                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-1792

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                   Jay Dean Uldrych,
                                       Appellant.

                                 Filed March 9, 2015
                                       Affirmed
                                  Toussaint, Judge*

                            Hennepin County District Court
                               File No. 27-CR-12-8907

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Gary A. Gittus, Gittus Law Offices, Rochester, Minnesota (for appellant)

      Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and

Toussaint, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

TOUSSAINT, Judge

       Appellant challenges his convictions of second-degree criminal sexual conduct,

arguing that: (1) the district court erred in excluding expert witness testimony about a

sleep disorder that he asserts is relevant to his defense; (2) the evidence is insufficient to

support the jury’s verdict; and (3) his trial counsel was ineffective. We affirm.

                                      DECISION

                                              I.

       Appellant Jay Dean Uldrych argues that the district court erred by excluding his

expert witness from testifying about a sleep disorder diagnosis known as sexsomnia. The

admissibility of expert testimony is governed by Minn. R. Evid. 702. That rule permits

admission of expert testimony if: “(1) the witness is qualified as an expert; (2) the

expert's opinion has foundational reliability; (3) the expert testimony is helpful to the

jury; and (4) if the testimony involves a novel scientific theory, it must satisfy the Frye-

Mack standard.” State v. Obeta, 796 N.W.2d 282, 289 (Minn. 2011). At issue here is the

final factor, whether the doctor’s testimony regarding appellant’s sexsomnia diagnosis

satisfies the Frye-Mack standard. The parties do not dispute that this diagnosis required

consideration of novel scientific evidence that warranted a Frye-Mack hearing.

       The Frye-Mack standard contains two prongs. State v. Roman Nose, 649 N.W.2d

815, 818 (Minn. 2002). The first prong, whether the offered evidence is “generally

accepted in the relevant scientific community,” is a question of law that we review de

novo. Goeb v. Tharaldson, 615 N.W.2d 800, 814-15 (Minn. 2000). The second prong,


                                              2
whether the evidence has “foundational reliability,” focuses on whether the offering party

has “establish[ed] that the test itself is reliable and that its administration in the particular

instance conformed to the procedure necessary to ensure reliability.”               Id. at 814

(quotation omitted). We review the second prong under an abuse-of-discretion standard.

Id. at 815.

       At the Frye-Mack hearing, appellant’s expert testified that a person diagnosed with

sexsomnia will exhibit sexual behavior while sleeping, that this diagnosis is made after

the subject undergoes a sleep study and several other tests, that the diagnosis is often

related to sleep apnea and other sleep disorders, and that, based on his review of

appellant’s sleep study and supporting materials, the incident that formed the basis for the

criminal charges resulted from a sexsomnia-related episode. Appellant argues that the

evidence submitted to the district court demonstrates that the sexsomnia diagnosis has

been documented in numerous articles and studies, that the research provides ample

guidance regarding the nature of the disorder and its diagnosis, and that this evidence

provides adequate foundation for the admission of the expert testimony. The district

court determined that there was insufficient foundational reliability to admit the evidence

at trial because the expert did not comply with relevant safeguards and controls in

formulating his diagnosis. We agree.

       The purpose of the foundational reliability prong is to demonstrate that the

evidence “is reliable in that particular case.” Doe v. Archdiocese of St. Paul, 817 N.W.2d

150, 168 (Minn. 2012) (stating that foundational reliability analysis under Rule 702 and

Frye–Mack is nearly identical). This prong asks us to consider “whether the laboratory


                                               3
conducting the tests in the individual case complied with appropriate standards and

controls.” Roman Nose, 649 N.W.2d at 819. In this case, the literature that appellant

submitted to the district court recommends that medical examiners comply with several

tests and procedures to ensure an accurate sexsomnia diagnosis. These tests include

narcotics screening, a sleep study conducted over multiple nights with the subject’s

normal bed partner, a daytime sleep latency test, general medical evaluation, a sleep

disorder questionnaire, clinical interview of the subject and his or her bed partner, clinical

evaluation for specific physical signs of sleep disorders, a neurological and psychiatric

evaluation, and a neuroimaging.       The record demonstrates that the expert did not

substantially conform to these controls before making his diagnosis. Appellant’s sleep

study, which was performed by a different physician, lasted for less than seven hours,

without his normal bed partner.        And the expert did not conduct formal medical

evaluations, neurological screenings, or clinical interviews with appellant or his bed

partner. The district court issued a thorough and well-reasoned order that considered

these shortcomings. We conclude that its decision to exclude the testimony based on

these factors was not an abuse of its discretion.1

                                             II.

       Appellant also argues that the evidence is insufficient to uphold the jury’s verdict

that he was guilty of second-degree criminal sexual conduct. When reviewing a claim of

insufficient evidence, we conduct “a painstaking analysis of the record to determine

1
  Because we conclude that it was not an abuse of discretion to exclude the testimony for
lack of adequate foundational reliability, we do not address whether the sexsomnia
diagnosis is generally accepted by the scientific community.

                                              4
whether the evidence, when viewed in the light most favorable to the conviction,” is

sufficient to allow the jurors to reach a guilty verdict. State v. Ortega, 813 N.W.2d 86,

100 (Minn. 2012) (quotation omitted). Here, appellant contends that the evidence is

insufficient to demonstrate that he committed the sexual contact with “sexual or

aggressive intent.” See Minn. Stat. § 609.343, subds. 1(b), (g) (2012) (defining crimes of

second-degree criminal sexual conduct with which appellant was charged); Minn. Stat.

§ 609.341, subd. 11(a) (2012) (stating that sexual contact must be made with “sexual or

aggressive intent”).

       Generally, intent is established by circumstantial evidence. State v. Smith, 825

N.W.2d 131, 136 (Minn. App. 2012), review denied (Minn. Mar. 19, 2013). We apply a

two-step analysis in reviewing a conviction based upon circumstantial evidence. State v.

Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, we identify the circumstances

proved, deferring to the jury’s acceptance or rejection of evidence in support of those

circumstances.   State v. Hanson, 800 N.W.2d 618, 622 (Minn. 2011).             Second, we

examine independently the reasonable inferences that could be drawn from the

circumstances. Id. To uphold appellant’s convictions, the circumstances proved must be

consistent with the reasonable inference that appellant is guilty and inconsistent with any

other rational inferences. Id.

       At trial, the complainant, K.U., testified that appellant asked her to lie in his bed,

that he grabbed her and held her tightly, that he touched her breast both above and under

her clothing, and that he wrapped his legs over her to prevent her from moving. K.U.

also testified that appellant stopped her from leaving multiple times. Appellant argues


                                             5
that K.U.’s testimony is insufficient to convict because her testimony was inconsistent

with her description of the hotel room where the incident occurred and because the

evidence could also demonstrate that the sexual contact occurred after he fell asleep.

       But K.U.’s testimony was consistent with both the statement that she gave to a

forensic interviewer and with a letter that she wrote to her parents describing the event.

Her testimony is consistent only with the inference that appellant was awake during the

entire incident. And a review of the record demonstrates that her testimony is also

consistent with the layout of the hotel room where the contact occurred. The jury’s

verdict indicates that it believed K.U., and we defer to the jury’s credibility

determinations. See State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (stating that on

review, this court assumes that the jury “disbelieved any evidence to the contrary”).

       Likewise, the circumstances proven by K.U.’s testimony are consistent only with

the inference that appellant acted with sexual intent within the meaning of Minn. Stat.

§ 609.341, subd. 11(a).    “[A]n act is committed with sexual intent when the actor

perceives himself to be acting based on sexual desire or in pursuit of sexual

gratification.” State v. Austin, 788 N.W.2d 788, 792 (Minn. App. 2010), review denied

(Minn. Dec. 14, 2010). The purpose of establishing sexual intent is to ensure that contact

that is “accidental” or “innocuous” is not criminalized. Id. But sexual intent need not be

proven by direct evidence of a person’s desires or gratifications; it may instead be

inferred by the nature of the conduct itself. Id. Here, K.U.’s testimony demonstrates that

appellant touched her breast multiple times, that during the contact appellant used his legs

to restrain her, and that appellant deliberately prevented her from leaving.            These


                                             6
circumstances exclude the possibility of an innocent explanation for the sexual contact.

See State v. Vick, 632 N.W.2d 676, 691 (Minn. 2001) (concluding that nature of touching

negated possibility of innocent explanation).         We therefore conclude that there is

sufficient evidence to uphold the jury’s verdict.

                                               III.

         Finally, appellant argues that his trial counsel was ineffective for failing to enforce

subpoenas against: (1) a physician who treated appellant for sleep disorder and (2) his

children, who were present in the hotel room when the incident occurred, but lived out-

of-state at the time of trial. We examine a claim for ineffective assistance of counsel

under a two-pronged analysis. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); State v. Bobo, 770 N.W.2d 129, 137 (Minn. 2009). First, we consider

whether counsel’s representation “fell below an objective standard of reasonableness.”

Fields v. State, 733 N.W.2d 465, 468 (Minn. 2007) (quotation omitted). Second, we

determine whether “there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.” Id. (quotation omitted).

We review ineffective-assistance-of-counsel claims de novo.             Opsahl v. State, 677

N.W.2d 414, 420 (Minn. 2004). But on review, “[t]here is a strong presumption that

counsel’s performance was reasonable.” Boitnott v. State, 631 N.W.2d 362, 370 (Minn.

2001).

         Generally, the decisions regarding what evidence to present are matters of trial

strategy, which this court does not review in a claim for ineffective assistance. Andersen

v. State, 830 N.W.2d 1, 13 (Minn. 2013). Thus, trial counsel retains the discretion to


                                                7
determine what witnesses not to call, even when those witnesses allegedly possess

information that is relevant to the defendant’s theory of the case. State v. Loving, 775

N.W.2d 872, 882 (Minn. 2009). And here, the record indicates that trial counsel made

several attempts to enforce the subpoenas. We cannot conclude that these efforts were

objectively insufficient. Appellant’s ineffective-assistance claim therefore fails.

       Moreover, based on the record before us, we cannot conclude that appellant

suffered prejudice. We will not reverse a conviction for ineffective assistance of counsel

based on mere speculation that the defendant was harmed by counsel’s failure to call a

witness. State v. Morrison, 298 Minn. 179, 180, 213 N.W.2d 629, 631 (1974). Instead,

to demonstrate prejudice, appellant must prove “what evidence would have been

presented through witness testimony, or how the result of the proceedings would have

been different because of the witness testimony.” Loving, 775 N.W.2d at 882. Based on

the evidence in the record, appellant’s children were asleep when the incident occurred,

and his physician would have been able to testify only that appellant suffered from sleep

apnea. Appellant does not explain how the testimony of these witnesses would differ

from the evidence contained in the record or establish how this testimony would assist his

defense. For this reason as well, we reject appellant’s ineffective assistance claim.

       Affirmed.




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