[Cite as State v. Burke, 2016-Ohio-822.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                  No. 15AP-54
v.                                               :             (C.P.C. No. 13CR-0358)

Steven D. Burke                                  :       (ACCELERATED CALENDAR)

                 Defendant-Appellant.            :


                                           D E C I S I O N

                                      Rendered on March 3, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: Elizabeth A. Warren, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
        {¶ 1} Defendant-appellant, Steven D. Burke ("Burke"), appeals from a judgment
of conviction and sentence entered by the Franklin County Court of Common Pleas. For
the following reasons, we affirm the trial court's judgment.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On January 23, 2013, the Franklin County Grand Jury indicted Burke on
one count of felonious assault with specification, in violation of R.C. 2903.11, a felony of
the second degree, and one count of having a weapon while under disability, in violation
of R.C. 2923.13, a felony of the third degree.
        {¶ 3} Jamacan Sizemore ("Sizemore") testified that shortly after noon on
January 8, 2013, he was working on cars in the parking lot of an apartment complex near
870 Wedgewood Avenue, in Columbus, Ohio. Sizemore testified that he heard someone
say "what's up now?" and he turned and saw Burke, whom he had known for
approximately 17 years, standing within 5 feet of a "little silver car." (Tr. 91, 96.) Burke
No. 15AP-54                                                                              2

had a handgun and shot Sizemore 6 times. Burke then jumped into the passenger seat of
the car and left. (Tr. 87-98.) Witnesses, Christopher Thornton and Juanita Stewart,
testified that after the shooting, the gunman ran or "speed walked" a short distance to the
silver car and "hopped in and took off." (Tr. 335, 372.)
       {¶ 4} Burke argued that due to prior injuries, he was physically unable to commit
the crime and "run" from the scene. His mother, Sharon Ross, and sister, Tamirra Burke,
testified that he walked with a limp and used a cane and/or a walker at the time of the
shooting. (Tr. 483-87, 500-06.)
       {¶ 5} At first, Sizemore did not cooperate with the police. (Tr. 104-10.) However,
eventually he identified Burke as the assailant, and later testified that he had "no doubt"
Burke was the shooter because he saw him and looked "dead in his face" as Burke pulled
out a gun and shot him. (Tr. 92-98, 108-10.)
       {¶ 6} Paul Dille testified that he drove Burke to the area of the shooting, and that
Burke pulled a gun out of his waistband and exited Dille's car when Burke saw Sizemore.
Burke did not have a cane and was not walking with a limp that day. Dille says he heard
the shots but did not actually see the shooting. Burke got back into the car quickly,
pointed his gun at Dille and told him to "go." (Tr. 430.) Dille complied and drove Burke
away. Another witness, Dylan Roller, testified that Dille was very upset shortly after the
shooting, and that Burke told Dille to get rid of the car. (Tr. 282-84.)
       {¶ 7} The jury convicted Burke of felonious assault with a gun specification. The
court convicted Burke of having a weapon while under a disability. He was sentenced to
10 years in prison.
II. ASSIGNMENT OF ERROR
       {¶ 8} Burke appeals, assigning the following errors:
              I. THE TRIAL COURT ERRED WHEN IT ENTERED
              JUDGMENT AGAINST THE APPELLANT WHEN THE
              EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
              CONVICTION.

              II. APPELLANT WAS DENIED THE EFFECTIVE
              ASSISTANCE OF COUNSEL THEREBY DEPRIVING HIM
              OF THE RIGHT TO A FAIR TRIAL UNDER THE STATE
              AND FEDERAL CONSTITUTIONS.
No. 15AP-54                                                                                 3

III. ASSIGNMENT OF ERROR ONE—CONVICTIONS DID NOT LACK
SUFFICIENT EVIDENCE, NOR WERE THEY AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE

       {¶ 9}   Burke argues that the evidence was insufficient to support his convictions.
Sufficiency of the evidence is a legal standard that tests whether the evidence
introduced at trial is legally sufficient to support a verdict. State v. Thompkins, 78 Ohio
St.3d 380, 386 (1997). We examine the evidence in the light most favorable to the state
and conclude whether any rational trier of fact could have found that the state proved,
beyond a reasonable doubt, all of the essential elements of the crime. State v. Jenks, 61
Ohio St.3d 259 (1991).
       {¶ 10} A challenge to the sufficiency of the evidence is properly made where a
defendant asserts that the state failed to produce any evidence related to one or more
elements of an offense. Burke has not raised any arguments regarding the sufficiency of
the evidence. Instead, Burke asserts that the state's witnesses lacked credibility. As such,
in the interest of justice, we will construe Burke's first assignment of error as raising both
sufficiency and manifest weight of the evidence issues.
       {¶ 11} This court in State v. Baatin, 10th Dist. No. 11AP-286, 2011-Ohio-6294, ¶ 8-
11, addressed the applicable law:
               Although sufficiency and manifest weight are different legal
               concepts, manifest weight may subsume sufficiency in
               conducting the analysis; that is, a finding that a conviction is
               supported by the manifest weight of the evidence necessarily
               includes a finding of sufficiency. State v. McCrary, 10th Dist.
               No. 10AP-881, 2011-Ohio-3161, ¶ 11 (citing State v. Braxton,
               10th Dist. No. 04AP-725, 2005 Ohio 2198, ¶15). Thus, a
               determination that a conviction is supported by the weight of
               the evidence will also be dispositive of the issue of sufficiency.
               Id.; State v. Sowell, 10th Dist. No. 06AP-443, 2008 Ohio
               3285, ¶89.

               The weight of the evidence concerns the inclination of the
               greater amount of credible evidence offered to support one
               side of the issue rather than the other. State v. Thompkins, 78
               Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. * * *

               When presented with a challenge to the manifest weight of the
               evidence, an appellate court may not merely substitute its
               view for that of the trier of fact, but must review the entire
No. 15AP-54                                                                              4

              record, weigh the evidence and all reasonable inferences,
              consider the credibility of witnesses and determine whether in
              resolving conflicts in the evidence, the trier of fact clearly lost
              its way and created such a manifest miscarriage of justice that
              the conviction must be reversed and a new trial ordered. Id. at
              387. An appellate court should reserve reversal of a conviction
              as being against the manifest weight of the evidence for only
              the most " 'exceptional case in which the evidence weighs
              heavily against the conviction.' " Id.; State v. Strider–
              Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.

              In addressing a manifest weight of the evidence argument, we
              are able to consider the credibility of the witnesses. State v.
              Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6.
              However, in conducting our review, we are guided by the
              presumption that the jury * * * " 'is best able to view the
              witnesses and observe their demeanor, gestures and voice
              inflections, and use these observations in weighing the
              credibility of the proffered testimony.' " Id. (quoting Seasons
              Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 Ohio B.
              408, 461 N.E.2d 1273. Accordingly, we afford great deference
              to the jury's determination of witness credibility. State v.
              Redman, 10th Dist. No. 10AP-654, 2011 Ohio 1894, ¶26
              (citing State v. Jennings, 10th Dist. No. 09AP-70, 2009 Ohio
              6840, ¶55). See also State v. DeHass (1967), 10 Ohio St.2d
              230, 227 N.E.2d 212, paragraph one of the syllabus
              (credibility determinations are primarily for the trier of fact).

       {¶ 12} Burke argues that the state's witnesses lacked credibility. Burke claims that
he "is serving a ten-year sentence primarily because two people identified" him as the
shooter. (Appellant's Brief, 15.) Burke alleges that Sizemore is not believable because he
initially denied to the police knowing who shot him. Burke attacks Dille's testimony
because, at the time of the shooting, Dille was a "drug addict" who was "currently using
heroin" and had severe "mental health issues." (Appellant's Brief, 16.)
       {¶ 13} Firstly, "[a] conviction is not against the manifest weight of the evidence
because the jury chose to believe the state's version of events over the defendant's
version." State v. Hawk, 10th Dist. No. 12AP-895, 2013-Ohio-5794, ¶ 59. A lack of
physical evidence does not warrant interfering with the jury's decision or preclude a
conviction. See State v. Hunter, 10th Dist. No. 10AP-599, 2011-Ohio-1337, ¶ 24. In
addition, the testimony of one witness, if believed by the jury, is enough to support a
conviction. State v. Strong, 10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42.
No. 15AP-54                                                                                  5

         {¶ 14} Sizemore testified that he had known Burke for a long time and that,
without any doubt in his mind, Burke was the person who had shot him. Dille testified
that he drove Burke to the scene, saw Burke pull out a gun immediately after seeing
Sizemore, saw Burke exit the vehicle, heard the gunshots, and drove Burke away from the
scene.
         {¶ 15} Based on the guilty verdict, the testimony of Sizemore, Dille, and others,
convinced the jury that Burke was the shooter. The jury was in the best position to
evaluate the witnesses' credibility, and there is no persuasive reason for rejecting that
determination.
         {¶ 16} After a thorough review, we find that the jury did not lose its way, nor create
a manifest miscarriage of justice. We find that the evidence in the record supports the
jury's and court's verdicts. Accordingly, Burke's convictions are not against the manifest
weight of the evidence. This conclusion is also dispositive of Burke's claim that his
convictions are not supported by sufficient evidence. State v. McCrary, 10th Dist. No.
10AP-881, 2011-Ohio-3161, ¶ 17. Therefore, we overrule Burke's first assignment of error.
IV. ASSIGNMENT OF ERROR                       TWO—NO         DENIAL       OF    EFFECTIVE
ASSISTANCE OF COUNSEL
         {¶ 17} Burke argues in his second assignment of error that he was denied effective
assistance of counsel because his attorney failed to present doctor's statements that would
have demonstrated that Burke was physically incapable of committing the crime due to
his physical health and eye vision. We disagree.
         {¶ 18} To establish a claim of ineffective assistance of counsel, defendant
must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984). Burke
must show that (1) defense counsel's performance was so deficient that he or she
was not functioning as the counsel guaranteed under the Sixth Amendment to the United
States Constitution, and (2) that defense counsel's errors prejudiced defendant. Id. The
failure to make either showing defeats a claim of ineffectiveness of trial counsel. Id.
at 697. In addition, "[j]udicial scrutiny of counsel's performance must be highly
deferential * * * [and] a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance." Id. at 689;
State v. Bradley, 42 Ohio St.3d 136, 143-44 (1989).
No. 15AP-54                                                                              6

       {¶ 19} A claim of trial counsel ineffectiveness usually will be unreviewable on
appeal because the appellate record is inadequate to determine whether the omitted
objection, motion, or defense really had merit and/or because the possible reasons for
counsel's actions appear outside the appellate record. United States v. Galloway, 56 F.3d
1239, 1240 (10th Cir.1995), en banc.
       {¶ 20} Ohio law similarly recognizes that error cannot be recognized on appeal
unless the appellate record actually supports a finding of error. A defendant claiming
error has the burden of proving that error by reference to matters in the appellate record.
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). There must be sufficient
basis in the record upon which the court can decide that error. Hungler v. Cincinnati, 25
Ohio St.3d 338, 342 (1986).
       {¶ 21} In this case, Burke points to nothing in the record to support this claim. In
fact, the record does not contain any evidence that such doctor's statements actually
existed. In the absence of any indication that there was some medical evidence of his
alleged physical limitations to be presented, Burke cannot overcome the presumption that
his counsel was effective. Furthermore, Burke cannot show that he was prejudiced in any
manner by the actions or inactions of his counsel. As a result, Burke's second assignment
of error lacks merit. Accordingly, the second assignment of error is overruled.
V. DISPOSITION
       {¶ 22} Having overruled Burke's assignments of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
                                                                      Judgment affirmed.

                               TYACK, J., concurs.
                    LUPER SCHUSTER, J., concurs in judgment only.
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