State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0060

State of Minnesota,
Respondent,

vs.

Jay Rodney Richard Clayborne,
Appellant.

Filed December 14, 2020
Affirmed
Reilly, Judge

Dakota County District Court
File No. 19HA-CR-17-4780

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges his conviction for second -degree criminal sexual conduct,
arguing that the district court erred by limiting the testimony of his expert witness about a
sleep disorder he asserts was relevant to his defense. We affirm.
FACTS
This appeal arises out of appellant Jay Rodney Richard Clayborne’s conviction for
second-degree criminal sexual conduct against the victim, his daughter, in August 2017.
The victim testified that appellant was lying next to her on the couch watching a movie
when he removed her bra and touched her breast with his hand for four to five minutes.
The victim ran out of the room, but appellant followed her and grabbed her arm. The victim
ran into her bedroom and tried to slam her door, but appellant put his foot in the door and
blocked it from closing. Appellant then made the victim “pinky promise” not to tell anyone
that he touched her breast, and said he was sorry. The victim told her mother about the
sexual contact, and her mother reported the incident to the police.
Respondent State of Minnesota charged appellant with one count of second-degree
criminal sexual conduct. Appellant noticed his intent to raise a defense of “sexsomnia” or
“unconsciousness/acting while asleep.” The state requested a Frye-Mack hearing. T he
district court held an evidentiary hearin g to consider the state’s challenge to appellant’s
expert witness. Appellant’s expert witness is a doctor and a medical director of sleep -
medicine services. The doctor testified that “[t]here are several divisions and sleep disorder
types,” and “parasomn ia is a specific category of a type of sleep disorder.” The doctor

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explained that there are “several types of disorders under the heading of parasomnias,”
including a type “formally recognized as sleep -related abnormal sexual behaviors,” and
commonly known as “sexsomnia” or “sleep sex.”
The defense asked the doctor to explain the standard or procedure for “determining
if someone has this condition or diagnosing it.” The doctor testified that the diagnostic
process begins with a “formal consultation, ” which includes a review of the patient’s
medical history and a “complete review of the medical records that were appropriate for
the case.” The doctor noted that “it would be helpful to interview individuals, family
members, who might have observed such behaviors, and then of course at that point a direct
interview with the individual.”
As for appellant’s case, the doctor testified that he reviewed police reports, medical
records, and appellant’s criminal records. The doctor interviewed appellant but no one
else. The doctor testified that appellant’s behavior “certainly did suggest . . . sexsomnia.”
Even so, the doctor declined to give a “formal diagnosis of anything” for appellant and
reiterated, “I’m not providing a diagnosis. I think a diagnosis can be formally acquired
with subsequent clinical encounters.” Following the evidentiary hearing, the district court
granted the state’s motion to limit the doctor’s testimony. The district court held that the
doctor could testify about parasomnia disorders in general, including sexsomnia. But the
district court prohibited the doctor from testifying that appellant suffered from sexsomnia
when he touched the victim’s breast.
The district court held a jury trial in June 2019. The doctor testified about sleep -
related abnormal sexual behaviors known as “sexsomnia.” The doctor noted that a person

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suffering from sexsomnia would not “know who the other people around them are,” and
would be unable to seek out a specific person for sexual contact or otherwise “targ et an
individual [victim].” The doctor testified that he “would be skeptical” that a person had
sexsomnia if the person pulled the victim “to be next to them in their bed” or “walk[ed]
down a hallway into someone’s room.” He also testified that it was “generally true” that a
person with sexsomnia would not “attempt to conceal or cover up” their actions upon
waking. The jury found appellant guilty of criminal sexual conduct, and the district court
imposed sentence. This appeal follows.
D E C I S I O N
Appellant argues that the district court erred by prohibiting his expert witness from
testifying that appellant suffered from sexsomnia when he touched the victim’s breast. We
review a district court’s evidentiary determinations for an abuse of discretion, governed by
the harmless-error standard. State v. Smith, 940 N.W.2d 497, 505 (Minn. 2020) (citations
omitted). This includes evidentiary rulings “related to the admissibility of expert
testimony.” State v. Thao , 875 N.W.2d 834, 840 (Minn. 2016). Expert testimony is
admissible under Minnesota Rule of Evidence 702 if: (1) the witness qualifies as an expert,
(2) the expert’s opinion has foundational reliability, and (3) the expert testimony helps the
trier of fact. Doe v. Archdiocese of St. Paul , 817 N.W.2d 150, 164 (Minn. 2012). Rule
702 incorporates the Frye-Mack standard, which applies if the expert evidence “involves a
novel scientific theory.” Id.
The issue presented is whether the doctor’s proposed testimony satisfied the Frye-
Mack standard. Th is standard has two prongs. Id. at 165. Under the first prong, the

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underlying scientific theory must be “generally accepted in the relevant scientific
community.” Id. (quotation omitted). Under the second prong, “the particular scientific
evidence . . . must be shown to have foundational reliability.” Id. (quotation omitted). To
satisfy the second prong, the proponent of a scientific test must “establish that the test itself
is reliable and that its administration in the particular instance conformed to the procedure
necessary to ensure reliability.” Id. (quotation omitted). The first prong is a question of
law, which we review de novo. Goeb v. Tharaldson, 615 N.W.2d 800, 815 (Minn. 2000).
We review t he second prong for abuse of discretion. Id.; see also State v. Loving , 775
N.W.2d 872, 877 (Minn. 2009) (holding that rulings on foundational reliability are
reviewed for abuse of discretion).
The district court determined that appellant satisfied the fi rst prong of the Frye-
Mack standard.1 Yet the district court found that appellant failed to satisfy the second
prong because there was insufficient foundational reliability to support the doctor’s
testimony that appellant suffered from sexsomnia. The district court noted that the doctor
did not conduct “[a] long-term period of evaluation,” did not interview appellant’s spouse
or the victim, and did not try to “gather corroborating information or learn another
witness’s version of [appellant’s] alleged epi sode of ‘ sexsomnia.’” The district court
reasoned that “the test to establish whether an individual suffers from ‘sexsomnia’ may be

1 The district court determined that appellant satisfied the first prong of the test because
sexsomnia is generally accepted in the scientific community. Because we conclude that
the district court did not abuse its discretion by determining that the d octor’s proposed
testimony lacked foundational reliability, we do not consider whether sexsomnia is
generally accepted by the scientific community.

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reliable,” but “its administration in this particular instance did not conform to the procedure
necessary to ensure foundational reliability.” As a result, the district court determined that
appellant’s sexsomnia defense “ has not been shown to have foundational reliability and
therefore shall be excluded from testimony.”
We agree with the district court. “When determining wh ether an opinion is
foundationally reliable under Rule 702, the district court must analyze the proffered
testimony in light of the purpose for w hich it is being offered . . . [and] consider the
underlying reliability, consistency, and accuracy of the subject about w hich the expert is
testifying.” State v. Garland, 942 N.W.2d 732, 742 (Minn. 2020) ( citation and quotation
omitted). “Foundational reliability goes beyond a mere helpfulness standard,” and “looks
to the theories and methodologies used by a n expert.” Id. ( quotations omitted). The
proponent of the evidence has the burden of proving that the evidence is reliable. Jacobson
v. $55,900 in U.S. Currency, 728 N.W.2d 510, 529 (Minn. 2007).
Appellant argues that the doctor’s opinion has foundational reliability because the
doctor explained how to diagnose someone with sexsomnia and “followed these
established procedures” to evaluate appellant. Appellant’s arguments do not persuade us.
The doctor discussed the tests and guidelines used in the diagnostic process. The doctor
testified that it is “helpful” to interview friends and family members when diagnosing a
case of sexsomnia, and noted that a physical examination or a sleep study is “helpful” to
rule out other medical causes, such as sleep apnea. The doctor testified that he performed
a “forensic evaluation” on appellant and appellant’s behaviors “suggest[ed]” or were
“consistent with” a sexsomnia diagnosis.

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Even so, the doctor cautioned that his opinion “[a]ssum[ed] the credibility and
honesty of the defendant.” The doctor interviewed appellant for about an hour and a half,
reviewed the police report, and reviewed some of appellant’s medical records. But the
doctor did not interview the victim, the victim’s mother, or any of appellant’s famil y
members, friends, or former romantic partners , to gather corroborating information . The
doctor did not undertake a long -term period of evaluation to diagnose appellant with
sexsomnia. The doctor did not review appellant’s medical records from when he was a
child, when symptoms typically begin to appear. The doctor also acknowledged that he
did not find any previous mention of parasomnia behaviors in any of appellant’s medical
records. The doctor did not complete a physical examination or perform a sl eep study to
rule out other causes. The doctor agreed that the details of the case were “sparse,” and
noted that he had “limited information” on which to form an opinion. The doctor therefore
declined to give a “formal diagnosis of anything” for appellan t and reiterated, “I’m not
providing a diagnosis. I think a diagnosis can be formally acquired with subsequent clinical
encounters.”
As the district court noted, appellant never reported an episode of sexsomnia to a
doctor until after the state charged him with criminal sexual conduct. And the district court
did not prohibit the doctor from testifying; the district court permitted him to testify about
sexsomnia in general, but did not allow him to testify that appellant personally suffered
from sexsomnia when he touched the victim’s breast. At trial, the doctor agreed that a
person with sexsomnia would not “know who the other people around them are,” would be
unable to seek out a specific person for sexual contact, and would not “target an

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individual.” The doctor testified that he “would be skeptical” that a person had sexsomnia
if the person pulled the victim “to be next to them in their bed” or “walk[ed] down a hallway
into someone’s room.” The doctor also noted that a person with sexsomnia would not
“attempt to conceal or cover up” their actions upon waking.
The record establishes that the doctor failed to “reliably appl[y] the underlying
theories and methodologies ” to the appellant in this case. Garland, 942 N.W.2d at 742
(citing Doe, 817 N.W.2d at 168-69). The doctor performed a forensic evaluation bu t did
not conduct a complete physical examination, administer a sleep study, conduct interviews
with any other individuals, or fully review appellant’s medical records. And the doctor
admitted that he could not formally diagnose appellant with sexsomnia, given the limited
information available to him. Based on this record, w e discern no abuse of discretion in
the district court’s determination that the expert’s opinion lacked foundational reliability.
Because the doctor’s opinion lacked foundational reliability, it failed the second prong of
the Frye-Mack standard. We therefore affirm.
Affirmed.