place while she visited Ennis and his new girlfriend at a hotel. C. also told Matthews of sexual abuse that took place while the family was living in San Clemente. C. later recanted these claims, and testified at trial that none of it was true.
C.S. was interviewed by a police officer on February 11, 2005. She related three instances of sexual abuse during the time she lived with Ennis and K. in San Clemente.
C.S. was also interviewed by representatives of the Orange County District Attorney's Office in January of 2007. In that interview, C.S. described five separate severe incidents of sexual abuse, along with two others of lesser severity. The details she ...