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Name: People v. Ennis
Case #: G041481
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/01/2010

The “inherent improbability” standard for rejecting evidence on appeal applies only when evidence is physically impossible or false on its face without resort to inferences or deductions. A jury found appellant guilty of various sex offenses based on the sexual abuse of his daughter and step-daughter. Appellant argued on appeal the convictions should be reversed because the girls’ statements were “inherently improbable and unworthy of belief” since one of the girls recanted at trial and there were inconsistencies in the testimony of the other. The court rejected the claim. Reviewing courts almost never reverse a judgment by applying the inherent improbability standard because doubts about credibility are left for the jury to resolve. The standard is applied only when the contested evidence is physically impossible or the falsity of testimony is apparent on its face without resorting to inferences or deductions. Here, appellant was really arguing that other evidence in the case suggested the witnesses were lying, not that the alleged acts of abuse were physically impossible. So, the inherent improbably standard does not apply.
The trial court did not abuse its discretion in admitting evidence of uncharged sexual abuse under Evidence Code section 1108. Appellant argued it was an abuse of discretion for the court to admit evidence that appellant also committed additional acts of molestation while the family lived in Arizona. The court agreed the evidence seemed to be of slight probative value. Evidence that a perpetrator molested the same victim even more times does not advance the prosecution’s case. Since the evidence is from and about the same victim, it does not corroborate this case in any significant way. But in the same token the evidence does not have significant prejudicial effect. The court found it hard to imagine how hearing the same source relate evidence about additional crimes against her would change anything in the eyes of the jury. The prejudicial effect did not substantially outweigh the probative value.
A tentative pretrial evidentiary ruling does not preserve an issue for appellate review. Appellant argued the trial court erred in disallowing his proffered expert testimony. Respondent countered the issue was forfeited because the trial court did not actually rule on the issue, it just gave a tentative ruling that the evidence would be excluded. The Court of Appeal found the claim forfeited. A tentative pre-trial evidentiary ruling will not preserve the issue for appeal where appellant could have, but did not renew the offer of proof or objection and press the court for a final ruling.
The failure to object to alleged prosecutorial misconduct forfeits the issue for appeal. Appellant complained that the prosecutor’s comments in closing argument diluted the burden of proof. Respondent claimed the issue was forfeited for failure to object and request an admonition. The court agreed with respondent. Any concern that the prosecutor misled the jury with regards to the reasonable doubt standard could have been cured with an admonition from the trial court.