July 31, 2019- State of New Mexico v. Rollie Bruvold, No. A-1-CA-34885

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1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-34885
5 ROLLIE BRUVOLD,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Jacqueline D. Flores, District Judge
9 Hector H. Balderas, Attorney General
10 Marko D. Hananel, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellee
13 	Bennett J. Baur, Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 	Santa Fe, NM
16 for Appellant
17 	MEMORANDUM OPINION
18 	MEDINA, Judge.
19 	{1} 	Defendant Rollie Bruvold appeals his convic~ions for seven counts of criminal
20 sexual penetration 	of a minor (CSPM). 	Defendant raises 	one 	issue-that the
21 	evidence was insufficient to show that the victim was under the age of thirteen for
22 each of the seven counts of CSPM. We conclude the evidence to be sufficient to
Court of Appeals of New Mexico
Filed 7/31/2019 11:47 AM

1 support only one of Defendant's CSPM convictions. We therefore affirm in part and
2 reverse in part.
3 BACKGROUND
4 	{2} 	The following evidence was presented to the jury. Defendant and Jill Bruvold
5 ("Mother") are the parents 	of three daughters, 	Carrie Bruvold, 	Jana Bruvold
6 ("Jana"), and the youngest, C.B. Defendant was sporadically employed and for the
7 most part stayed home while Mother worked. The children attended school until or
8 around the time 	C.B. 	completed kindergarten, 	after which the children were
9 homeschooled. According to Jana, the teachers discovered C.B. had a learning
10 	disability while she was in kindergarten and determined that C.B. would have to
11 	repeat kindergarten, which was unacceptable to Defendant. Afterward, Defendant
12 was in primary charge of homeschooling the three children while Mother worked.
13 	The homeschool curriculum was unstructured, however; and consisted primarily of
14 "P .E." during the day, and reading and math when Mother returned home from work.
15 	{3} 	Defendant was often home alone with his daughters. While home with C.B.,
16 Defendant sometimes walked around the house in the nude which led C.B. to believe
17 the behavior was normal. Defendant also discussed sex with C.B., and when C.B.
18 	was four or five years old Defendant began performing sexual acts on her.
19 	{4} 	C.B. described the following separate acts ofCSPM during her testimony. On
20 one occasion Defendant entered the family room where C.B. was playing with toys
2

1 on the couch. Defendant pulled down his pants and instructed C.B. to "suck on his
2 penis." C.B. complied and the act ended when Defendant ejaculated. C.B. could not
3 recall how old she was when this CSPM occurred. On a separate occasion, C.B. and
4 Defendant were within a camper shell situated on the rear of a truck parked in their
5 driveway. There, Defendant removed his pants and instructed C.B. to "suck his
6 penis" which she did. On another occasion in the camper, Defendant attempted to
7 engage in sexual intercourse with C.B. but was unable to fully penetrate her vagina
8 with his penis. Defendant told C.B. that he would "try again when [she got] older."
9 {5} 	On another occasion, Defendant entered C.B.'s room where she was playing
10 with toys. On that occasion Defendant penetrated her vagina with his index finger
11 	and told C.B. that she could "put markers and crayons up in [her] vagina." On yet
12 another occasion, Defendant removed C.B.'s pants while she was laying on a couch
13 	in the family room and inserted his middle finger into her vagina.
14 	{6} 	Defendant also performed oral sex on C.B. C.B. testified that on one occasion
15 	while she was watching a movie, Defendant walked into the room naked, laid on the
16 floor and C.B. took off her pants and underwear and "sat on his face." Defendant
17 then licked her vagina. On a separate occasion Defendant entered C.B.'s bedroom
18 	while she was playing with toys on her bed, made her lay on her back and began
19 licking her vagina.
3

1 {7} 	Jana testified that she once wa1ked into the den, where all of a sudden C.B.
2 stood and pulled her pants up real fast. Jana was not asked, nor did she testify, how
3 old C.B. was or when the event in the den took place. Jana did testify that in 1995,
4 the family had been interviewed by Children, Youth and Families Department
5 (CYFD), following an incident in which C.B. was discovered "doing something
6 sexually to [a neighbor] boy." At the time, C. B. was six or seven years old. Jana
7 testified that afterward Defendant was very nervous and told them that if anything
8 had been mentioned regarding C.B. or what they had seen, Jana and her sisters would
9 be removed from the family and placed in foster care. Jana also testified that in July
10 2002 when C.B. was thirteen, she walked into Defendant's bedroom and saw
11 	Defendant and C.B. under the covers facing each other. Jana told them they were
12 disgusting. C.B. later testified that she was playing with Defendant's penis over his
13 	pants. 1 A few days later Jana told her therapist about the incident and he called
14 CYFD. The Bernalillo County Sheriffs Office (BCSO) opened an investigation and
15 	conducted a SAFE house interview with C.B. BCSO also conducted an interview
16 with Defendant in which he admitted that sexual activity occurred, but dismis~ed the
17 encounters as "family-type stuff, family interaction." Defendant claimed he was
18 	sought out by C.B. and that "all girls want to be daddy's little lovers." Defendant
1Defendant was not charged with the July 2002 event.
4

1 characterized his 	actions 	as normal 	and stated that it was 	simply a learning
2 	experience.
3 {8} 	Although C.B. testified at trial to specific instances of CSPM, she was unable
4 to recall a specific date for any of the sexual assaults. C.B. testified that the abuse
5 ended in 2002 after she turned thirteen, when her sister walked in on her in
6 Defendant's bedroom. C.B., who was born on July 25, 1988, would have been
7 thirteen years and eleven months-old when the abuse ended.
8 	{9} 	Also 	at 	trial, 	Mother testified that 	it was 	mostly 	Defendant's 	idea to
9 homeschool their daughters and that he was controlling over her. She also testified
10 that she never saw inappropriate interactions between Defendant and C.B. and that
11 	Defendant was in California for medical reasons sometime in 2001.
12 	{10} 	The jury convicted Defendant of seven counts of CSPM, pursuant to NMSA
13 	1978, Section 30-9-1 l(D)(l) (2009). This appeal followed.
14 DISCUSSION
15 	{11} 	In addition to the other elements of CSPM, the jury was instructed that in
16 order to convict Defendant of CSPM, it had to find beyond a reasonable doubt that
17 criminal sexual penetration occurred when C.B. was "under the age of thirteen ( 13 ). "
18 Defendant's challenge to the sufficiency of the evidence only concerns this element.
5

1 Standard of review
2 	{12} 	"The test for sufficiency of the evidence is whether substantial evidence of
3 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
4 reasonable doubt with respect to every element essential to a conviction." State v.
5 Montoya, 2015-NMSC-010, 1 52, 345 P.3d 1056 (internal quotation marks and
6 citation omitted). We "view the evidence in the light most favorable to the guilty
7 verdict, 	indulging all reasonable inferences and resolving 	all 	conflicts in the
8 evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, 126, 128
9 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support a
10 different result. See State v. Rojo, 1999.-NMSC-001, 1 19, 126 N.M. 438, 971 P.2d
11 	829.
12 {13} 	However, despite our deferential approach, our responsibility is to, "ensure
13 	that the jury's decisions are supportable by evidence in the record, rather than mere
14 guess or conjecture." State v. Slade, 2014-NMCA-088, 1 14, 331 P.3d 930 (internal
15 	quotation marks and citation omitted). Our inquiry requires that we, "distinguish
16 between conclusions based on speculation and those based on inferences." Id. "A
17 reasonable inference is a conclusion arrived at by a process of reasoning which is a
18 	rational and logical deduction from facts admitted or established by the evidence."
19 Id. ( alterations, internal quotation marks, and citation omitted). Even still, "when a
20 permissible logical inference may be drawn from the facts, if it must be buttressed
6

1 by surmise and conjecture in order to convict, the conviction cannot stand." Id.
2 (internal quotation marks and citation omitted).
3 The 	Evidence 	Before 	the 	Jury 	was 	Sufficient 	to 	Support 	Only 	One 	of
4 Defendant's Seven Convictions for CSPM.
5 {14} 	C.B. 's testimony that the incidents began when she was "four or five years
6 old" could have led a reasonable juror to infer that at least one of the CSPMs she
7 described took place while C.B. was under the age of thirteen. However for the
8 reasons we explain below, we conclude that the evidence is insufficient otherwise to
9 support a reasonable inference that C.B. was under the age of thirteen when the
10 remaining six CSPMs took place.
11 	{15} 	The State concedes C.B. was unable to provide.a specific time period or age
12 during which the various CSPMs occurred. Nonetheless, the State contends that the
13 	circumstantial evidence before the jury was sufficient to support a rational inference
14 that C.B. was under the age of thirteen when Defendant committed the CSPMs. The
15 	State points to C.B.'s testimony that the assaults started when she was four or five
16 years old, that several incidents began while she was playing with toys, an activity
17 the State contends is consistent with early childhood, and that one of C.B. 's accounts
18 	detailed a statement of Defendant that she could "put markers and crayons up in
19 	[her] vagina[,]" again asserting that markers and crayons are indicative of early
20 childhood.
7

1 {16} 	The State also asserts that the totality 	of the evidence before the jury
2 demonstrated that Defendant was grooming C.B. for sexual exploitation. The State
3 relies on the following evidence: (1) Defendant separated his daughters from friends
4 and other sources 	of sexual education by withdrawing them from school and
5 homeschooling them; (2) Defendant threatened C.B. that she would be "in trouble"
6 and could be "taken to a concentration camp[,]" if she ever told anyone; (3) in 2002
7 C.B. was angry that Jana thought it was disgusting that C.B. and Defendant were in
8 bed together; (4) when C.B. was seven she was caught engaging in sexual activity
9 with a neighbor boy; and (5) Defendant told the police that "all girls want to be
10 daddy's little lovers."
11 	{17} 	A similar issue was addressed by our Supreme Court in State v. Sena, 2008-
12 NMSC-053, 144 N.M. 821, 192 P.3d 1198. In Sena the defendant appealed two
13 	convictions for criminal sexual contact with a minor ("CSCM") arguing that the
14 evidence was insufficient to establish more than one count. Id. ,r,r 6- 7. Although
15 	there was no question as to whether the child was under the age of thirteen during
16 the charging period, at issue was what, if any, abuse occurred during the charging
17 period. At trial the child victim had difficulty identifying the exact dates of each
18 	occurrence. To aid the child's recollection, the state utilized bench mark events in
19 the child's life so that the events could be placed within the charging period. Even
20 still the child's testimony was inconsistent with the number of incidences alleged to
8

1 have occurred within the charging period. However the child was able to describe\
2 two incidents in detail. Defendant's motion for a directed verdict was denied and he
3 was convicted of two counts of CSCM. On appeal this Court reversed one of the
4 convictions holding that the evidence supported only one conviction because the
5 child's testimony could not reasonably be interpreted as establishing that she had
6 been touched more than once during the charging period. Id. 1 7.
7 	{18} 	In reversing this Court, our Supreme Court disagreed with out conclusion that
8 the record did not support the inference that the child had been touch~d multiple
9 times during the charging period. Id. 1 11. Concluding that the jury acted rationally
10 	in resolving factual inconsistencies in the child's testimony, our Supreme Court
11 	stated that "appellate courts faced with a record of historical facts that supports
12 conflicting inferences must presum~ven if it does not affirmatively appear in the
13 	record-that the trier of fact resolved any such conflicts in favor of the prevailing
14 party, and must defer to that resolution." Id. (alterations, internal quotation marks,
15 	and citation omitted). The Supreme Court clarified that "the applicable standard of
16 review does not contemplate our parsing the testimony and viewing the verdict only
17 in light of the probative value of individual pieces of evidence." Id. (alterations,
18 	internal quotation marks, and citation omitted).
19 	{19} 	In contrast to 	Sena, 	here, the jury did not resolve an inconsistency in
20 testimony, nor did it rely upon known benchmark events in C.B.'s life, which had
9

1 the capacity to establish approximate dates within the charging period. Rather, we
2 conclude it rendered its verdict based on supposition and conjecture. On at least one
3 occasion when asked how old she was during an instance of abuse she described at
4 trial, C.B. stated that she did not know. At trial the State did not establish a time
5 period for the abuse by evoking testimony based on benchmark dates such as
6 significant events in C.B.'s life. The State only asked C.B. how she remembered the
7 abuse, and when she answered, "I've always remembered it[,]" the State failed to
8 follow up with more probative questions to 	establish a time frame 	for each
· 9 occurrence. C.B.' s testimony was clear in describing specific acts of CSPM, and the
10 	locations in which they occurred, but lacked any information to establish that the
11 	acts occurred when she was under thirteen years of age. This is particularly notable
12 because the record reflected the abuse ended approximately a year after C.B. turned
13 	thirteen, leaving a one-year period in which the abuse described could have occurred
14 outside of the CSPM statute's reach.
15 	{20} 	Testimony from the State's other witnesses also fell short of establishing a
16 reasonable inference as to C.B.'s age for each act ofCSPM. While Jana testified that
17 	she remembered an incident where she walked into the den to find C.B. startled and
18 pulling up her pants quickly, Jana never stated how old C.B. was nor did she provide
19 any 	other 	chronological 	information. 	Mother's 	testimony 	was 	equally
20 uninformative. While, "no juror need have a precise day in his or her own mind in
· 10

1 order to vote for conviction[,]" a jury necessarily must determine that the elements
·2 of the charged offense are satisfied beyond a reasonable doubt. State v. Altgilbers,
3 	1989-NMCA-106, if 56, 109 N.M. 453, 786 P.2d 680
4 	{21} 	Without ·direct testimony regarding the time in which the sexual abuse
5 occurred the jury was left to determine as much from other evidence. The State
6 argues that the fact C.B. was playing with toys and markers at the time of some of
7 the assaults indicates she was under the age of thirteen. However, the fact that C.B.
8 was playing with toys at the time of the acts bears little, if any, relation to C.B.' s age
9 at the time. In fact the State made no attempt to illicit testimony from C.B. as to what
10 type of toys C.B. was playing with or at what age she quit using markers, if she ever
11 	did. 	Additionally, the State elicited testimony that C.B. suffered from a learning
12 	disability, which may have slowed lier mental development or otherwise delayed her
13 	progression toward maturity. The evidence presented by the 	State required a
14 	significant measure 	of speculation and 	conjecture 	by jurors to 	arrive 	at the
15 	conclusion that C.B. was under the age of thirteen when Defendant perpetrated each
16 	of the CSPMs. Likewise the evidence of grooming and that of C.B.'s "sexual
17 activity" with a neighbor boy fall short of creating an inference that C.B. was under
18 the age of thirteen when all of the charged CSPMs took place. C.B. was never asked
19 and did not testify that any of the CSPMs she described took place before or shortly
20 after she was discovered engaging in "sexual activity" with the neighbor boy. Based
11

1 on the foregoing we find the evidence insufficient to support the jurors determination
2 that C.B. was under the age of thirteen when Defendant committed six of the seven
3 acts of CSPM.
4 	CONCLUSION
5 	{22} 	We 	affirm one 	of Defendant's convictions, 	and reverse 	and vacate the
6 remaining six. We remand this case to the district court for resentencing.
7 {23} 	IT IS SO ORDERED.
8
9
10 	WE CONCUR:
.
13f.~
14 	J. MILES HANISEE, Judge
12